Thursday, June 19, 2014

Can I (Successfully) Be Sued for My Scathing, Cruel, Factually Misleading (but Very Witty) Review of Your Book?

In a television appearance on the Dick Cavett Show in 1980, the novelist Mary McCarthy was asked which writers she regarded as overrated. McCarthy singled out the playwright and memoirist Lillian Hellman as "a bad writer, a dishonest writer," and went on to say "every word she writes is a lie, including 'and' and 'the.'"

As Franklin Foer tells the story, "when Lillian Hellman heard the quip in her bed, she laughed. By the time her assistant arrived for work the next morning, Hellman had called her lawyer, and set in motion a $2.25 million libel suit against McCarthy."

Did Hellman have a legal leg to stand on? I'll come back to that question in a minute.

There's no doubt that a scathing take-down of a book or movie or other work of art can provide a wicked source of pleasure to both the reviewer and her readers. Some deliciously disapproving book reviews may be found in this collection of pans, this one, this one (focusing on harsh assessments of literary classics), and this one (featuring caustic reviews by New York Times critic Michiko Kakutani). At least two books have chronicled the history of bookish slam pieces: The Fine Art of Literary Mayhem and Rotten Reviews Redux. And there is even a Hatchet Job of the Year award for the "best" worst review.

But can a negative review of a book or film or other creative work go too far and give rise to a successful legal claim against the reviewer? The answer: yes, but (thank heavens) rarely. To make sure your reviews don't plunge you into legal hot water, you should bear in mind the sometimes fuzzy line between constitutionally protected opinion and legally actionable libel.

By way of background, libel is defined as a false and defamatory statement of FACT about a living person or a business entity or product that causes harm to reputation. From the definition, it follows that: (1) you can't libel the dead; and (2) truth is an absolute defense to a libel claim. (If it ain’t false, it ain’t libel.)  It also follows from the definition that a statement cannot form the basis for a viable libel claim unless it can reasonably be interpreted as an assertion of a fact. That's where the crucial distinction between fact and opinion comes into play.

In Milkovich v. Lorain Journal Co., the Supreme Court identified two general categories of "opinion," which are protected by the First Amendment. The first category consists of statements that are not "provable as false" by objective evidence. For example, when a magazine described a store as "trashy," a federal appeals court held that the word "trashy" is "quintessentially subjective," a "chameleon that continuously changes colors and shades of meaning" and "admits of numerous interpretations"; "we can imagine no objective evidence that might conclusively prove or disprove it." Therefore, the judges found that, in context, the word "trashy" was pure opinion and could not support a libel claim.

A second category of opinion identified in Milkovich is "loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously" stating an actual fact. Many instances of rude name-calling fall into this category, including characterizations such as "stupid son of a bitch," "idiot," "jerk," "disgrace to the species," and a personal favorite, "creepazoid attorney." Barbed jokes or satire often qualify as protected opinion, for the same reasons.

Regrettably, the distinction between fact and opinion can be elusive. It is blurriest when (1) you mix negative opinions with negative statements of fact, or (2) you express opinions that imply the existence of highly negative facts without stating them. (An example of the latter: saying "I believe Mark Fowler is a con artist" without providing facts that make it clear whether you are accusing me of committing criminally fraudulent acts or merely spouting self-serving bull.)

And you should keep in mind that merely labeling something an "opinion" doesn't necessarily make it so in the eyes of the law; for example, it would be ill-advised to say "In my opinion, he killed his father and married his mother," unless you have the facts to back it up.

Now let's apply these principles to an actual review.  Susan Cohen, writing in the Charleston City Paper in 2008, said of The Girl with a Dragon Tattoo “this is easily one of the worst books I have ever read, and remember I’ve read John Grisham.” Unflattering? Yes, very. Libelous? No way. Stieg Larsson certainly didn’t have a claim for libel. He died in 2004, years before the review was published. But neither did John Grisham, who was -- and is -- very much alive. A purely aesthetic judgment about Grisham's and Larsson's works ("one of the worst I've ever read") simply isn’t capable of being proven true or false. Therefore that statement shouldn't qualify as actionable libel no matter how damning the opinion may be. As one court explained, "While a bad review necessarily has the effect of injuring an author's reputation to some extent -- sometimes to a devastating extent -- criticism's long and impressive pedigree persuades us that, while a critic's latitude is not unlimited, he or she must be given the 'breathing space' appropriate to the genre." As far as I know, Mr. Grisham (who practiced law for a decade) did not threaten legal action against Ms. Cohen -- perhaps because he has a sense of humor, a thick skin, and/or a healthy appreciation of the First Amendment.

