"Any Damn Fool Can Be Accurate -- and Dull": Can I Be Liable to My Readers for Lying About Myself?

In 1929, actress Joan Lowell published a memoir of her childhood entitled The Cradle of the Deep. According to The Los Angeles Times, Lowell reported how her sea-captain father had raised her on a trading ship, the Minnie A. Caine, until she was 17.  She learned her first swear words at age two, witnessed a man being eaten alive by a shark at age 16, personally harpooned a whale, and occasionally played strip poker with the all-male crew.  When the ship caught fire off Australia, Lowell managed to swim three miles to safety with a kitten clinging to her back. Cradle of the Deep was a Book-of-the- Month Club selection, sold more than 100,000 copies, and was slated to be adapted into a talking movie produced by D.W. Griffith.  But then Lowell's childhood neighbors spoiled the fun and revealed to the press that her story was almost entirely bilge water.  Although Lowell's father was, in fact, a sea captain, Lowell herself had spent only a few months at sea and had lived most of her youth high-and-dry in Berkeley, California. When reporters questioned her about the factual "inconsistencies," Lowell explained that a writer's first duty is to tell a good story. "Any damn fool can be accurate -- and dull," she said. The Book-of-the-Month Club offered refunds to book buyers, but took no legal action against Lowell. There's more about Lowell and a great picture here.

If Joan Lowell had published her "memoir" today, she would have run a high risk of being sued by class action lawyers purporting to represent readers duped by her deception. Make no mistake, if you lie about yourself in your memoirs, you are courting legal liability to your publisher, as well as public disgrace if you are discovered.  But how likely are faux memoirists to be found liable to their readers?  And should the courts entertain duped readers' claims at all?  Here are some thoughts:

1.  There is a long and colorful history of writers telling bald-faced lies about themselves in memoirs and autobiographies.  An amusing Wikipedia article describes 32 instances of "fake memoirs" in which "a wholly or partially fabricated autobiography, memoir, or journal of an individual is presented as fact."  And a few years ago The New York Times published an article headlined "A Family Tree of Literary Fakers," profiling, among others, Margaret Seltzer, author under the pseudonym Margaret Jones of a largely fabricated gang memoir, Love and Consequences; J.T. LeRoy, who wrote two "memoirs" before New York Magazine revealed that LeRoy's life was an elaborate hoax perpetrated by Laura Albert; and Binjamin Wilkomirski who wrote Fragments, a memoir of his boyhood in a concentration camp -- a story marred in the minds of some readers by the fact that the author was later revealed to have "spent the war in relative comfort in Switzerland."  But my favorite memoir controversy revolves around Lillian Hellman's Pentimento, a book that I read with pleasure years ago and which is filled with literary gossip and vinegary anecdotes.  Yet to this day, it has never been clear whether Hellman really smuggled $50,000 in a fur hat to help the anti-Nazi resistance (a story from Pentimento that was made into the movie Julia) or merely inserted herself into the life story of Muriel Gardiner Buttinger -- a possibility discussed in this fascinating post.  To my knowledge, no reader ever sued Hellman, although her veracity was very much at issue in the long-running libel case she brought against the novelist Mary McCarthy.

2.  Of course, anyone can sue anybody for just about anything under our legal system, but, while there are doubtless factual distortions in many memoirs and autobiographies, lawsuits by readers against authors for alleged false accounts of their own lives are rare.  (Only two prior to 2011-- according to this Boston Globe blog post.) Of course,when you make false (and defamatory) statements about others, you are cruising for a libel lawsuit (as discussed in these past RightsofWriters posts), but only a very few lawsuits on behalf of readers against memoirists or autobiographers for lying about themselves have been "successful" (by some definition of success) for the plaintiff readers -- or even for their lawyers.  Two reasons: (a) it is difficult to articulate how a false memoir materially "damages" a reader; and (b) ordinarily no one reader has a financial stake exceeding the cost of the book and therefore has no incentive to sue.  Indeed, I do not know of a single false memoirs case, brought on behalf of readers, that has resulted in a judgment on the merits.  (If you know of one, please email me.)  The cases I've read about have all been settled (like most civil lawsuits) or eventually withdrawn.  So it remains to be seen whether a case of this kind is ultimately winnable on the law.

3.  Because an individual reader doesn't have a sufficient economic incentive to file a lawsuit, the legal threat to the faux memoirist generally takes the form of a class action lawsuit -- i.e., lawyers who are seeking to represent the interests of an entire class of readers who, like a few specifically named plaintiffs, were duped into buying a work that was fictionalized in some respects when they believed, at the time of purchase, that it was true.  As reported in this Wall Street Journal article, there has been a proliferation of putative class actions against authors this year: i.e., a total of three lawsuits -- two of which involved the same book.  (I use the term "putative" because a case is not a full-fledged class action unless and until a judge "certifies" the class.)

