The University of Texas at Austin

Law in Popular Culture collection

Legal Studies Forum
Volume 15, Number 3 (1991)
reprinted by permission Legal Studies Forum

Fact and Fiction in Film

MARLENE BOOTH
with an introduction by Aviam Soifer

Introduction

     The great historian Carl Becker was one of many historians quite
skeptical about the hard reality of historical facts. Becker stated,
"It is the persisting historical fact, rather than the ephemeral actual event, which
makes a difference to us now; and the historical fact makes a difference only
because it is, and so far as it is, in human minds."1 But Becker said this in the
1920s, before the immeasurable influence of film and television images became
obvious and before the ability of film to capture history seemed to dissolve the
distinction Becker drew.
     Today, the relative credibility of film images pervades our cultural
milieus. Advertisers literally bank on the power of film images. Referees are
overruled by the instant replay of television pictures in crucial football games.
Even if belatedly, in legal circles today videotaped depositions and video por-
traits of the lives of accident victims often constitute the most powerful evi-
dence a jury or judge may consider. Yet both popular culture and legal culture
remain remarkably naive about fact and fiction on film.
     In particular, historic film images are seldom scrutinized with any real
care. Becker emphasized that we cannot turn around somehow to walk back
into the uneven country of history we have just traversed in order to find "hard
facts" or "cold facts" or anything substantial to pile up or bump into that is
akin to physical material. If Becker is even partially correct in arguing that
history is what is in our minds today, we probably should pay attention to
how our historical images got there. Images from both documentaries and
fictional films surely play a dominant role in our reconstructions of the past.
Yet for most of us, it remains vitally important to cling to a distinction be-
tween the reality of a documentary film and the fictional feature that we under-
stand at least on some level sets out to manipulate our emotions.
     Some of our most powerful contemporary literary works blend fact and
fiction quite self-consciously. As novelist Tim O'Brien put it in his latest
treatment of the Vietnam war, "Stories are for joining the past to the future.
Stories are for those late hours in the night when you can't remember how you
got from where you were to where you are. Stories are for eternity, when
memory is erased, when there is nothing to remember except the story."2
Recent presidential campaigns underscore the potency of visual images. (And,
to many, both the general voter apathy and the election results suggest that the

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American electorate will not be troubled with facts when bombarded with red,
white and blue pictures and carefully programmed newsbites promising Ronald
Reagan's "Morning in America" and the like). Nevertheless, popular perception
of the films we pay to watch, and the documentaries we generally do not watch
but sometimes say we did, still seems committed to a dichotomous view,
distinguishing fiction from fact, feature from documentary film. The United
States Supreme Court may have recently rejected "the creation of an artificial
dichotomy between 'opinion' and fact,"3 yet fact and other-than-fact still seem
generally to be entirely separate spheres.
     On closer examination, it is surprisingly hard to distinguish truth from
fiction in the world of both fiction and documentary films. Documentaries
about real life occurrences sometimes contain re-enacted material. Often, as in
the case of Ken Burns' The Civil War, when the real participants are not
available to tell their own stories, quotes from the period are read and music
is used to create and influence the viewer's reactions. Academic "experts"
contribute their interpretations, thus adding another layer of blur between what
is fact and what is not.
     In feature films, even in films that seemingly make no pretense to cover
real events (though many fictional films are based on real life stories), the line
between fact and fiction is also frequently ambiguous. Facts are used to add
immediacy and significance to a story. (Ironically, a fiction film based on a true
life situation has additional marketing possibilities as does a documentary with
historical re-enactment, each striving for what trade journals call "crossover"
audiences.) When the concerns of storytelling and marketing get cross-con-
nected, the results defy easy classification.
     By considering the examples of two films - one, a documentary, Roger
and Me and the other, a feature film, Matewan - we look at the intent of the
filmmakers in blurring the line between fact and fiction. We also consider
what this suggests about popular understanding of the terms "fact" and "fic-
tion, an understanding partly formed from art.

A Documentary Filmmaker's View
Roger and Me: Documentary As Comedy?