Next, let's consider a closer question. In a review of the book Interference about the influence of organized crime in football, a reviewer for The New York Times wrote, among other uncomplimentary statements, that "there is too much sloppy journalism to trust the bulk of this book’s 512 pages.” The author of the book, Dan Moldea, sued. Few libel cases have taken as many twists and turns. The district court found that the challenged statements were either substantially true or non-actionable opinion.  But the appeals court initially disagreed and found, among other things, that "the review attacks Moldea's competence as a practitioner of his chosen profession." As a result, the court concluded that some statements in the book review might be libelous, if they were proven to be untrue.

Judge Mikva wrote an eloquent dissent, arguing that to charge a writer with "too much sloppy journalism" is not equivalent to saying that a brain surgeon has "clumsy hands."
The reviewing of books is an art form almost as old as civilization. The more important the book, the more controversial the reviews. Courts should be most hesitant to assume an arbiter's role in this most delicate area of First Amendment speech. While the designation of speech as a "book review" should not automatically exempt it from the libel laws, any more than the "opinion" label enshrines other speech, the "sloppiness" of the reviewer's work should be left to the readers to determine, rather than for judges or juries to ordain.
Then, surprisingly and thankfully, the judge who had written the majority opinion for the appeals court reconsidered and totally reversed his position, noting that he had:
failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review, a genre in which readers expect to find spirited critiques of literary works that they understand to be the reviewer's description and assessment of texts that are capable of a number of possible rational interpretations.
The chastened Moldea court then went on to prescribe a new and influential standard for distinguishing opinion from libelous statements of fact in the context of reviews.
The proper analysis would make commentary actionable only when the interpretations are unsupportable by reference to the written work. . . . This "supportable interpretation" standard provides that a critic's interpretation must be rationally supportable by reference to the actual text he or she is evaluating, and thus would not immunize situations analogous to that presented in Milkovich [the Supreme Court case mentioned above] in which a writer launches a personal attack, rather than interpreting a book. This standard also establishes boundaries even for textual interpretation. A critic's statement must be a rational assessment or account of something the reviewer can point to in the text, or omitted from the text, being critiqued. For instance, if the Times review stated that Interference was a terrible book because it asserted that African-Americans make poor football coaches, that reading would be "unsupportable by reference to the written work," because nothing in Moldea's book even hints at this notion. In such a case, the usual inquiries as to libel would apply: a jury could determine that the review falsely characterized Interference, thereby libeling its author by portraying him as a racist (assuming the other elements of the case could be proved).
Applying its newly minted "supportable interpretation" standard, the appeals court found that all of the statements in the review of Interference were either substantially true statements of fact or were opinions "supportable by reference to the written work," and therefore not libelous.

Don’t let me make you paranoid. Libel actions arising out of book or movie reviews are few and far between. How many merciless book reviews have been published in, say, the last thirty years?  Tens of thousands?  More?  But only a relative handful have given rise to lawsuits. And almost none have ultimately resulted in judgments against the reviewers or their publishers.

But don’t let me make you UNparanoid either. Defamation lawsuits involving unflattering book or film reviews are rare, but not rare enough for you to let down your guard. For example, in Stuart v. Gambling Times, the plaintiff-author sued over a review calling his book about gambling "the #1 fraud ever perpetrated upon the gambling reader" -- a statement that was held to be protected opinion. True crime writer Ann Rule recently sued the Seattle Weekly (thus far unsuccessfully) over an article that critiqued her book Heart Full of Lies; Rule contended that the article contained "innumerable inaccuracies and untruths" about her reporting. Harvard historian Niall Ferguson threatened suit over a negative review of his book Civilization: The West and the Rest, but he ultimately chose not to litigate. In England, author Chris McGrath did file suit against an Amazon reviewer (as well as the evolutionary biologist Richard Dawkins) for unfavorable comments about his book.  The litigation turned out to be an expensive mistake. A publisher sued a Canadian librarian for an unflattering blog post contending, among other things, that the publisher's works were "second class scholarship." A disturbing criminal proceeding in France against the editor of book review website was dismissed. But the Daily Telegraph in London was ordered to pay $100,000 over a book review that a judge found to be "spiteful" and to contain serious factual errors.  And libel litigation over negative reviews of other types of products and services is booming.

