## Facts

- Ray E. Davis, former Commander of the U.S. Military Group and Chief of the U.S. Mission to Chile during the 1973 Chilean coup, sued filmmakers and distributors for libel arising from the feature film *Missing*.
- *Missing* dramatized the disappearance and death of U.S. citizen Charles Horman after the coup and drew heavily from a nonfiction book about the events.
- The film included a U.S. military officer character, “Ray Tower,” whom Davis alleged audiences would understand as a stand-in for Davis.
- Davis’s remaining defamation theory was that the film portrayed, with actual malice, that Davis ordered or approved a Chilean order to kill Horman and participated in or condoned a cover-up.
- The film did not use Davis’s name or physical likeness and presented the officer as a symbolic, composite character; it also contained disclaimers indicating fictionalization of some characters and incidents.
- Defendants moved for summary judgment under Rule 56; after reviewing affidavits and depositions, the court held an evidentiary hearing under Rule 43(e) to determine what evidence Davis could present at trial on actual malice.

## Issues

1. Whether a public-figure plaintiff may sustain a defamation claim based on a fictionalized film portrayal using a composite character allegedly referring to the plaintiff.
2. Whether the record, including the Rule 43(e) hearing, contained clear and convincing evidence that defendants acted with actual malice (knowledge of falsity or reckless disregard for truth).

## Decision

- The court granted summary judgment for all defendants and dismissed the complaint.
- Applying the public-figure actual malice requirement and the clear-and-convincing evidentiary standard at the summary judgment stage, the court held no rational jury could find actual malice on this record.
- The court found the evidence “devoid” of any showing that defendants subjectively entertained serious doubts about the truth of the film’s alleged defamatory implication.

## Legal Principles

- A public-figure plaintiff must prove “actual malice”—knowledge of falsity or reckless disregard for truth—to recover for defamation.
- At summary judgment in a public-figure defamation case, the court evaluates whether the evidence is sufficient for a reasonable jury to find actual malice by clear and convincing evidence.
- Disagreement over contested historical or political interpretations, without proof of knowing or reckless falsity, does not satisfy actual malice.
- Use of dramatization techniques such as composite characters and fictionalization disclaimers may weaken an inference that defendants intended a literal factual assertion about a specific individual, absent evidence of subjective doubt about truth.

## Conclusion

Because Davis, as a public figure, failed to produce clear and convincing evidence that the filmmakers and distributors acted with actual malice in portraying the composite officer character and the film’s implications about Horman’s death, the court entered summary judgment for defendants and dismissed the libel action.


Davis v. Costa-Gavras, 654 F. Supp. 653 (S.D.N.Y. 1987)