     When I went to our local video store to rent Michael Moore's docu-
mentary, Roger and Me, I had only ten minutes to spare. Figuring the film
would be catalogued under Documentary, I looked for it in that strikingly small
section. No Roger and Me. Maybe, I thought, since the film played theatrical-
ly, it was now labeled as "Feature." No such luck. All right, I thought, cult
classic. As one of the movies most written about in 1989-1990, Roger and Me
probably had earned a place in that category. But no, cult films were some-

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thing else altogether. Deciding to give up and to devote an evening finally to
watching the rest of The Civil War, I began to leave the store. Just inside the
door, I saw "Comedy." "Comedy?" Why not? There, lo and behold, was
Roger and Me.
     "Comedy"? For a documentary? As a documentary filmmaker and
producer of both independent and PBS films, I was taken aback. True, none
of my films (to date) is especially funny, but doesn't listing a documentary as
comedy undermine some of its claim to truth? I'd grown up believing -
indeed, I even continued to believe as a grown-up - that what went into
documentaries was supposed to be true to life. While true to life often means
funny, doesn't the label "comedy" somehow challenge the truthful part of the
documentary? Did moving a film document of real life into the comedy
category challenge its apparent truthfulness? Were fact and fiction merging
here?
     For those who missed last year's hotly debated "comedy," let me
summarize. Michael Moore - journalist, documentarian or comedian, depen-
ding on your point of view - is the son of a former General Motors employee
who decides to take on GM in the wake of plant closings and rising unemploy-
ment. While he tries to meet face-to-face with Roger Smith, chairman of GM's
board, to advocate on behalf of unemployed workers, Moore takes us on a
merry ride through his hometown, Flint, Michigan. Here we meet many of the
unemployed and see scenes of enormous disparity between Flint's rich and poor
as well as between Flint's poor and almost-poor. Meanwhile, we are treated to
bizarre, ironic looks at what makes Flint (read: America) tick: the annual
parades, the celebrities who march through Flint promoting its values and
goodness (despite the fact that its economy obviously seems to be falling apart),
President Reagan taking unemployed workers out for pizza and urging them
to relocate to the Sun Belt, and even Flint's homegrown talent, the host of the
Newlyweds Game. (When he's not strutting his Hollywood stuff for the
hometown folks, Ben Barker "privately" treats us to an array of sexist and anti-
Semitic jokes). In the end, Moore manages to meet Roger Smith at a company
Christmas bash. Smith, on his way out of the ballroom where he has just given
an inspirational message to GM's remaining employees, is in no mood to banter
with critics. Giving little more than a canned answer to Moore's questions,
Smith brushes him aside and continues on his way. No bleeding heart will stop
him.
     The question is, in the midst of what could reasonably be described as
"documentary," what is it about Moore's film that makes it a "comedy?" Not
unlike other documentary filmmakers, Moore organizes his material in a way
that heightens the irony of the scenes we see. For instance, Moore probably
didn't film wealthy women playing golf at their country club and then im-

