Court backs dismissal of suit veteran filed vs. Michael Moore
Filmmaker Michael Moore did not defame an Iraq war veteran in the movie "Fahrenheit 9/11" by using without his permission a televised interview of the Army reservist recorded days after he lost his arms in a helicopter repair accident, a federal appeals court in Boston has ruled.
The US Court of Appeals for the First Circuit upheld a federal judge's decision to dismiss the defamation complaint by Peter J. Damon of Middleborough, who lost his arms in Oct. 2003 when a tire on a Black Hawk helicopter exploded as he serviced the aircraft at a National Guard facility in Balad, Iraq.
The appeals court rejected the argument that Moore's use of a 16-second excerpt of an NBC interview with the reservist at Walter Reed Army Medical Center in Washington falsely conveyed that Damon agreed with the movie's blistering criticism of the war and of President Bush.
"While a reasonable viewer could conclude that the documentary itself espouses an antiwar and anti-commander in chief message, no viewer could reasonably conclude that Damon shares any political or ideological kinship with Moore," Judge Aida Delgado-Colon wrote on behalf of the court.
During the interview that Brian Williams conducted 10 days after Damon was injured, the heavily sedated and bandaged reservist said that he felt as if he still had hands and that they were being crushed in a vise. But he said a new pain blocker was making it more tolerable.
Moore featured the clip shortly after US Representative James A. McDermott of Washington spoke about the Bush administration and said, "They say they're not going to leave any veteran behind, but they're leaving all kinds of veterans behind."
Jonathan M. Albano, the Boston lawyer who defended Moore and other individuals and corporations that produced and distributed the controversial 2004 documentary, said yesterday that he was pleased that the appeals court agreed on March 21 with US District Judge Douglas P. Woodlock. Woodlock dismissed the suit in December 2006 before it could go to trial.
"Our position was that Mr. Damon had the right to disagree with the message of the movie," Albano said. "But the film, reasonably viewed, did not portray him as lining up on one side or the other of the war debate."
Damon could not be reached for comment. His lawyer, Donald J. Feerick Jr. of New York, said his client might appeal to the US Supreme Court.
Feerick had argued before the appeals court that Woodlock had erred by assessing what a reasonable viewer would conclude when watching Damon's appearance in the film. It was also crucial, he said, to consider what Damon's military brethren inferred. He said Damon told him fellow soldiers were appalled by his segment and considered it an act of disloyalty.
Although Woodlock wrote that Damon's clip actually showed a soldier handling pain with "great dignity" and transcending the war debate, Feerick said yesterday that that was not why Moore used it.
"It made the cut because of the absence of dignity," Feerick said. "He's shown in a shower cap, doped up, with tubes sticking out of him in what he views as the weakest moment of his life."
Jonathan Saltzman can be reached at jsaltzman@globe.com.
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