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 barnesandnoble.com, 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.

Can a Writer Be Sued for Libeling the Dead? (What Would John Dean Say?)

It seems that, whenever a notorious celebrity dies, tell-all biographies appear within a few months -- or even weeks -- filled with unflattering new disclosures.  One explanation for this phenomenon is (to quote Judge Robert Sack, the author of one of the two leading treatises on libel):

The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors. 

Rodney Smolla, the author of the other leading treatise, concurs:

There is no liability for defamation of the dead, either to the estate of the deceased or to the deceased's descendants or relatives.

The rule seems to be much the same under UK common law, as summarized in this piece from the BBC.

Furthermore, most U.S. cases have held that a plaintiff cannot make an end-run around the rule that "you can't defame the dead" simply by restyling her claim as one for invasion of privacy, intentional infliction of emotional distress (upon the surviving family members), or injurious falsehood.

Even though the law is uncommonly clear on this point, that hasn't stopped an occasional outraged relative of the dearly departed from suing. For example, in1981, Charles Higham wrote a biography of Errol Flynn in which he charged that the actor had been a Nazi spy. Flynn's daughters sued for defamation and invasion of privacy -- unsuccessfully.  In upholding the dismissal of the case, a California appeals court reaffirmed that ''defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family or relatives who are not themselves defamed.''  A copy of the decision is available here.

At one time, the law was not so clear. See, for example, this 1931 article from Time magazine  And there are still a few disturbing wrinkles.  Judge Sack notes that several states, including Texas and Utah, have statutes that purport to define libel to include defaming the dead.  But, citing this Texas case, he concludes that, even in those jurisdictions:

successful defamation suits based on the defamation of the dead where there is no implied defamation of the living are apparently non-existent. 

Robert Spoo recently brought to my attention that there are also a few states, that continue to have antiquated criminal statutes on the books, some of which purport to prohibit defamation of both the living and the dead. In 1998, a federal court struck down one such law in Nevada as unconstitutional.

Doubtless there are abuses -- instances where writers make outrageous statements about the dead that they know to be false.  In response, a few commentators, including Raymond Iryami in "Give the Dead Their Day in Court", Lisa Brown in "Dead But Not Forgotten" (behind pay wall) and amazingly enough, John Dean, have suggested that enacting a civil remedy for disparagement of the dead might worth considering.  Indeed, the idea is not as far-fetched as I, for one, might wish it were.  Remarkably, in 1986, the New York State Senate passed such a bill, but it died a merciful death without being voted upon in the Assembly.  My own view is that such a law would be a staggering blow to biographers, historians, and journalists.

So what might writers take away from all this?

1.  The risks of a judgment being ultimately entered against a writer in the United States for libeling the dead are very close to zero.

2.  The risks of being sued for libeling the dead (or on some end-run cause of action) are very low, but not zero.  A defendant writer should ultimately win, but she might have to incur attorneys' fees in doing so.

3.  If you're writing unflatteringly about the dead in a work that will undergo a legal review by a book or magazine publisher, there is especially little to sweat.  The legal reviewer will presumably help you further minimize any risks and, if there were ever a suit, the publisher's lawyers would have the tools available to wage an exceedingly strong defense.

4.  As a practical matter, the deader the dead, the more improbable it is that there would ever be even a nuisance claim.  The few claims that have been brought tend to be by family members of the recently deceased (e.g., where the family contests a published report that a death was a suicide).

5.  As the quotation above from Judge Sack's book implies, there can be liability when a defamatory statement about the dead also reflects negatively on the living.  Take this statement:  "Before the cold-blooded killer, Fowler, was shot dead while fleeing from the police, he hid out for three days in his brother's apartment" (implying that the brother was an aider and abettor).