4.  From the lawyers' point of view, the most successful "duped readers" lawsuit arose from James Frey's memoir of alcohol and drug addiction, A Million Little Pieces.  Frey famously admitted to Oprah that he had greatly exaggerated details of his personal experience, claiming, for example, to have been jailed for 87 days, when, in fact, he had been detained by police for only a few hours.  Thirteen class action lawsuits were filed against Frey and his publisher, Random House; the cases were eventually consolidated and settled in 2007 with the payment of $738,000 in attorneys' fees, and the promise of a refund of the book price to any reader who claimed one.  But how much do readers really care about false memoir kerfuffles?  As reported by DearAuthor.com only 1,729 readers bothered to submit a refund claim, despite the fact that Random House spent $432,000 advertising and administering the settlement.  Frey's book sold over 5,000,000 copies, so 1,729 claims represents a little more than 3/100ths of 1 percent of total readers.  Not exactly a grassroots readers' revolt.  For an argument that Frey's and Random House's conduct should not have resulted in any legal liability (because Frey's book served its intended purpose -- providing enjoyable reading), see "A Million Little Maybes," by Samantha Katze.

5. Earlier this year, author Jon Krakauer and 60 Minutes challenged the truthfulness of key anecdotes in the book Three Cups of Tea by Greg Mortenson.  Although Mortenson has publicly defended the book as a compressed version of actual events, two would-be class action lawsuits were filed against him.  Here is the complaint in an Illinois action in which a plaintiff-reader alleged violations of a consumer deception statute, breach of contract, and unjust enrichment.  The Illinois case was later withdrawn and the claim consolidated with another lawsuit in Montana (complaint here) which made certain additional claims that Mortenson's alleged falsehoods duped some people into making contributions to a charity Mortenson helped to promote.  Mortenseon recently moved to dismiss the complaint (AP's description here), and there may soon be more news about the case.

6.  Also this year, a would-be class action was filed against former President Jimmy Carter in connection with his memoir/history/polemic Palestine: Peace Not Apartheit.  The legal claims resembled those in the Frey lawsuit: breach of contract, unjust enrichment, and violation of a consumer fraud statute, with the addition of common law claims for fraud and negligent misrepresentation.  Copy of the complaint here.  Most of the statements about which the plaintiffs complained concern alleged misdescriptions of events in the Middle East, not of Carter's own life, and, as such, raise a set of concerns that are different from Frey's book, including the constitutional protections for political opinion.   Mere factual mistakes seldom form the basis for successful claims against writers or publishers, as discussed in a prior post: "Can I Be Liable for Publishing Mistaken Information?"  Plaintiffs sought to overcome this obstacle by alleging that President Carter had intentionally misstated the facts.  Last I heard, however, plaintiffs had voluntarily dismissed the complaint.  

7.  Lawyer and writer Helen Gunnarson (who tweets as @HelenGunnar) inspired this meditation on faux memoirs, contacting me a few weeks ago about an article she was writing on the Mortenson case.  As I told Helen, and as you have probably inferred, I am skeptical about the wisdom of imposing legal liability on writers for lying to their readers.  Don't get me wrong.  I don't think memoirists should just make things up, without at least clearly disclosing their modi operandi to their readers.  However, I believe fabrication is primarily an ethical issue, not one for the courts.  I largely share the views expressed in this Los Angeles Times post that lawsuits against memoirists are "silly."


8.  Helen told me an anecdote about memoirist Mary Karr deciding not to write about an event that she vividly recalled because friends convinced her it could not have happened the way she remembered it.  As Karr has flatly said, “I try not to write anything not true.” That worthy sentiment strikes me as the ethical pole star of memoir writing, but as memoirist William Loizeaux observes in this article, "remembering is always a tricky business."  Loizeaux insists that "The line that should be most closely tended is the line of trust between writer and reader."  The farther that the memoirist departs from factual certainty, the greater the ethical duty on the memoirist to signal clearly to his readers that they are entering the realm of speculation or invention.  Loizeaux again:

when a memoirist writes, "we must have wept, being a family of inveterate weepers," we understand that a lachrymose scene to follow is informed imagination. These words are from Mary Karr's Liars' Club, which attempts to establish trust by letting the reader know how much truth is being told.