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mediately thereafter film evicted tenants carrying their belongings curbside,
though he places the scenes side-by-side and even intercuts between them.
Apparently, the costly and ultimately disastrous efforts to attract tourists to
Flint, meant to buoy Flint's ailing economy, took place before the plant clos-
ings, though the film makes them seem wrong-headed attempts to limit the
impact of the closings.
     All documentarians try to put films together in a way that helps tell a
story. If material filmed at a later time more appropriately sets up the story
earlier, they are likely to use that material early in the film. Both scenes took
place; only their relation in time is manipulated. So, though the irony in Roger
and Me is heavy-handed and surely influenced by Moore's direction, it is neither
irony nor playing with time that classes his film as comedy.
     What then about the role of Moore himself? Moore's voice as a film-
maker, the narrator-cum-star, the crusading (albeit hilarious) journalist who
takes on the case of the little guy in fighting the big guy, is that of the Amer-
ican anti-hero who here sounds like Garrison Keillor and works in the tradition
of Mark Twain. Moore is deadpan and opinionated, but also even-tempered
(this is no anxiety-ridden Woody Allen urbanite). What we see is a moderate
midwesterner (a type I recognize from my childhood in Iowa). Moore strings
simple sentences together and offers us his offbeat look at people and places.
He is not always kind. Though it initially seems sympathetic, Moore's hand-
ling of a woman who gets by selling rabbits "for pets or meat" becomes tasteless
and voyeuristic. His framing of the predicament of a "colors" lady is hardly
more understanding. Unlike many documentary filmmakers these days who
let people in their films speak for themselves, Moore shows us the world
according to his lights. He tells us how we ought to see people. As we watch,
reflecting on some of the discomfort we feel under his unsubtle spell, we realize
how manipulated we have been.
     It is this issue of point-of-view that frames the language and the ap-
proach of filmmakers, whether feature or documentary directors. In selecting
shots, directors constantly keep in mind from whose point-of-view the story is
being told (or whose angle of vision, another, more cinematic term for the same
thing). If we see something from a character's point-of-view, we look out to
see what she sees. If we see something from an omniscient point-of-view, we
look at the character herself. (Omniscient quite often means the director's or
the off-camera narrator's point of view). In Moore's film, we see people and
events as Moore sees them. There's nothing wrong with this approach. In
Moore's hands  point-of-view also implies judgment and advocacy. While
the advocacy position is scarcely new to filmmaking, Moore's universe is
criticized as he describes it. Herein lies the crux for both Moore's critics and
those who would deem him comedic.

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     Michael Moore is funny, particularly when the object of his laughter is
something we find foolish too. Take civic improvements. Take the parades.
Take Pat Boone and Ronald Reagan (to paraphrase, Henny Youngman,
"Please!"). We laugh at these things and people all the time. When Moore calls
our attention to this fact, we recognize his laughter as ours. But when he
underscores the irony of the "Rabbit Lady's" plans to become an assistant
veterinarian or when he describes the "Color Lady's" description of a disaster
- that her own colors had been done wrong all along - we feel used. Part of
our discomfort arises from issues of both class and sensitivity. The Rabbit Lady
and the Color Lady are doing the best they can. Their "false consciousness"
should not be something to rub their noses in. On the other hand, Pat Boone,
Ronald Reagan and the civic improvements, which seem to represent false
consciousness writ large, are really part of the problem. And (if I understand
New York Times v. Sullivan correctly) as public figures and as issues of public
concern, they are fair game for criticism, even ridicule. Moore betrays no trust
between himself and these figures by the way he handles them in the film.
With the Rabbit and Color Ladies, quite the opposite is true.
     On the other hand, many of the things Moore pokes fun at are Amer-
ican icons worth ridiculing. Moore has a wonderful eye and ear for the sym-
bols that are died-in-the-wool American - parades, movie stars, Miss Michigan.
He is also a master at hearing American cliches and idioms. The very poignant
scenes with the Eviction Man - "it's a lousy job, but somebody's got to do it"
- and the uproarious encounters with Flint's GM lobbyist (who spouts cor-
porate pablum, including shock and disbelief that GM's responsibility would
be to its workers and not to making a profit) are telling examples. Moore has
a good eye for finding enemies. His enemies seem to be ours, too, and he
becomes our advocate when he goes after them.
     Yet we wonder: just who is Michael Moore to take the stand he does?
One of the things Moore does brilliantly is to establish with admirable brevity
his legitimacy to be the spokesperson for unemployed auto workers. As the
son of someone who worked for 35 years for GM and as someone who not
only knows of, but is still bitter about, the context of the famous Flint sidlown
strike of 1937, Moore can claim to be entitled to take his anger out on GM on
behalf of the workers. His brash, confrontational tactics in trying to stake out
Roger Smith are a small measure of what GM has done to the workers them-
selves.
     Moore's documentary style and the assumptions he makes about point-
-of-view put him squarely in the "new journalism" school of documentary
filmmaking. What distinguishes Moore from other practitioners of this sub-
genre is his distance. Moore places himself in his film as commentator and not
as a character. Though we hear details from Michael Moore's life, he is never

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presented on camera as vulnerable. Even when he is about to be thrown out
of Roger Smith's eating club or is not allowed entrance to a shutdown plant
on its final day of operation, Moore is clearly in control. It is his own editorial
distance, rather than any fluke of filming or editing, that seems almost to
"violate" an unwritten filmmaker's canon. Imagining oneself to be a subject of
one's own film, and thereby sympathizing, is not Moore's strength. Documen-
tarian as trasher seems closer to the truth.