6. Truth, of course, is the ultimate defense to a libel claim.  So make sure you have your facts straight, whether you are writing about the living or the dead.  That said, there are times when fiction writers may artfully -- and lawfully -- "lie" about deceased historical figures that they have inserted into their novels or short stories.  (See this earlier post on libel in fiction and this cautionary post by a Writer's Digest blogger.) And that's just one of the reasons a "libeling-the-dead" statute is very bad idea.

What Are the Risks of Misquoting an Interviewee?

"Quotation, n: The act of repeating erroneously the words of another." (Ambrose Bierce, The Devil's Dictionary)

Unless a writer tape records her interviews, has mastered shorthand, or conducts her interviews by email, the questions and answers she publishes will rarely be a word-for-word transcription of what the interviewee said.  A writer should, of course, do her level best to record the interviewee's actual words. However, unless an interview is unusually adversarial, the interviewee will seldom complain about minor disparities in wording as long as you have accurately reported the facts and captured the essence, tone, and spirit of what the interviewee had to say.

Interviews give rise to some interesting issues of journalistic ethics:  Should you correct an interviewee's, you know, verbal tics and grammatical mistakes?  Should you publish a verbatim acount of your interviewee's distinctive dialect or convert his words into standard English?  The Associated Press says "no":

We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote's meaning is too murky to be paraphrased accurately, it should not be used.

Journalists may worry about such things, but they are seldom, if ever, the stuff of lawsuits.

But beware of the man who claims that he has been misquoted in a way that makes him look bad -- unprofessional, bigoted, ignorant, malevolent, crooked, violent -- whereas an accurate quotation would have made him look like the upstanding citizen he believes himself to be.  And be aware that (inaccurately) putting words into your interviewee's mouth that diminish his reputation and expose him to "hatred, contempt, or aversion" can, in fact, be actionable.

As the Supreme Court explained in the the famous (to libel lawyers) case of Masson v. New Yorker Magazine:

A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.

Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.

Jeffrey Masson alleged that he had been the victim of the latter form of misattribution.  Masson is a noted psychoanalyst who was at one time the Project Director of the Sigmund Freud Archives. In 1982, Janet Malcolm interviewed him for a lengthy New Yorker profile, which was later expanded into a book, entitled In the Freud Archives.  One reviewer said that the book portrayed Masson "as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool."  Masson read it that way, too, and sued for defamation, primarily complaining that Malcolm invented a series of quotes that made him look unprofessional. Malcolm denied that she had done anything of the kind.  Here, The New York Times identifies the most famous phrases that Masson challenged:

In three of the five disputed quotations in the two-part, 45,500-word article, Ms. Malcolm wrote that Mr. Masson had said he hoped to turn Freud's home into "a place of sex, women, fun"; that two prominent psychiatrists considered him "an intellectual gigolo," and that he himself would one day be considered the "greatest analyst who ever lived."

Malcolm had tape recorded some of her interviews.  But she testified that she had taken handwritten notes of other conversations, which she believed that she had discarded after typing them up; it was during these unrecorded conversations that the challenged statements were made (according to Malcolm) or not made (according to Masson).

The case went all the way to the U.S. Supreme Court and back down again to trial. In all, there were five quotations at issue; a jury ultimately found that some of the quotes were substantially accurate, some were not, but none of the erroneous quotations was written with reckless disregard for the truth, the minimum level of fault that Masson, as a public figure, had to prove to establish liability.

So Masson lost.  (Here is the decision in the final appeal to the Ninth Circuit Court of Appeals.)  But the case nonetheless continues to stand for the proposition that an inaccurate quotation can give rise to a viable defamation claim.  Moreover, if Masson had been a private figure instead of a public figure, he presumably would not have had to show that Malcolm knowingly or recklessly misquoted him; mere negligent misquotation of a private figure (provided, again, that the misquotation induces an unsavory opinion of the misquotee) might be enough in some states to give rise to a viable claim.

So what can a writer do to avoid a Masson/Malcolm-style smackdown?

