Why There Probably Won’t Be a Documentary About the Parkland Shooter
When Anthony Borges was just 15 years old, he was shot five times while attempting to barricade a door to a classroom full of students at Marjory Stoneman Douglas High School in Parkland, Florida. Since that horrific mass shooting, which killed 17 of his classmates and teachers, he’s embarked on a long and harrowing physical and emotional recovery. Among the many things he’s lost to the shooting, ever-present media attention has haunted him. In 2022, a massive civil settlement awarded Parkland shooting victims and their families $127.5 million by the FBI. It could not rectify the loss, but it did offer a pathway to reparative justice outside of a traditional court setting.
Borges in particular has sought—and received—a totally unique settlement in addition to that from the FBI. What many of the victims want, and aren’t getting, is a reprieve from the onslaught of coverage of their perpetrator. And in late June, as part of an extraordinary civil settlement, Borges’ lawyer secured for Borges the rights to the Parkland shooter’s name.
What does it mean to own a name in this way? The most practical result is that the shooter himself cannot participate in any sort of documentary, interview, or other piece of media without Borges’ express consent, and any attempt at doing so could be struck down in court. (According to the Sun Sentinel, Borges doesn’t plan on granting him permission any time soon.)
But the case has been the source of great intrigue, particularly among lawyers and legal scholars, due to the unique nature of the deal. It balances two legal provisions, the first of which is the assignability of one’s name, image, and likeness, which varies by state. In Florida, where the case was won, the right of publicity is technically unassignable. But there are strong reasons to make exceptions to this rule when considering the shooter’s right to his own name and image under Florida penal law—because penal law has provisions preventing mass murderers from profiting off of crimes.
But the other legal provision invoked here is the First Amendment, which protects speech considered “news-worthy”—and this, of course, has been newsworthy. That means a documentarian can still make a film about the shooter, irrespective of his participation. However, any authorized mention of the shooter specifically must go through Borges and his family.*
This settlement is the first of its kind that flips the general profiteering nature of name, image, and likeness suits on its head. Name, image, and likeness, or NIL, laws usually pertain to the rights of individuals, particularly student-athletes, to profit from their personal brand. These laws have gained significant attention in the context of college athletics in the United States, as they protect the students from losing those rights to the universities for which they play.
Though the portion of the settlement concerning the shooter’s name falls under the NIL provisions, Borges and his lawyer, Alex Arreaza, arrived at the idea of this settlement without NIL in mind. Though seemingly novel in its specific verbiage, the civil settlement takes most of its inspiration from another filed years after another high-profile case: Rights to O.J. Simpson’s book If I Did It, a theoretical account of how he would have carried out the murders of Ron Goldman and Nicole Brown Simpson in 1994, were handed over to the relatives of Goldman in 2007. Arreaz told me this was one of the main inspirations of the civil settlement that arose “out of an extensive brainstorm” with Borges and his father. While Borges is invested in limiting press on Parkland, the Goldmans did the opposite. Lawyers for the Goldmans arranged for new publishers to capitalize on the publishing of the book.
The Parkland shooter also agreed to have his body and brain donated to a scientific institution of Borges’ choosing as part of the settlement, so that “they might be able to figure out what created this monster,” Arreaz explains. A study from the University of Wisconsin’s School of Medicine and Public Health has shown differences between the brain structure and function of psychopaths (and those exhibiting “impulsive antisocial behavior”) and neurotypical folks. Whether this is purely a symbolic gesture or one bound to yield some ground-breaking scientific inquiry into the brain of the killer remains to be seen, but Arreaz explained it as something that has the potential for restorative justice.
Serial killers are often glorified unjustifiably, marginalizing their victims and those victims’ families through the retraumatizing practice of exposure. Imagine, if you will, Jeffrey Dahmer’s victims and their families opening whatever streaming service houses hundreds of hours of content related to the brutal slaying of their loved ones. Giving survivors this (sort of) novel legal recourse could rewrite the often one-sided history of serial killers and mass murderers, effectively removing their name and perhaps placing more of the focus on the narratives of survivors in turn.
The outcome of the case has had a fairly significant impact on Arreaz’s practice. “I’ve already had other families of victims reach out to me for [crimes] that happened five/six years ago,” Arreaz explains. For many of these cases, the statute of limitations of the crimes committed precludes Arreaz from pursuing the same kind of settlement he did for Borges. Despite this, he’s hopeful both he and other lawyers will file similar suits in the future. “There’s no money in it,” he said. But this settlement case is unique and nearly without precedent. It speaks to the power of civil cases to retrospectively restore either symbolic and/or financial power to the victims of heinous crimes.
As for the legal implications of the case, the wider impact remains to be seen. While Arreaz is ready to challenge any company or outlet looking to use the shooter’s name on any sort of published project, there is likely to not be any disputes over the civil settlement. Rebecca Tushnet, a professor of the First Amendment at Harvard Law School, noted that though the verbiage of the filing is broad, the fact of the matter is that any challenge or attempt to profit off of that name is unlikely given the deal was emphatically agreed to by the shooter’s defense.
This is a wider victory, not just for Borges and his father, but for a community of survivors who have been looking to reclaim the narrative surrounding what is, for many of them, a life-defining trauma.