Matewan: Empathy in Epic Fiction

     Fiction film at its best often shows enormous respect for its characters.
Putting oneself in the position of each character can be the strength of a feature
director, creating a film that "reads" as truth. John Sayles' feature, Matewan
(1987) is as much social criticism as Roger and Me. On one level, Matewan is
the simple story of a union strike, but Sayles winds up revealing much of what
is ugly in the underside of the American character. In his tale of good guys and
bad guys, Sayles' action distills to the level of classic American myth without
the traditional happy ending. The union organizer rides into town and be-
comes father figure to an idealistic boy. He preaches non-violence and gets
gunned down. The bad guys, the mine owners, care only for profits, and they
win. The people in the mining town of Matewan - poor whites, the blacks
brought in as strike breakers, the immigrant Italian workers - forge unity
through strength and are left worse than they were, their numbers depleted
through violence.
     Matewan is a powerful story with a tight script and a precise directorial
hand. From the opening shot, Sayles draws remarkable narrative power from
the visuals, aided by the eloquent cinematography of Haskell Wexler. In this
work, Sayles has found the perfect story for displaying his skills as director and
writer. Each of his characters is cast as though in a morality play. Among
them: the attractive young widow and temptress who sits at the train station
welcoming newcomers to town; the sheriff/town protector who comes back
from World War I with a knowledge of killing and a will to use that know-
ledge; the Christ-like union organizer who comes to town to fight the inhu-
mane powers-that-be with a union, rather than with violence; and the miners,
one black and one Italian, who lead the violent revolt.
     In Sayles' movie, Joe Kenehan, the outsider, comes to town to organize
a miners' union. A pacifist and a Wobbly, Joe believes unions and not violence
are the way to go. In a town where violent feuding is a way of life - Matewan
is near the scene of the Hatfield and McCoy feuds; one of the characters in
both the historical story of Matewan and in Sayles' film is Sid Hatfield -

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Kenehan's mission is tough. Though he is able to convince the miners for a
while that "a new day is dawning," violence triumphs in the end.
     Sayles takes the outlines of his story from a real, bloody miners' strike
in 1920 in Matewan, West Virginia. Some of the characters in his movie are
drawn, partly, from those historical events: Sid Hatfield, the sheriff; Cabell
Testerman, the mayor; a black miner called Few Clothes, who was rumored to
have been a veteran of the Spanish-American War (played in the film by James
Earl Jones); and a company spy named C. E. Lively. In his book, Thinking in
Pictures: The Making of the Movie Matewan (1987), Sayles makes clear 
what drew him to this story:
All the elements and principles involved seemed basic to the idea of
what America has become and what it should be. Individualism versus
collectivism, the personal and political legacy of racism, the immigrant
dream and the reality that greeted it, monopoly capitalism at its most
extreme versus American populism at its most violent, plus a lawman
with two guns strapped on walking to the center of town to face a
bunch of armed enforcers - what more could you ask for in a story?4


Breaking Boundaries and the Rules of the Game

     Sayles' story - a fictionalized account of an actual union strike and the
killings that ended it - is deadly serious. You leave the theater reflecting upon
the injustices and the possibilities of the American system. It makes you feel,
however briefly, moved to redress the imbalance of race and class in a capitalist
system.
     By contrast, Michael Moore's documentary leaves viewers laughing and
shaking their heads over the ironies of class disparity in America. Moore has
legitimate direct connections to the story he tells and the people in it, perhaps
a factor in his ability to capture and to manipulate their stories. Sayles, who
grew up as the son of educators in the northeast and graduated from Williams
College, comes to his West Virginia story as an outsider outraged by what he
discovers. He uses film and the power of his storytelling to awaken interest in
class issues, violence and capitalism. Moore, who grew up under the shadow
of GM, takes the abuses of disparity as a given. Having become accustomed to
the America he is a part of, he brings to his story a comedian's irony and
understatement. Though he draws us into his point-of-view with newsreels,
personalities, and institutions familiar to most viewers, he neither takes up arms
nor challenges us to do so. Sayles mission and method are vastly different. So
is his storytelling and so is the powerful reaction his film generates.
     These two films focus troublesome issues about truth. Sayles admits
that not enough details were known about the story of the real strike and its