1.  As previously stated, do your utmost to get the quotations right.  The more inflammatory the quote, the more careful you should be.

2.  Consider tape recording interviews, especially if they are likely to be contentious.  But, remember, in many states, consent of both parties is required to tape a telephone conversation.  (The Reporter's Committee for Freedom of the Press has published a helpful state-by-state guide on the legality of taping telephone interviews.)  If consent to taping is required, it is a good idea to get the consent itself on tape.

3.  If you recall the gist of a statement, but are not confident about the wording, don't put the words inside quotation marks.  Report it for what it is:  your paraphrase of what was said.

4.  If you haven't taped an interview, and if you aren't certain that you have precisely captured the interviewee's words in your notes, consider inviting the interviewee to review the quotes before publication.  Many professional journalists are loathe to take this step, however, because interviewees will too often disavow making (or want to change) the tactless statements that they actually made. If the interviewer then publishes the quotation as she originally heard it, the litigious interviewee may claim that the interviewer was on notice that the quotation was false.

5.  Consider preserving your interview tapes and notes for a substantial period after the interview is published.  (In a later post, I will have some suggestions regarding how long writers should keep their contracts and source materials.)  A counter-argument can be made in favor of discarding notes; working journalists are rightly concerned that their notes could be subpoenaed, making them involuntary witnesses (a la Judith Miller) or eating up their time and their employers' money fighting the subpoenas.  However, this is seldom a concern for writers who are not covering hot news or doing investigative work.  In the end, there is no always-right answer to question: should I preserve or should I discard?  But, on balance, I would generally keep my notes.  (Janet Malcolm is evidently a preserver rather than a discarder; as reported in the Times article above, her two year-old granddaughter reportedly stumbled upon Malcolm's lost notebook many months after the Masson trial was over.)

6.  Reconstruction of quotations from long ago can be hazardous, too. Memoirists and autobiographers frequently recreate conversations that occurred years earlier.  But, if their memories are at all like mine, they could, at best, only hope to recall the gist of what was said.  Readers understand that the quotation marks around decades-old dialog are a literary convention, not the literal truth.  But that may not stop a quotee from claiming he had been Massonized if he believes that gist is inaccurate and disparages him.

7.  Take to heart the moral of this case against ABC: don't take quotations out of context.

8.  Consider whether an inflammatory quotation could be effective, even without naming the speaker:  e.g., "'Muslims aren't welcome in this neighborhood,' a local grocer said."

Ultimately, there is no call for paranoia.  Occasional inaccuracies in quotations are inevitable (see this long list of famous, but inaccurate, quotations -- some of them deliberate misquotations), but the vast, vast majority do not materially distort the essence of what the speaker said -- and therefore should not give rise to legal liability.

When Is It Risky To Write That Someone Is "Gay"?

There are two starkly different varieties of lawsuits that have arisen from statements that someone is gay:  libel cases in which the statement is alleged to be false; and privacy cases in which the statement is acknowledged to be true.  Both types of claims may become rarer as a result of America's changing values and changing laws.

As to libel claims, there is an argument (indeed, a persuasive one, in my view) that it should no longer be regarded as libelous to call someone gay, even if the statement turns out to be false.  Libel requires a "false and defamatory statement of fact," which is typically defined as a statement that "tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace" among right thinking people.  Not only is it indisputable that the opprobrium formerly associated with homosexuality has diminished, but two major legal developments have taken place in recent years.  First, in 2003, the Supreme Court ruled in Lawrence v. Texas that laws criminalizing private, consensual same-sex sexual activity are unconstitutional.  Second, at least twenty states and the District of Columbia have outlawed employment discrimination against persons based on their sexual orientation, not to mention those states that have recognized same-sex marriages.

