I'm disappointed that there's still a false perception as to why Waco isn't shooting in Texas. Frankly, I think it's hilarious that anyone thought a movie about the Branch Davidian thing was going to shoot in Texas in the first place.
The lazy reporting transcribed direct from the mouth of the producer of Waco is still being perpetuated a year after it was initially being sold to investors at Cannes. The Waco producers invented a controversy out of thin air and got away with libeling the Texas Film Commission by way of the press. Reporters just took the producers' version of reality and ran with it.
I should mention here that I don't have a single direct connection to anyone at the TX Film Commission. I haven't spoken to anyone on either side of things, but I've figured some things out from sifting through the ever-changing story fed by producers to the press thus far. First off, there are some very basic facts out there that you don't need anyone's "take" to know.
The big hole in the Waco guys' story is that they never applied for the incentive, hence they were never actually turned down for it. Their version of the story has changed in this respect over time. They have gone skirting around this by putting words in the Film Commissioner's mouth that indicated he gave them an Old West-style "don't even bother", by telling them that applying would be a waste of time. It would be, but not for reasons regarding censorship. Contrary to the impression forwarded by Fox News, facts aren't subject to interpretation.
What the Film Commission did do was give Waco the courtesy of apprising them of potential issues they would run into if they did apply for an incentive. The producers said "hey, we want to make a movie", and the Film Commission said, "we'd be happy to look at your script and give you pointers". What's often overlooked is that producers on independently financed projects don't generally know or care what legal issues are in their way when making a movie, especially one based on actual events. To them, wholly inventing and mis-attributing true events can be brushed off as a matter of "poetic license".
The biggest problem for Waco was that the script handed to the Film Commission portrays actual Texas events and actual living Texans inaccurately, erroneously, and/or disparagingly in places, which is a bigger legal clearance issue than it is grounds for denying an incentive. If you never go into production, you can't really get a tax rebate, can you?
The most prominent example of this in the script is a composite law enforcement character (I'm assuming the one Kurt Russell is now set to play), who they named after a real guy, Byron Sage. They attributed actions and statements to him that just didn't happen in this version of reality, while at once presenting these things as fact. This right here is an invitation to get sued, and they shouldn't have let this stuff make it into a script they were presenting as the true story movie to be made.
The producers have dismissed the accuracy issues as a mere matter of opinion or having to do with only minor details, but this isn't the case, based on snippets of info that have filtered out in their own releases. Regardless, they've forwarded the perception that the lone remaining point of contention is over who set the compound on fire: Koresh or the feds.
The only reason that the Austin-American Statesman ran their regurgitated editorial and followup coverage on this "story" was that they saw it as a chance to take a shot at Governor Rick Perry and his administration. I hate Perry, but there are a lot more relevant and credible issues upon which to roast him.
This is all especially ridiculous since the Waco project never seriously looked at shooting in Mount Carmel itself, where they would've been run out of town. Under the same reasoning, I'm convinced they didn't want to shoot in Texas in the first place. All they wanted from Texas was fake controversy to manufacture headlines and buzz so that they could sell their movie to investors.
Boy howdy did they get all the coverage they could want this past week, especially thanks to the conspiracy theory movement, which got them on The Drudge Report. Austin-based "Infowars" founder Alex Jones recently mashed his campaign against Machete into the Waco thing. Jones is on about how Machete represents a call for the long-teased "inevitable race war" in the United States, and ignores the fact that the movie is a blatantly low-rent exploitation homage. If he wants to lose his mind about exploitation movies inciting race violence, he should pick up a copy of Black Gestapo, the effects of which the country has yet to recover.
Where Waco comes into play is that Machete is in line to receive the state tax incentive. Jones is going along with the crowd (again, informed by producers and assumptions) that the TFC is selectively censoring productions into setting up shop outside the state. Jones adds his own layer by comparing 'racist, violence-spurring' Machete to poor little Waco, whose story is ostensibly about governmental misconduct leading to tragedy.
The problem in Jones making this comparison is that the actual Waco event gave birth to a bunch of militia factions and Tea Party-esque groups. That means one could reasonably compare Waco the movie to Birth of a Nation, which bred a populist resurgence of the Ku Klux Klan.
Even though many (some say the majority of) militia groups are big into white supremacy, I'm not comparing these folks directly to the Klan. The tie I'm pointing to is instead a sudden explosion in membership due to alleged events. D.W. Griffith's movie tells a legend behind the formation of the Klan that was completely invented. It ignited a new white supremacy movement out of latent hatred and bigotry.
If we're comparing potential surges in dangerous behavior, wouldn't Texas supporting a big-budget "true story" movie that inspires violent anti-government action worse than the very fictional Machete? The idea of Waco is that it's the telling what "really happened" in the world we live in, just like Birth of a Nation.
Machete is so over-the-top that they cast Robert DeNiro as a Texan Senator for crying out loud, and nothing in that trailer indicates a true call to real-life race violence. There is a great deal of metaphorical violence on display, but to allege that hordes of bloodthirsty Mexicans and Latinos are going to take up arms and commit an American Reconquista is the fantasy of a fear-mongering zealot. This is the kind of quality reporting that Matt Drudge chooses for his illustrious fear-mongering site. Most media outlets are in lock-step with Jones thanks to similarly copy/pasting the Waco producers' recounting of events. A few reports are complete with "legal experts" whose soundbites were likely part of the same talking points sent to reporters. Note that in any story you read, the only source supporting the TFC's "side" is the Film Commission itself.
Let's call the facts as they are: the TFC told the Waco producers that they wouldn't qualify for the incentive based on the script. The incentive is awarded once the movie is done so that producers can't pull fast ones on state governments. It's a post-sale rebate, not the kind that you get for showing up at the store.
I'm no lawyer, but a state agency endorsing a factually inaccurate script purported to be based on true events would be problematic for that agency, and by extension, the State itself. Assuring Waco that they'd be eligible for an incentive that they would not qualify for under a statute would put Texas in violation of its own laws. How was it so hard to connect these dots?
[UPDATED 3:56pm: One of Austinist's editors dropped me a link to their responsible, well-reported followup from last year, which offers more context than other outlets seem to be able to muster then or now. The key detail here is that all of this blew up while the movie was in pre-production, when the producers had ample time to make changes, but refused to. The law's the law. Vote people out of office or lobby them if you want a law changed. You can't just wish and dream it away. Austinist gets it, and I'm having trouble finding another site that does.]