So what steps can you take to protect yourself from a libel claim when you write a review?

1. In reviewing works of fiction or dramatic films or works of visual art, you will often be making aesthetic judgments, which will generally qualify as protected pure opinion. However, when you write about non-fiction or documentaries, you may be more likely to make factual assertions, which could be proven true or false. When making factual claims, protect yourself by being the best and most responsible sort of journalist, carefully checking your sources. Be especially cautious when you are stating or implying that someone has committed a crime, acted unprofessionally, unethically, or incompetently, abused controlled substances, gone bankrupt, or is unchaste. (Interestingly, legal views of what constitutes an actionable accusation of unchastity are slowly changing, as illustrated by this case involving a sex tape allegation.) Also be extra cautious if you state or imply that a product is defective or dangerous.

2. As the great Jan Harayda puts it, "review the book, not the author." For example, it’s one thing to say that a book contains factual misstatements (assuming that you're right and the author is wrong). It’s another to say that the author “distorts” the facts – that’s a definite yellow light, trending away from a review of the text and toward an attack on the author. And you may well be picking a fight if you say that the author knowingly “lies.” That's not to say that you can't hold and express highly negative opinions about the character of a writer, but when you publish them, you are taking on a different level of risk. Tread carefully.  If you're going to be caustic and cruel, make sure your facts are faultless.

3. Don't use a review (or any blog posting) as a vehicle for settling scores. Although statements made out of spite or ill-will are not actionable for that reason alone, think twice before reviewing the work of author against whom you bear a personal grudge.

4. Avoid using inflammatory words just for the sake of being colorful or shocking. Words like racist, Nazi, bigot, blackmail, bribe, cult, scam, liar, dishonest, incompetent, quack:  all might conceivably qualify as statements of opinion – in the right context.  However, in a different context, those same words might be deemed disparaging statements of fact. Realize that hot-button words give rise to a disproportionate number of libel claims.  Never use such words loosely.

5. Keeping in mind the "supportable interpretation" standard in Moldea, bolster your criticisms with specific, accurate references to the text on which you base your opinions.

6. If you do receive a complaint letter from someone who implies he might take legal action, speak to a lawyer right away.

7. If you make a serious mistake, in some states -- but not New York -- you can protect yourself against certain types of damage claims by making a prominent retraction. It is, in fact, almost always a good idea -- ethically, legally, and interpersonally -- to correct the record. However, you would be well-advised to consult with an attorney for assistance in framing a correction, particularly if you are being threatened with legal action.

8. Consider publishing an offended person’s response. Often what a complainant wants most of all is to tell her side of the story.

9. Remember that, if you are publishing reviews on your own blog or even on Amazon or, you performing on a high wire with a potentially large audience and no safety net. You don’t have editors or fact checkers reading your work before you post it on the web.  You don’t have a well-healed news organization standing behind you – with lawyers ready to vindicate your rights and insurance to pay the lawyers for doing so. So you must act as your own editor, ensuring that you have your facts straight and that you aren't sacrificing fairness for the sake of snark.

Lawsuits can be scary and expensive, even when you win a smashing early victory. In most states (except a few with strong anti-SLAPP laws), a prevailing libel defendant still has to pay her own attorneys' fees. But if you are careful and professional, and if you know something about the law of libel, it’s very unlikely that you will ever be sued for any of your reviews.

But what about Lillian Hellman's case against Mary McCarthy? Amazingly, a New York court declined to find that McCarthy's statement was a simple joke or protected opinion. (Most libel lawyers think the judge was wrong.) The case dragged on for five years until Hellman died and the lawsuit was dropped. As Foer reports, McCarthy was disappointed; she told The New York Times that “I’m absolutely unregenerate ... I didn’t want her to die. I wanted her to lose in court. I wanted her around for that.”

Other resources:  Here is a blog posting about lawsuits arising out of bad reviews on Yelp. And here is a piece about "how not to get sued when reviewing" products online.  As this New York Times article explains, strong anti-SLAPP statutes in some states can sometimes be helpful to posters who get sued for statements of protected opinion, but many states have weak laws or no anti-SLAPP laws at all.  For more about the law of libel, please see these earlier posts.