In the midst of this changing legal and social climate, it's not surprising that a federal court in Massachusetts stated as early as 2004 that, under Massachusetts Law, a false imputation of homosexuality was no longer defamatory.  And, earlier this year a New Jersey federal court reached the same conclusion, finding, in a case involving two radio "shock jocks," that a statement arguably implying that someone is a homosexual is no longer capable of defamatory meaning under New Jersey law.  

Regrettably, it is by no means clear that other courts will rapidly fall in line; indeed, these cases may not be the last words on the law in Massachusetts and New Jersey.  In fact, earlier this year, a federal court in Texas reached a conclusion opposite to that of the New Jersey court, in rather similar circumstances, holding that a radio personality's statement that an airport security guard was "gay," gave rise to a cause of action because "the imputation of homosexuality might, as a matter of law, expose a person to public hatred, contempt, or ridicule."  The Texas decision is reported here.

While the legal times may be a-changin', it is still far too early to conclude that they have, in fact, reliably changed.  So, as a writer, you should be aware that if you publish a statement that an identifiable living person is gay, you could still be held liable for it, if you turn out to be wrong.   (Provided, of course, that the plaintiff can prove all of the other elements of a defamation claim.)

But what about the flip side?  Can there be liability for publishing a true statement that someone is gay when that fact is not already generally known?

Many -- but not all -- states recognize a legal cause of action for "public disclosure of private facts."  A plaintiff in a "private facts" case must prove that the defendant published highly personal information about plaintiff's life that has not previously been publicly revealed, that is not of legitimate public interest, and the disclosure of of which would be offensive to a reasonable person. A terrific short summary of the law pertaining to public disclosure of private facts is available on the outstanding Citizen Media Law Project site.

The most famous lawsuit involving "outing" was brought by ex-Marine Oliver Sipple, the hero who intervened to save President Ford's life, when Sara Jane Moore attempted to assassinate him in 1975.  Subsequent press coverage of the assassination attempt, including articles in the San Francisco Chronicle, reported that Sipple had been a campaign worker for Harvey Milk and a figure in San Francisco's gay community.  Sipple was distressed by the coverage of his personal life, in part because he had never disclosed his sexual orientation to his parents, brothers, or sisters, who learned about it for the first time from the news accounts.  But Sipple lost his case because the fact that he was gay was not deemed "private," given that his sexual orientation and gay rights activism were already known "to hundreds of people in a variety of cities."  Moreover, his personal life was "newsworthy" because, by his actions in saving the President's life, he had become -- albeit involuntarily -- a public figure.  The same newsworthiness arguments might conceivably lead to a similar result in a case of outing a closeted elected official who has hypocritically railed and voted against gay rights.


But change the facts a bit and you could easily get a different outcome.  Assume that the person being outed is not a public figure.  And assume further that only a relatively small number of people were aware of his or her sexual orientation.  In that circumstance, the outed person might have a claim for public disclosure of private facts.  For example, in Diaz v. Oakland Tribune, a California court found that a student political leader could maintain a claim for public disclosure of private facts against a newspaper and a columnist for reporting that she had undergone a sex change operation -- a fact that was previously known only to her immediate family and closest friends. 


By analogy to the Massachusetts and New Jersey libel cases, it could be argued that the waning stigma associated with homosexuality in 2011 makes it less likely that a truthful statement that someone is gay would be deemed highly offensive to a reasonable person, even if he or she has not widely disclosed his or her sexual orientation.  That said, it can be difficult to see the ethical justification for publicizing the sexual orientation of a non-newsworthy, private figure who has not openly acknowledged it himself/herself, particularly when so many young people struggle mightily with the question of whether and how to make the disclosure to their friends and family.  I  realize this response is, to some degree, inconsistent with my view of the private figure libel cases. Maybe it's because reported instances of private figure outing often seem to arise in the context of alleged teen bullying, as in this haunting case, rather than in the context of well-intentioned journalism.


So, writers, if you are going to publish a statement that someone is gay, make very sure you are right, and, make very sure that the person has already publicly disclosed his or her sexual identity or that there is a compelling public interest in doing so.


