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BOSTON � A recent 1st U.S. Circuit Court of Appeals decision ruled that documentary filmmaker Michael Moore did not defame a former U.S. Army Reserve sergeant under Massachusetts state law when he used a film clip of the sergeant without his consent in a movie critical of the war in Iraq. Moore used the clip of an interview former Sergeant Peter J. Damon gave to NBC Nightly News in his film Fahrenheit 9/11. The clip portrays Damon discussing his war injuries and treatment. “Looking at the documentary from this micro-level, there is no way for a reasonable viewer to construe Damon as supporting Moore’s ‘agenda,’ ” wrote District Judge Aida Delgado-Colon, a judge in the District of Puerto Rico sitting by designation on the three-judge 1st Circuit panel that heard the case. “Neither may it be reasonably construed as a statement promoting disloyalty or denouncing either the Commander-in-Chief or the medical treatment received by veterans,” wrote Delgado-Colon. In her March 21 decision, Delgado-Colon also noted that the court appreciates Damon’s “anger and frustration over appearing without his consent in a documentary that stands in direct contrast to his own personal and political beliefs,” but wrote that the clip was “not reasonably susceptible of a defamatory meaning.” Damon v. Moore, No. 07-1365 (1st Cir.). Appeal a possibility Since the decision said the court recognizes “the potential First Amendment implications of this case,” but did not address them because the state law claim failed, the plaintiff’s team is considering filing a writ of petition for certiorari to the U.S. Supreme Court, said Philip D. Moran, a solo practitioner in Salem, Mass. Moran is Damon’s local counsel on the case. “No decision has been made. We will discuss it with our client,” Moran said. Damon’s claims included violations of common law appropriation of name, portrait and picture; statutory right to privacy; defamation; intentional infliction of emotional distress; and loss of consortium. Damon originally filed the complaint in Massachusetts state court. However, the defendants removed it to the U.S. District Court for the District of Massachusetts, which dismissed all of Damon’s claims. Damon v. Moore, No. 1:06-cv-11532 (D. Mass.).

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