Docs & the Law Blog

Penn Law

Errol Morris Sued by His Documentary Subject — Again

January 18, 2014
  • Filmmaker Errol Morris. Photo credit: Stuart Caie   (Creative Common license:
    Filmmaker Errol Morris. Photo credit: Stuart Caie (Creative Common license:

By Tom Isler


McKinney v. Morris, No. B240830, 2013 WL 5617125 (Cal. Ct. App. 2d Dist. Oct. 15, 2013)


Errol Morris is no stranger to being sued by his documentary subjects. After Morris’s film The Thin Blue Line led to the exoneration of death-row inmate Randall Adams, Adams famously showed his gratitude by suing Morris for misappropriating his life story. Morris originally bought a two-year option on Adams’s life story for $10, and promised $40,000 if a TV movie was made and $60,000 for a dramatic theatrical film release. Adams’s suit alleged that Morris missed a second $10 payment when the two-year term elapsed, which would have given Morris lifelong rights to the story, and that The Thin Blue Line was actually a dramatic theatrical release – not a documentary – triggering a $60,000 payment. (AMPAS was similarly confused, and wouldn’t allow the film to qualify for an Academy Award in the documentary category that year.) The matter settled.


Recently, Morris found himself back in court, this time as defendant in a suit by Joyce McKinney, the American beauty queen and 1970s tabloid sensation at the heart of Morris’s 2010 film, Tabloid. In 1977, McKinney was charged with kidnapping Kirk Anderson, a Mormon missionary living in England, spiriting him away to a country cottage, tying him to a bed and forcing him to have sex with her for three days. According to McKinney, who allegedly planned to marry Anderson, the sex was consensual, and she was attempting to free Anderson from the clutches of the Mormon Church. She was jailed for three months awaiting trial, and, after posting bond, fled England. British authorities never prosecuted her. Morris discovered McKinney in 2008, when he read a news article about her successful effort to clone her pit bull, Booger, that made a passing reference to the tabloid scandal.


Morris’s film uses the McKinney saga as an opportunity to explore tabloid journalism and the intersection (or divergence) of truth, sex, religion, money and newsprint. (Watch the trailer.) The film premiered in 2010 at the Toronto International Film Festival, and opened in theaters the following summer.


In November 2011, McKinney brought an 11-count complaint against Morris in the Superior Court of Los Angeles County, in which she alleged that Morris and others involved in the film’s production and distribution defamed her, invaded her privacy and intentionally inflicted emotional distress on while in additions to defrauding and coercing her into participating in the project and signing a release to use the footage of her and other material in the film. Among other things, the suit asked the court to consider whether the subject of a 30-year-old tabloid story was a public figure, whether a film that didn’t include explicit criticism of the tabloid journalism was about tabloid journalism, and whether a release was valid if it was signed under threat of harm to McKinney’s dog.


In addition to elaborating on documentarians’ protections from tort claims based on defamation and invasion of private, the suit also opened an interesting window onto Morris’s production process of the film regarding consent and subject participation.


The Lawsuit


Essentially, McKinney alleged that the filmmakers misrepresented the nature and focus of the project to her to gain her participation and later coerced her into signing release forms to use the interview footage. She also claimed that the film presented a false and damaging portrait of her and the events, which harmed her reputation.


In response, the defendants invoked a special law in California, called an Anti-SLAPP statute (SLAPP is an acronym for Strategic Lawsuit Against Public Participation), which protects journalists or other individuals or organizations that have exercised free speech rights. The law provides a mechanism for accelerated review of claims arising from free speech activity; the causes of action will survive only if the court determines that that there is a probability that plaintiff will prevail on the merits of the claims. The defendants moved to strike six of the 11 claims in the complaint, arguing that their filmmaking was protected activity under the First Amendment and state law, and that their portrait of McKinney was not defamatory.


Judge James Steele granted the motion to strike in large part, ruling that defendants established that McKinney’s claims arose from the creation and distribution of Tabloid and that the defendants’ conduct was protected by a constitutional right to free speech. The trial court determined that the film’s subjects – tabloid journalism, cultism, the Mormon religion – were issues of public interest and McKinney was a limited-purpose public figure. Because McKinney failed to show that defendants acted with “actual malice” under the standard set by New York Times v. Sullivan, 376 U.S. 254 (1964), Judge Steele struck the misappropriation, privacy and defamation claims. However, to the extent her intentional infliction of emotional distress claim was based on outrageous conduct other than activity protected by the Anti-SLAPP statute, Judge Steele denied the motion to strike. Plaintiff appealed.


The California Second District Court of Appeal, Division Eight, affirmed. The Court of Appeals first considered whether the challenged claims arose from the defendants’ conduct in furtherance of the First Amendment rights to free speech on a public issue (they did), and then considered whether McKinney showed a probability of prevailing on any of the challenged claims (she did not).


McKinney did not challenge the notion that documentary filmmaking was an exercise of free speech but rather claimed that Tabloid did not concern a “public issue or matter of public interest.” Instead, she argued that the film focused only on her “life, personality and the role in the Manacled Mormon story,” which no longer were matters of public interest, especially in light of her attempts to live outside of the public eye for 30 years. Her attorneys also argued that the film could not be characterized as concerning the topic of tabloid journalism “because it does not provide any direct critical analysis of tabloid journalism.”


Associate Justice Elizabeth A. Grimes, writing for a three-judge panel, rejected McKinney’s arguments, including the notion that the film needed to include an academic discussion of tabloid journalism in order to concern a matter of public interest. “What is left unsaid, leaving the viewer to draw his or her own conclusions, may speak volumes and is not a less deserving form of expression than the direct and obvious,” Justice Grimes wrote. She concluded that the “film presents a view of how the tabloid media operates as seen through the lens of plaintiff’s personal experiences in the maelstrom of the Manacled Mormon media circus.” While the film included additional aspects of McKinney’s life, such as the cloning of Booger, “the overall theme of Tabloid nevertheless concerns the broader subject of tabloid journalism” and the “tabloid journalism and the oftentimes questionable tactics of tabloid reporters and paparazzi photographers are matters of widespread public interest.”


