Miltenberg: “Could Jerry West Topple the Docudrama?”, The New Yorker

6.2.22

In the first episode of “Winning Time,” the HBO series about the nineteen-eighties ascent of the Los Angeles Lakers, we meet Jerry West, the former player turned Lakers head coach, early on. “Your cocksucking, motherfucking, buttfucking billboards don’t play the game of fucking basketball,” he screams during a round of golf, snapping a club over his knee. West, played by Jason Clarke, is addressing the team’s incoming owner, Jerry Buss (John C. Reilly), who wants to draft Magic Johnson, in part because his smile would look good on a billboard. Later, West delivers another expletive-filled rant in his office, and Buss advises, “Listen, I used to drink a lot of bourbon. I switched to vodka. You can smell it less. Just a tip.” At the end of the episode, after Buss recruits Johnson, West hurls his M.V.P. trophy through a window. In recent years, prestige docudramas that retrace events from the not-too-distant past have flooded television. You can even break them down into overlapping subgenres: true crime (“American Crime Story: The People v. O. J. Simpson,” “When They See Us”), grifter tales (“The Dropout,” “Inventing Anna,” “WeCrashed”), dramatizations of hit documentaries (“Joe vs. Carole,” “The Staircase”), redemption narratives for publicly maligned women (“Impeachment: American Crime Story,” “Pam & Tommy”). Drawing from the recent past is also a staple of movies (“King Richard,” “I, Tonya,” “Spotlight”), and television networks churned out movie-of-the-week schlock throughout the eighties and nineties. But the need for content in the age of peak streaming has created a boom for up-to-the-minute docudramas, starring famous people as other famous people. Is Jerry West about to tear it all down? “I’d be worried, honestly, if there were a series of wins,” Jean-Paul Jassy, a litigator who has worked on many cases involving the First Amendment and entertainment, told me. “Because what happens is, it inhibits the robust telling of stories and the way in which people can express and recount events.” But, if West decides to sue, he’d have an uphill battle. Defamation law provides lots of leeway for screenwriters to take dramatic liberties, as Hollywood has proudly done for the past century. In many states, so-called anti-slapp (strategic lawsuits against public participation) laws help block lawsuits that are designed to intimidate activists, news organizations, and filmmakers from exercising their First Amendment rights—say, a suit filed by a politician who doesn’t want to be investigated for corruption. As Bruce Rosen, another First Amendment lawyer, explained, defamation plaintiffs who are public figures have to prove not only falsehood but “actual malice,” which is “a subjective state of mind of the writer, the broadcaster, whoever, that tells you that they knew or should have known that what they were publishing was false.”

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