Can you be libeled by a fictional character?

A character on the CBS program “The Good Fight” called Alan Dershowitz a shyster. Is that libel?

Dershowitz says yes. The producers of the show say no. So let’s get into it.

There are really two questions here. First, can a fictional character’s statements be a cause for libel? And second, is what the character said actually libelous?

The Dershowitz position and the CBS response

Here’s part of what Dershowitz’ lawyer says:

We have been retained to address defamatory statements made during an episode of CBS All Access’ The Good Fight, titled “The Gang Discovers Who Killed Jeffrey Epstein,” which originally aired on May 28, 2020 (Season 4, Episode 7). Professor Dershowitz requests that CBS promptly retract the defamatory content, and issue a public apology to Professor Dershowitz.

In the episode, a character intended to be Jeffrey Epstein’s fictious prior attorney “Benjamin Dafoe” played by actor David Alford, makes the following statement:

“Probably about the time he ditched me for Dershowitz. At least I didn’t get a massage, like that shyster. And for the purposes of any potential lawsuit shyster is just my opinion not a statement of fact.”

The statement, in whole and in part, is tortious and constitutes both defamation per se and defamation by implication. The episode in question is centered on the criminal allegations made against Jeffrey Epstein and his ultimate death. Clearly, the dialogue and the context in which it is made, with words loaded with innuendo such as ‘massage,’ ‘Epstein,’ the ‘Virgin Islands,’ in combination with the word ‘shyster,’ falsely suggests that Professor Dershowitz engaged in sexual conduct, i.e. a ‘massage,’ with an underage girl associated with Epstein, and is crooked, unscrupulous and lying about it, i.e. a ‘shyster.’

Furthermore, use of the term “shyster” to describe Professor Dershowitz is defamation per se. The term “shyster” is defined as follows: “a person who is professionally unscrupulous especially in the practice of law…” and “a rascally” lawyer; one that is “shrewdly dishonest.” Some even attribute an anti-Semitic connotation to the term. CBS’s use of the term “shyster” to describe Professor Dershowitz is a direct attack on his professional reputation as an attorney and professor of law. A statement that is a “direct attack upon the business, trade or profession of the plaintiff is considered defamation ‘per se.’ ” (Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 180 [2d Cir. 2000] [quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts  112, at 791 [5th ed. 1984] “[I]t is actionable without proof of damage to say … of an attorney that he is a shyster … since these things discredit [one] in his chosen calling.”) . . .

Professor Dershowitz requests that CBS promptly retract the defamatory content, cease and desist from further airing the defamatory content, and issue a public apology to Professor Dershowitz. Please have your legal representative contact our office to discuss further.

Here are the relevant parts of the CBS response:

Dear Mr. Ansari:

If we understand your letter correctly, you are complaining about a line spoken by a fictional character, in an episode of the fictional series “The Good Fight” (the “Series”). You make this complaint on behalf of Professor Alan Dershowitz, a public figure who has long been associated with Jeffrey Epstein, and who has admitted on television to receiving a massage from a woman at Epstein’s mansion. In the non-fictional world, these factors require us to decline your request that we withdraw the episode, and our correspondence could end right here. . . .

The character whose lines you cite in your letter is made-up as well. Benjamin Dafoe is not a real lawyer; on the Series, he’s Epstein’s “fictitious prior lawyer,” as your letter acknowledges. In other words, as one might explain to a small child, the Series, its characters and the things they say are all make-believe. People don’t watch the Series for factual information about Professor Dershowitz or anyone else.

Although the Series is a work of fiction, its writers strive for accuracy when referring to people or events from the real world. When it comes to Professor Dershowitz getting a massage at Epstein’s house, the writers were spot-on. In a televised interview broadcast on WPLG-TV in Miami on April 17, 2019, Professor Dershowitz admitted on camera that he got a massage from a woman at an Epstein mansion. In fairness, Professor Dershowitz claimed that he “kept [his] underwear on during the massage.” A more benign mental image than what the mind might otherwise conjure, so at least there’s that.

With the Professor’s massage at Epstein’s place now beyond dispute, we’re left with one word you don’t like – “shyster,” spoken by a fictional character and expressly phrased as opinion. As your own case authority holds, the law does not impose liability for expressions of opinion, in contrast to verifiably true or false statements of fact.

The same is true in the context of a comment on a fictional show . . . because “[v]iewers are generally familiar with dramatized [shows] in which scenes, conversations, and even characters are fictionalized and imagined.”) We’re confident that no viewer would conclude that Professor Dershowitz is a shyster based on one line of opinion from a fictional character on the Series, as opposed to the real-life, factual publications that have called him exactly that. See, e.g.., “From Scholar to Shyster, Alan Dershowitz Does Revisionist Law, Disowns His ‘1998 Off-the-Cuff Interview’” (PolitiZoom, January 21, 2020).

Note: Although nobody takes “shyster” as a compliment, we cannot agree with your assertion that the word is anti- Semitic. The same allegation has been debunked elsewhere, including in the New York Law Journal’s review of the history of the term, which concluded that “shysters come in different religions.” (“Is ‘Shyster’ Anti-Semitic,” New York Law Journal, May 21, 2003).

Dershowitz’ claim is absurd

I come down squarely on the side of CBS on this one.

First off, fictional characters can’t be held responsible for libel. (Note that this is my opinion and I am not a lawyer; please consult an actual lawyer if you are in this situation.)

If I create a character running for president, named “Bo Jiden,” and if Mr. Jiden claims that Donald Trump is a tax cheat, an adulterer, or a corrupt politician, then you can’t blame me. And you can’t sue Bo Jiden, since he doesn’t exist.

I imagine there are limits to this. If I create a show that includes only one character, and that character exists only for the purpose of spreading lies about a person, then the person who was unjustly criticized might have a case. But in the case of CBS and anyone else creating a clearly fictional drama, I don’t think there is a case for libel by fictional characters.

I do think producers are worried about this sort of thing. That’s the reason that “Law & Order” plots are “ripped from the headlines” — but tend to use aliases rather than the names of actual people. It helps fend off complaints like this one.

There may be an interesting grey area here. Alex Jones’s lawyer says he shouldn’t be held responsible for libel because he is a “performance artist playing a character.” This stretches credulity — surely all the people watching Alex Jones imagined that he was actually Alex Jones being himself. On the other hand, when Stephen Colbert was on “The Colbert Report,” he said he was not being himself, but a character called “Stephen Colbert.” Did that mean he couldn’t be sued for libel?

While those cases may be confusing, CBS’s case isn’t. No one imagines that its fictional characters are real, so their opinions can’t be libelous.

The second interesting question is whether calling somebody a “shyster” could ever be actionable.

I don’t think so.

If I call a writer a “hack,” or a sports figure a “loser,” or a television talking head “a deranged idiot,” those are characterizations without specific definitions. Are they mean? Sure. But they’re not actionable. And neither is “shyster.”

Dershowitz really ought to know better. If you’re in the public eye, you’re going to be satirized and criticized. Fighting it legally just makes you look like . . . well, like a shyster.