Difficult questions arise in the context of memoirs, when telling your own story truthfully sometimes requires disclosing intimate facts about those you are close to.  There are some important cases that deal with this dilemma, and some courts have cut writers some slack -- a subject to which I will return in a later post.


Postscript:  Of course, writers should not feel legally inhibited about referring to openly gay public figures as gay.  And, of course, in openly gay communities, and in the publications that cover them, discussion of non-public-figures' sexual orientation is entirely commonplace.  In communities where people freely and frankly make known their own sexual orientations, the public discussion of sexual identity is unlikely to offend and unlikely to give rise to legal disputes.

Can I Mention Brand Name Products in My Fiction?

Writers frequently ask whether they can mention brand name products and services in their fiction.  The answer is "yes," provided that you take some common sense precautions.  Indeed, if it were unlawful to include brand names in fiction, countless product references in Bret Easton Ellis's novel Glamorama would have been expurgated, and David Foster Wallace could never have described in Infinite Jest an alternative present where large corporations purchase naming rights to the calendar years (e.g., "Year of the Whopper," "Year of the Trial-Size Dove Bar," "Year of the Perdue Wonderchicken," "Year of the Depend Adult Undergarment," and "Year of Glad").

The four areas of law to consider in connection with brand names are "trademark infringement," "trademark dilution," "trademark tarnishment,"and "defamation."

A classic case of "trademark infringement" is the unauthorized use of a name in a way that creates a likelihood of confusion as to the origin of the goods or services.  For example, if you were the manufacturer of aluminum foil and decided to name your foil "Glad," the Glad Products Company, manufacturers of Glad plastic wrap and Glad trash bags would likely think your use of the term is an infringement.  Even if Glad Products Company doesn't manufacture aluminum foil, aluminum foil is sufficiently close to plastic wrap to create a likelihood that some shoppers would be confused as to whether your aluminum foil is manufactured, licensed, or endorsed by the makers of Glad plastic wrap.  Keeping this principle in mind, it is evident why fiction rarely gives rise to trademark claims.  When David Foster Wallace imagines a world in which Glad Products has bought naming rights to the year that would otherwise have been called 2010 (under the old number/naming system), he isn't using "Glad" to sell his own confusingly similar goods.  He is, in fact, using "Glad" to refer to Glad Products' own goods.  Trademark lawyers call this "nominative fair use," and it does not constitute infringement.

"Trademark dilution" is a somewhat different legal theory that gives owners of famous brand names a legal right to prohibit others from using those names in a manner that would make them less "distinctive," less able to identify and distinguish the owners' goods or services.  For example, trademark owners have fits when writers of fiction or non-fiction use their brand names as generic terms for products or services.  The Xerox Corporation doesn't like writers or the public to speak of "xeroxing" documents, instead of photocopying them; Johnson & Johnson doesn't want their Band-Aid brand to become the generic term for bandages; and Google complains about the use of the term "googling" instead of using the Google brand search engine for "searching" the Internet.  Once in a while, a writer will receive a lawyer's letter from a company urging him/her not to genericize the company's brand names.  Usually, the dispute goes no farther than that.  Writers can avoid even mild reprimands of this sort by respectfully capitalizing brand names.

"Defamation" and "tarnishment" are the areas where there could, in rare instances, be greater cause for concern.  If, for example, you falsely depict a brand name product as being dangerous or defective, a manufacturer could be heard to complain.  Ultimately, the manufacturer should have to prove that some readers actually understood the disparaging depiction to be a statement of fact, not fiction, but there is seldom an artistic necessity to test that line.