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participants to flesh out a screenplay. He fuses real and fictionalized characters
in the interest of creating a dramatic film:
Since the historical figures I was dealing with were not widely known,
I felt a responsibility to stick pretty close to the verifiable accounts of
their actions and shied away from their personal lives. The burden of
personalizing the story then fell on the fictional characters.5
     In Roger and Me, Moore's characters similarly are little known. We
come to know Roger Smith only through his position at GM and the places he
frequents - the health club, the eating club, the GM office building where no
one is allowed onto the 14th floor without written permission - all suggesting
a man shielded by the trappings of power. We never see or hear Roger except
in his corporate mould. Moore uses this ploy so that Smith himself is as much
player, unwittingly, as filmmaker Moore. The others we meet - the Eviction
Man, the post office employees, the Color and Rabbit Ladies - are all seen at
work. The only people we see not defined by work are the women playing
golf and the tenants being evicted. In the first case, these women choose to be
at leisure, in the other, people are being forcibly moved. Setting is so vital to
Moore's world that the only person we get to know with any dimensionality
is Moore himself. We identify with him because he gives us a chance to. The
other people are little more than mock-ups, characterizing the world as Moore
sees it. Moore's world is a chess game in which he is the only player. On the
other hand, as the autoworkers' advocate, he is doing to the world what our
world does to them. He is the role model, gaining power through film.
     Moore invites us to see the world as he sees it and he blatantly manipu-
lates us - by what he chooses to film and the way he edits. Sayles does the
same, carefully crafting his story so that we are drawn along as he wants us to
be. We are consciously manipulated to an equal extent by both filmmakers, yet
in the case of one (Moore), we feel and witness the manipulation. In the case
of the other (Sayles), we are little aware of just how much we are being drawn
in. Because Sayles' method is subtle, we don't notice his intrusion into how we
view people and events in his work. Because Moore is so "out front," we feel
strongly and react to his manipulation (either for or against it).
     This, then, is our somewhat paradoxical reaction to witnessing the
unfolding of a true versus fictionalized drama. We willingly suspend disbelief
to enter into the world of Matewan and to sympathize with its characters, most
of whom are fictional. We join the film's director in so doing. Moore en-
courages us to enter into a world which he and we know and can see is real.
It is because it is real that we bring to it our own "real" reactions. Sometimes
we agree with Moore's point of view; other times, we almost certainly do not.
We don't leave judgment at the theater door. If we take issue with Moore, and
not with Sayles, it is because our standards of judgment for a documentary are

