This article is adapted from the Third Edition of The Writer’s Legal Guide: An Authors Guild Desk Reference by Tad Crawford and Kay Murray. Order toll-free from 800-491-2808 or online at www.allworth.com.
The First Amendment to the United States Constitution holds that “Congress shall make no law… abridging the freedom of speech, or the press,” and its reach extends to the 50 states by virtue of the 14th Amendment. The word “press” includes not just newspapers, but books, magazines, broadcast media including the Internet, and motion pictures–virtually any means of conveying information.
The simple theory behind it, Justice Oliver Wendell Holmes, Jr., explained in 1919 is: “The ultimate good desired is better reached by free trade in ideas… the best test of truth is the power of the thought to get itself accepted in the competition of the market…”
But this freedom is obviously not absolute. In addition to copyright, trademark, and unfair competition laws, which punish published expression that infringes the rights of others, civil remedies for defamation and invasion of privacy are available in every state. Also, laws that punish obscenity and allow censorship abound throughout the country. And school and library censorship occurs daily.
In-depth treatments of any of these topics would–and do–fill volumes. What we offer here is an assessment of some of the legal risks facing publishers and writers regarding defamation, along with some practical suggestions for self-protection. Keep in mind that state and federal courts have developed the laws of defamation and privacy over many years, that the legal standards vary, sometimes substantially, from state to state, and that it is not even clear which state’s laws might apply to a work published nationwide. Happily, one set of standards does apply to all works–those set by the First Amendment as interpreted by the Supreme Court.
Libel & Slander Liability
Almost every state defines defamation as the publication of a false statement of fact about a person or organization, in writing, visually, or verbally, that is derogatory and that injures the subject’s reputation. The statement must reach at least one person other than the subject because damage to a reputation is the essence of defamation. If the statement is spoken, the defamation is deemed “slander.” If it’s expressed visually, through words or images (including motion pictures), it is “libel.” In many states, injury to a reputation is easier to prove when the claim is libel rather than slander.
Every party who participates in publishing or repeating a defamatory statement can be liable to the defamed person. A person who merely repeats the statement is equally liable, even if that person names the source, indicates disbelief, uses the phrase “it is alleged,” or says the story is based on rumors.
A distributor of the statement, such as a bookseller, is not liable unless it has notice of the defamation and continues to distribute the publication. Federal law makes Internet service providers immune from liability for defamation occurring through their services.
The Truth Test
In almost every state, you’re not liable for defamation unless your statement is false. The truth or substantial truth of a statement is therefore an absolute defense. Unauthorized biographies are legal, as long as they do not make false and defamatory statements about their subjects. But once a plaintiff proves that your derogatory statement has injured his or her reputation, the burden of proving that the statement is true shifts to you.
The kinds of statements that could injure a person’s reputation vary as much as people do. Any assertion can injure a reputation if it reduces esteem or respect for someone personally or professionally, casts someone into an improper light, or generates negative feelings about someone. Some kinds of statements, however, are considered so universally harmful that they are deemed defamatory per se. These include statements that impugn a person’s honesty, ethics, or mental health; that claim the subject has a dreaded disease, is an alcoholic or drug abuser, is sexually promiscuous or impotent, or is a criminal. Per se defamation, if false, is considered so obviously injurious that the plaintiff does not have to prove actual damage to reputation. However, a person with a notoriously bad reputation will have a relatively hard time proving injury even when a statement is per se defamatory.
Matters of Fact
Humor, ridicule, sarcasm, questions, alterations of quotes, and insinuations can all be defamatory if they are reasonably understood to injure a reputation, but a genuine statement of opinion is not defamatory. But that distinction does not make it safe to state or imply a defamatory fact in the guise of an opinion. The key question is always whether the offending statement can be verified objectively as true.
In examining a statement for defamatory meaning, a court must interpret the words as they were reasonably understood in view of all the circumstances, including the entire context in which they were published. A suit brought by Dan Moldea over a negative review of his book provides one illustration. Moldea claimed that by saying his work contained “too much sloppy journalism,” the review injured his reputation as an investigative reporter. After first ruling that he had stated a valid claim, a federal appellate court reversed itself, holding that in the context of a book review, the statement was a “supportable interpretation of” the book and thus the review was substantially true.