Trademark "tarnishment" is a kind of hybrid between trademark dilution and defamation.  Such claims arise when a non-owner uses another's trademark in highly disparaging or offensive contexts. The best-known tarnishment case was a successful claim by the Dallas Cowboy Cheerleaders (who owned a registered trademark) against the makers of the pornographic movie, Debbie Does Dallas, in which the actresses were depicted in the cheerleaders' trademarked uniforms, to the extent that they were depicted in anything at all.  The Appeals Court's famous (at least to trademark lawyers) decision is here.  Notwithstanding the Debbie Does Dallas decision, some uses of trademarks in ways that the owner regard as highly disparaging may be successfully defended as parody, as described in this online article by Leslie Lott and Brett Hutton.

A sensible precaution:  if you are depicting brand name products or companies in an unsavory light in your novel or short story, it is often prudent to invent a fictional brand or a fictional company. If there is a compelling artistic reason to use real products and real companies in contexts that arguably disparage them, it is wise to seek advice, prior to publication, from your publisher's attorney -- or an attorney of your own -- on how best to minimize the legal risks.

The movie industry has always been exceedingly cautious about the use of brand names and the names of real people in films.  For example, the director Danny Boyle, told the press that he caused Mercedes Benz logos to be digitally removed from cars in his film Slum Dog Millionaire when the manufacturer objected to the depiction of its cars in Bombay slum settings.  (It is difficult to imagine a successful claim arising from such innocuous use, but movie studios are unwilling to run any legal risks that could conceivably lead to an injunction interfering with timely distribution of their films.)  More frequently, of course, companies pay the movie studios for product placement.  (There are even isolated isolated reports of paid product placement in novels.)  I can only speculate that the movie industry's obsession with the depiction of brands in fictional works is the source of the largely unfounded concerns about the depiction of brand names in written fiction.

Again, the use brand names in fiction is not a sleep-depriving issue.  It would be obsessive (and stylistically unpalatable) to use the R-in-a-circle symbol or the TM symbol every time you refer to a brand name in your text.  And, as long as you do not write falsely and disparagingly about real brands and the companies who manufacture them, you are unlikely ever to run into a problem.

Could I Be Liable for Libel in Fiction?

First, by way of reassurance, you should keep in mind that libel in fiction is rare.  Considering the vast number of novels, short stories, and satirical works published every year, successful libel suits arising out of fiction are few and far between.

In theory, the circumstances that can give rise to a claim are fairly obvious:  a character in a work of fiction is interpreted by readers to be a depiction of an actual living person; the character is depicted as behaving in an unsavory manner; and the living person contends that he/she never engaged in such behavior.  Plaintiffs have ranged from clearly named public persons to obscure (and even considerably disguised) acquaintances of the authors. This interesting ongoing case involving an episode of Law and Order is fairly typical; according to The Wall Street Journal it is the first libel in fiction case to survive summary judgment in New York in nearly 25 years.

You do not libel someone simply by depicting him or her in fictional circumstances.  Libel requires a false and defamatory statement of fact "of and concerning" an identifiable living person (or business entity).  If real people are depicted in your work only as engaging in acts they actually engaged in, there is no "falsity."  If real people are depicted in your work only as engaging in acts that are not at all untoward, there is no reasonable claim for that your work is "defamatory."  (Of course, your model's view of whether he or she has been held up to shame and ridicule may differ markedly from yours.)  Finally, if readers would not understand the statements you are making about your fictional character to be statements about a real person, then the statements are not "of and concerning" that person.

Rodney Smolla, the author of one of the two leading treatises on defamation, has neatly summarized the spectrum of risk:

When an author wants to draw from a real person as the basis for a fictional character, there are two relatively "safe" courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character's conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character's reputation, but make substantial efforts to disguise the character . . . to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person's attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

The courts have struggled with the question of when statements in a fictional work should be deemed "of and concerning" a real person with similar attributes.  In the most plaintiff-friendly decisions, the courts have said that a jury need only determine whether "the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant." Here is one such case; note, however, the court's extensive itemization of similarities between the plaintiff and the character in order to justify its decision.  Other cases, such as Welch v. Penguin Books, have been far more protective of writers, holding that "identification alone" is not a sufficient basis for imposing liability, and that the jury must instead be "totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all."