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different from what they are for a fictionalized film precisely because the
documentary purports to be a real and not a fictionalized document. Further,
none of Moore's characters reaches the level of arch villain that Sayles' do.
Roger Smith may be a bad guy, and Moore gives us ample evidence in his
commentary to support that claim. But as we see Roger Smith, he hardly
seems villainous. Moore faces a great dilemma in trying to portray bureaucratic
wrongdoing. Everyone at GM may have good corporate reasons for decisions
made and actions taken, but the conglomerated result may be awful. It is a
tremendous challenge for a filmmaker to try to capture bad things done by an
artificial body such as a corporation or a government. If there is no smoking
gun, there may be no film image at all.
     We have to accept on faith Moore's claim that Smith is a villain. He
does not let us experience in a film sense the building of a story that lets us feel
Smith's villainy. Not so with Matewan. In scene after scene, we see the nas-
tiness of the Baldwin agents. Indeed, they are at times almost stock villains.
When the miners go after them with guns, we share some primal need for
vengeance.
     Here, then, are some complicated limits to the portrayal of truth on
film. We like our villains to behave appropriately. (Why else do we hate
Richard Nixon so much more than Ronald Reagan when Reagan's policies
toward the poor were more devastating?) Adolf Hitler, Saddam Hussein, and
many lesser known villains project nasty exteriors. They say things that make
us feel a measure of what their victims feel. With Roger Smith, we are given
no such encounter. We see him only in sheltered settings where his studied
corporate image is on display. Though we see in Moore's film the devastating
effects of Smith's actions for GM, we never get a chance ourselves to experience
any of his venality. In Sayles' film, however, it is as though the evil acts are
perpetrated directly against us.
     Film is a visceral medium. It is not just that we see images and hear
sound. We also experience the world of the film as though we were there.
That is why a documentary such as Moore's, which leads us by the nose every
bit as much as a feature film, builds limitations into its structure. By making
himself the homey, Prairie Home Companion narrator, Moore invites us along
with him. Within the world he "creates," we too have a role different from
our role in Matewan. In Roger and Me, we feel free to comment to ourselves
and to offer our own interpretations of what we see. We share Moore's per-
spective on some things and not on others. But it is Moore himself who builds
into the structure of his film the role of viewer as instant critic. As in life
observed not on the screen, we operate with independent views. For some,
Moore's film is a leap into Moore's world and not a work of "art." To others,
the opposite is true because Moore manages to fuse art with the real.

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     Whatever a person's final opinion of these two very different films, at
least one important point emerges. We seem to prefer to have film draw us
away from our lives. We like to enter a fictionalized world where we can
suspend judgment. In living the lives of reasonably thoughtful persons, we
often cannot take absolutist positions. But we may want to do so once in a
while. Films such as Matewan, films that use artistic skill but still paint good
and bad in stark terms, give us an outlet for easy judgments we don't get to
make most of the time. Roger and Me, on the other hand, is more troublesome
precisely because it is closer to the real perplexity of life. We recognize par-
ticular types in it, and we react somewhat as if we were up there on the screen,
too. Our discomfort with uncertainty works in tension with our more direct
identification, even as the filmmaker manipulates us.
     If someone forces us to judge - as we have to do constantly in real life
- and if we've paid $6.50 for the privilege, we tend to object. Even the ad-
mirably complex example of fictionalized truth in Matewan, still limits our
responsibility to make judgments. Roger and Me manipulates those limits, too.
Yet in a documentary film, we can not lose a nagging undercurrent that re-
minds us of the boundaries of what is real.
     As a documentary filmmaker, I am pleased to be a part of a tradition
that shakes normal boundary-making. Within my trade there are unwritten
rules most of us feel obliged to follow (e., let the characters speak for them-
selves; do your best not to put words in their mouths in the editing process).
Moore's editorial voice pushes some rules to the extreme. His stance is not one
I could comfortably adopt. Ironically, however, breaking the rules is another
rule of the game in the world of documentary film. The essence is to know
and follow the customary rules well, but also to realize if, when, and how it is
appropriate to break them.

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ENDNOTES

1. "What are Historical Facts," reprinted in P. L. Snyder, ed., 
Detachment and the Writing of History: Essays and Letters of Carl L. Becker 
41, 50 (1958). On the objectivity question in history in general, see P. Novick, 
That Noble Dream: The 'Objectivity Question' and the American Historical 
Profession (1988).

2. T. O'Brien, The Things They Carried 40 (pap.ed. 1991).

3. Milkovich v. Lorain Journal Co., 110 S. Ct. 2695, 2706 (1990) (expression 
of opinion in newspaper column may be libelous). Cf. Masson v. The New York 
Magazine, 686 F Supp. 1396(N. D. Cal. 1987), aff'd., 895 F.2d 1535 (9th Cir. 
1989, cert. granted, 111 S.Ct. 39 (1990) (no defamation for altered quotations 
of public figures if rational interpretations of ambiguous remarks do not later 
the substantive content of unambiguous remarks).

4. John Sayles, Thinking in Pictures: The Making of the Movie Matewan 10 
(1987)

5. Id. at 20.