Along with false statements, false suggestions, impressions, and implications arising from otherwise truthful statements can lead to liability, as defamation by implication. In 1978, for example, the Tennessee Supreme Court held an article implicitly defamatory where it truthfully reported that a woman, upon finding her husband at the plaintiff’s home, shot the plaintiff, but it neglected to state that at the time all three were at a social gathering with several other people, including the plaintiff’s husband.
A concern for protecting substantially truthful speech has led different courts to embrace different standards for measuring the sufficiency of claims of defamation by implication. In Connecticut, defamatory implication must arise from a material omission of information. A federal court ruled the defamatory implication must have been a reasonable reading, and the author must have intended to convey it. A Minnesota court even rejected the concept of libel by implication altogether as contrary to free speech values.
Defamation in Fiction
The vast majority of defamation lawsuits against writers are for nonfiction works, but defamation can occur in a work of fiction that involves real events or people, even if it doesn’t refer to a real person by name. Decisions in the 1970s and 1980s suggested an alarmingly easy test for proving that the depiction of a fictional character was a defamatory statement of fact about a person. Two federal courts allowed a jury to decide whether “the libel designates the plaintiff in such a way as to let those who knew him understand he was the person meant.” And the Illinois Supreme Court held as recently as 1998 that if it’s reasonable for objective readers of a work who know both the author and the subject of the statement to have discerned the reference to the plaintiff, defamation liability is possible.
New York courts have articulated a stricter test for plaintiffs. In 1991, a trial court acknowledged the “accepted fact” that writers base fictional characters on their own experiences and held that “identification alone is insufficient” to overcome a presumption that a character in a work of fiction is imaginary. Rather, the reader must be “totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all.” Another court ruled “the description of the fictional character must be so closely akin to the real person… that a reader of the book, knowing the real person, would have no difficulty linking the two.”
If a book of yours uses some traits of real people in fictional characters, you can protect yourself by changing superficial features–their names, physical attributes, professions, residences–as much as you can. The worse a character is, the more distinct, at least superficially, that character should be from any person you know.
Novels and motion pictures often include disclaimers, such as: “This is a work of fiction. The people, events, and circumstances depicted in this novel are fictitious and the product of the author’s imagination, and any resemblance of any character to any actual person, whether living or dead, is purely coincidental.” Although a disclaimer means little if, in fact, a court rules that a depiction of a character defames a real person, it can decrease the risk or amount of certain kinds of money damages.
Combating the “Chill”
Most of us would agree that unwarranted damage to a person’s reputation should be avoided and remedied. However, if writers and their publishers could be held financially liable to every person about whom an incorrect statement is published, news reporting and writing of all genres would be unacceptably constrained and delayed (or “chilled,” in legal parlance). Cognizant of the importance of Justice Holmes’ “marketplace of ideas” to a free society, the Supreme Court began to interpret the First Amendment as severely limiting defamation claims, basing liability on the degree of the defendants’ fault in publishing an untrue statement relative to the newsworthiness of the story.
In the 1964 landmark case of New York Times v. Sullivan, the Court held that the press may safely make inaccurate statements based on honest error. Public officials may not claim defamation for false statements relating to their official conduct unless the defendant published the false statement with actual malice–that is, with knowledge of its falsity or reckless disregard for its truth or falsity. The public official must prove actual malice “with convincing clarity,” a higher level of proof than for most civil tort actions.
Four years later, in St. Amant v. Thompson, the Court explained that “reckless disregard” for a statement’s truth or falsity means more than a failure to check the accuracy of a news story. Instead, there “must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Nevertheless, failure to verify the accuracy of information by the means and in the time available is risky.
Since the Sullivan decision, the Court has refined the actual malice standard and extended its application beyond public officials to “public figures,” defined as individuals who, by their accomplishments or positions in life, give the public a legitimate interest in their affairs. Examples include politicians, sports figures, mass-media personalities, and other celebrities, but not necessarily family members of celebrities. Private individuals can become “limited purpose public figures,” and therefore be required to meet the actual malice standard, when they actively, voluntarily, or willfully seek the public eye.
States may impose a much lower standard of fault, though, and most of them do, which underlines the need for care and accuracy where defamation is concerned. Whenever you are in doubt, consult a lawyer or other professional with expertise in this area.