How do you avoid defaming someone with your works of fiction?

1.  Don't use your published work to settle scores with others.  Reserve your vengeance for your diary or private notebooks.  If you suspect your readers will recognize your fictional villains as the real-life individuals whom you used as models, then more fiction and less faction may be in order before you publish.

2.  If you model a negatively portrayed character after a real person, change as many identifying details as you reasonably can:  name, place of residence, age, physical description, personal background, occupation, relationships with other characters -- even the character's sex or ethnicity.

Sidebar:  The 1979 California case of Bindrim v. Mitchell illustrates the challenges of disguising a character while retaining the essential elements of the story you want to tell.  Gwen Davis Mitchell, the author of the novel Touching, had attended a series of real-life therapy sessions conducted by Dr. Paul Bindrim.  As a condition of participating, she had signed an agreement in which she agreed not to write about the sessions.  When Mitchell later wrote her novel, she included a character, Simon Herford, who conducted marathon nude therapy sessions and occasionally used less-than-chivalrous four-letter words.  Actually pretty mild stuff by 2011 standards.  The fictional Herford not only had a different name from Dr. Bindrim, but Mitchell also gave him a different physical appearance and a different professional background.  Nevertheless, the court found that Herford was recognizable as Bindrim to at least some of his colleagues, and therefore, to the extent that readers understood the novel to be making statements about Bindrim that he could prove to be false and defamatory, Bindrim could recover from Mitchell for libel. Here is an amused and amusing People magazine account of the dispute.  Ultimately, Dr. Bindrim obtained a substantial judgment against the novelist and publisher, which was upheld on appeal.  (Full disclosure: my firm was involved on behalf of the defendants at the appeal stage.)  The existence of the contract was an unusual twist and certainly complicated the defense, but the case stands as a warning about the considerable care that must be taken to distance fictional characters, who are depicted as misbehaving, from real individuals who may have inspired those characters.

3.  Don't use a name for your villain that echoes or conjures up the name of a real person on whom the character is based, e.g., Donald Knight should not be renamed Ronald Day in your novel.

4. Disclaimers can't hurt.  You will frequently see in the front matter of novels a statement such as:  "This is a work of fiction.  Names, characters, places, and incidents are the products of the author's imagination or are used fictitiously.  Any resemblance to actual events, locales, or persons, living or dead, is entirely coincidental."  A disclaimer won't really protect you if there is evidence that the similarities are not "entirely coincidental."  Nevertheless, a disclaimer gives a lawyer defending you something specific to point to in order to underscore to the court that "this work is presented to the world as 'fiction' not as a factual account."  And, remember, under the law, a reasonable reader would have to understand a statement about a person as a "false and defamatory" statement of fact for it to be libelous.

5.  Keep in mind that (with rare exceptions I won't venture into here) you can't libel the dead.  Basing a character on the dearly or undearly departed is unlikely to give rise to a problem.  (But keep in mind how your dead character interacts with other characters, who may have counterparts among still-living real individuals.  For example, consider a plot line where a character -- based on a real though dead person -- is depicted as a murderer, and his fictional brother is depicted as failing to disclose the crime to the authorities; a real-life brother of the real-life, identifiable model for the killer character might be heard to complain.)

6.  In some instances, the fact that the fiction is so far-fetched has worked to the author's benefit, giving rise to  a successful argument that no reasonable reader could possibly conclude that the defamatory statements were statements of fact, even though a reader might conceivably associate the character with a living person.  See the kinky case of Pring v. Penthouse.

7.  Remember that businesses and organizations can be defamed, too; so take care to avoid the false implication that an identifiable real entity has engaged in bad acts.