Next, Justice Grimes held that McKinney could not show a probability of prevailing on any of the challenged claims, because defendants had a constitutional defense under the First Amendment and newsworthiness or public interest defenses based on statutes and the common law. First, Justice Grimes determined that McKinney was a limited-purpose public figure because she agreed to be interviewed on film (even if she disputed the circumstances of signing her release) and thereby “voluntarily and affirmatively injected herself into a public discussion about the tabloid media, their tactics and how they purported present or misrepresent the truth, and ‘destroy’ privacy.”


Then Justice Grimes concluded that McKinney failed to show, by clear and convincing evidence that Morris and the defendants acted with “actual malice,” meaning that they realized that a statement in the film was false or that they entertained serious doubts about the truth of the statement. McKinney argued that producer Mark Lipson showed ill will or hostility toward her, that Morris and Lipson’s promotional statements about the film revealed actual malice and that Morris failed to include certain material in the film that corroborated her story and contradicted the tabloid narrative on certain points.


Justice Grimes rejected each argument. Even if Lipson was “insensitive, even boorish” regarding personal interactions with McKinney, she wrote, that fact did not show that Morris “harbored doubts about the accuracy of the material presented in the film.” Promotional statements, which indicated that parts of McKinney’s story would always be unknowable, did not constitute clear and convincing evidence of actual malice. Justice Grimes wrote that most of the statements “actually defeat a finding of actual malice” because they revealed the filmmakers’ “beliefs they did not feel it was possible to know the absolute truth” and how the “movie presents, in essence, an open-ended unresolvable question about what actually happened, how the truth can be manipulated or obscured, or even innocently altered by each narrator’s own subjective view of the circumstances.” Justice Grimes accepted Morris’s explanation for withholding certain material that the sheer volume of material necessitated editing, and Morris was unable to establish the origins and authenticity of the material McKinney wanted Morris to use. In addition, the film itself cast doubt on the truth of the tabloid narrative of McKinney’s story. Justice Grimes said that the “bias” of the tabloid journalist “appears plain and no reasonable viewer would place great weight on his hyperbolic statements of opinion … .”


Justice Grimes also concluded that California’s “public interest” or “newsworthiness” defense to common-law misappropriation claims, and, because the film concerned a topic of public interest, the defense would defeat McKinney’s claims.


The Court of Appeal affirmed the trial court’s order, and permitted the defendants to recover costs and attorneys fees for the appeal. The lawsuit continued to consider whether, in the process of obtaining McKinney’s consent and releases, the conduct of the filmmakers was tortious.


Legally, the decision – unpublished and non-precedential – doesn’t break new ground. There was little doubt that the film concerned a matter of public interest, given the media attention McKinney had received over the years, and given the film’s implicit commentary on tabloid journalism, which continues to be a significant cultural phenomenon. (It didn’t hurt that Tabloid was released as the News of the World phone-hacking scandal broke.) It is also unsurprising that McKinney was found to be a limited-purpose public figure, and that she lacked clear and convincing evidence of actual malice.


However, the court never had to decide whether McKinney was a limited-purpose public figure based only on the press she received at the time of her arrest, thirty years prior to filming. Justice Grimes stressed that McKinney thrust herself into the spotlight by agreeing to sit for an interview with Morris, and thus she joined the public conversation about tabloid coverage. Left undecided was whether McKinney would have been considered a limited-purpose public figure if, for instance, filmmakers made an unauthorized or unsanctioned film about the scandal and resulting media frenzy without McKinney’s participation. Indeed, filmmakers might have enjoy weaker legal protection if they focus on historical events and (mostly) private citizens who have long been out of the public eye. Simply having subjects sit for interviews can fortify a filmmaker’s legal position against claims of defamation. 


The court also sidestepped, for now, the circumstances of her signing the release. Justice Grimes felt the details were irrelevant for the purposes of appeal, because McKinney voluntarily sat for the interview. It will be interesting to see how the trial court weighs the competing versions of how the release was signed, and whether allegedly mildly coercive tactics could void McKinney’s consent. That could have big financial repercussions for Morris’s team, and instructive value for other filmmakers.


This case is a reminder that subjects might have very different expectations from the filmmakers of what the final product will look like. Those expectations might be the result of misrepresentations – as McKinney claims – or it may be subjects getting caught up in their own fantasies of the glamour of being in the spotlight. The disconnect also can stem from different perspectives on what’s most interesting or salient about a person’s story; objective outsiders might key on different events or aspects of a person’s life than if the subject were making an autobiographical project. Even media savvy subjects can have a hard time imagining what it will feel like to see themselves on film, and bruised egos or sudden disillusionment can result in lawsuits. The more honest filmmakers can be with their subjects, the more likely everyone is to be on the same page. Still, it requires some skill to disclose enough about the vision for the project to be truthful, without inhibiting or discouraging subjects from participating.


Filmmakers should also note the role that publicity statements played in the lawsuit. Justice Grimes considered in detail statements Morris made while publicizing the film, including Tweets Morris wrote. Now that Q&As are filmed and streamed online, and social media widely broadcasts impulsive statements, filmmakers have to be very careful about what they say about their subjects, especially difficult subjects that, at different points, have demonstrated reservations about participating in the project. 


NOTE: In a separate post, I’ll discuss the glimpse into Morris’s production process that the opinion provided.