8.  If you have doubts or concerns about the way you have modeled a character after a living person, raise them with your editor or the publisher's in-house attorney before the work goes to press.  With a little rewriting, libel in fiction issues are almost always resolvable without significant detriment to a story line. You can still write a biting roman a clef even in these litigious times.

On my bookshelf of books on law for writers, The Writer's Legal Guide and The Rights of Authors, Artists, and Other Creative People have the best discussions of libel in fiction.  Online, Julie Hilden has a good post focusing on a disturbing Texas case.  And here are posts from two other practicing attorneys with useful background on the issue, one by David Hudson and an older one by Alan Kaufman.

Again, don't over-sweat this.  Libel in fiction is an infrequent problem and one that can be readily avoided with some advance thought about how you are using real-life models for your fictional characters.  Far more challenging and more common is the problem of reducing the risks of a defamation action arising from a tell-all memoir -- a subject that I will return to in a later post.

Can I Be Sued for Publishing the Truth?

Here is another post updated from a question and answer that originally appeared in my column in Debbie Ridpath Ohi's popular online newsletter of yore -- Inklings.

Q.  I am working on a nonfiction project of a very sensitive nature, and have a lot of factual material, including documents, original letters, and more.  I want to know what my rights are as far as making these things public.  These letters were written to me, and I don't know how much detail I should go into as this moment . . . . [I do not know] if I can use true names and photocopies of these letters and documents, or if I need to change names, and rewrite letters I have received to protect myself from suit.

A.  Your question raises implicates at least three separate areas of the law: defamation, privacy, and copyright.

Defamation claims arise out of false statements concerning individuals or businesses that tend to harm their reputations.  Simplistically stated, you cannot be liable for defamation if what you publish is true.  Indeed, under U.S. law, even if you inadvertently publish false information, you may escape liability if, in researching and writing your work, you have exercised the degree of care consistent with the principles of responsible journalists and authors.  The degree of fault necessary to impose liability for defamation may depend on whether the subject of an erroneous statement is a public figure or a private figure.

By contrast, under the law of privacy (particularly that branch known as "public disclosure of private facts), you can be liable in some states for publishing true statements, if they would be highly embarrassing to a reasonable person and if the statements do not related to a matter of legitimate public concern.  For example, intimate revelations about a person's sex life or embarrassing medical condition may raise invasion of privacy concerns, even if they are true.  The law as it applies to public disclosure of private facts can be quite complex.  If you are telling "your own story," and the private facts you wish to disclose are essential to that story, it may, in some instances, provide you with a defense.  But you will surely need an attorney to help you navigate those waters.  I will return to this subject in a later post.

Additionally, your question raises copyright issues.  Even though the letters were addressed to you, the copyright ownership likely remained with the letter writer.  Unless ownership was formally transferred to you or unless you received permission from the letter writer to quote from the letters, you may only quote from them to the extent permitted by "fair use."  That said, copyright right protects expression, not ideas, you may be able convey much of the information in the letters in your own words, without infringing the letter writers' rights.

When a work raises issues of defamation or invasion of privacy, a publisher may ask the writer to document and explain in detail his or her basis for making particular statements.  You may, for example, be asked to disclose to the publisher's attorney the documents and letter on which you have relied.  You will also likely be asked to warrant in your publishing agreement that your work does not violate anyone's legal rights (e.g., that your writing will not give rise to defamation, privacy, or copyright claims).

Sometimes, as you suggest, name changes and rewriting your source materials, are prudent; the best approach must be arrived at on a case-by-case basis.  Although it came out quite a few years ago, Kenneth Norwick's The Rights of Authors and Artists, published by the American Civil Liberties Union, continues to provide a good, clear, general introduction to the principles of libel and privacy law.  However, if you are about to embark on a controversial project that you fully expect will be published, whether in print or online, you may wish to consult an experienced media lawyer at the outset to discuss the libel, privacy, and copyright issues you will be facing.  If you already have a publisher, the publisher's attorney may be able to give you the early, practical advice you need.