9.  Good intentions aside, I assume that virtually all memoirs and autobiographies are littered with falsehoods.  Most inaccuracies are probably inadvertent, arising from the fallibilities of human perception and memory.  But some varieties of falsehood are, I suggest, inherent in the modern craft of memoir.  As a lawyer, I am repeatedly struck by the inability of witnesses, who are sworn to tell the truth and who believe they are telling the truth, to accurately repeat conversations that occurred only a few months before their testimony.  As a result, I have no faith whatsoever that any dialogue recorded in a memoir is “true” in any literal sense.  Similarly, in light of the repeatedly demonstrated fallibility of eyewitness testimony, there is little reason to believe that the proliferation of physical details that give memoir its verisimilitude are genuine.  The dialogue and details in a memoir are, at best, psychological truths.  As one blogger explains, there are at least three conflicting varieties of truth competing for the allegiance of the memoirist ("the facts as they are, the facts as I see them, and the facts as I feel them"); he goes on to suggest that James Frey, Greg Mortensen, and David Oliver Relin (Mortenson's co-author) were only trying "to get us to feel their emotional truths a little too much.” Well maybe.  I am more inclined to agree with Brian Hale, a professor at Ohio State University, who told The Christian Scientist Monitor:  "The memoir is a strange kind of performance.  It's halfway between fiction and testimony . . . Anybody in his right mind knows that a memoir is unreliable." Yes, there is a difference between reporting mistaken memories about our lives and willfully lying about our lives, but do we really want legal liability to readers to turn on that difference?  Should Joan Lowell have been liable to her readers for her tall tales?  I don't think so. 

10.  Again, this is not to say that lying in memoirs is -- or should be -- free of legal consequences. For example, if you lie in your memoirs, you are likely in breach of a warranty in your publishing agreement.  The standard Simon & Schuster contract contains a promise that "if the [author's work] is not a work of fiction, all statements in the [author's work] asserted as facts are true or based upon reasonable research for accuracy." A breach of that warranty may not give the publisher a direct claim against its author for lying, but it does give the publisher the right to have the author indemnify the publisher for all losses it sustains as a result of claims against it arising from the authors' lies.  If an author breaches her promise to tell the truth, and the publisher is damaged as a result (e.g., is sued and/or obliged to provide refunds), the warranty may oblige the author to cover the publisher’s liability and attorneys’ fees.  I do not know whether Random House sought repayment from James Frey in connection with the class action settlement payments or the cost of the defending the thirteen lawsuits, but a lying memoirist is certainly playing with fire.  Just ask J.T. LeRoy a/k/a Laura Albert, who was ordered to pay $116,000 in damages and $350,000 in attorneys' fees for allegedly defrauding a film production company by selling the screen rights to LeRoy's autobiography that turned out to be fiction.

11.  Finally, you might want to take a look at the work of Ben Yagoda (author of Memoir: A History) and Dan DeLorenzo. They have have devised this amusing rating system for the "truthiness" (to adopt Stephen Colbert's great coined term) of memoirs.  Saint Augustine comes out with high ratings, Margaret Jones/Seltzer, not so high.

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.

Can You Tell Your Own True Story Even If It Impinges on the Privacy of Your Lovers, Friends, and Family?

Autobiographers and memoirists sometimes face thorny legal issues when they write about aspects of their own lives that are inseparably intertwined with the private lives of others.  Can a woman truthfully describe the intimate details of her sex life if, in doing so, she identifies her partner and aspects of his life (adultery, promiscuity, kinkiness?) he would prefer to keep forever secret?  Can a gay man write about his HIV-positive status if, in doing so, he effectively discloses that his partner is also infected with the virus?  The answer is an unsatisfying: "Sometimes -- provided it is done the right way."

Public disclosure of private facts is an aspect of the right of privacy that is actionable in some (but not all) states.  While the prerequisites vary somewhat from jurisdiction to jurisdiction, a plaintiff typically must prove:

(1) publicity was given to matters concerning the plaintiff's private life;

(2) the matters made public would be highly offensive to a reasonable person of ordinary sensibilities; and

(3) the matters publicized were not newsworthy, i.e., not of legitimate public interest.

The third element is often crucial to the defense of invasion of privacy lawsuits.  Fortunately, the mainstream media have had considerable success in persuading courts to find that their disclosures of otherwise private facts are protected because they shed light on important aspects of the human condition.  The courts are especially likely to cut authors and publishers some slack in accounts that touch on the private lives of public figures.  But the courts have also often found that even disclosures of private facts about private figures qualify as newsworthy.   Sometimes, however, newsworthiness is a close call.  And, as University of Georgia law professor Sonja West explains in this law review article entitled The Story of Me, the courts' focus on whether a disclosure of private facts is "newsworthy" is arguably misguided.

Anonsen v. Donahue is one of a few interesting cases that have taken a different approach.  The dispute arose out of an appearance by Miriam Booher on The Phil Donahue Show in January 1989.  During the course of the program, Booher disclosed that her husband had raped and impregnated Nancy Anonsen, her daughter from a past marriage, when Anonsen was 11 years old.   Booher and her husband then adopted the baby boy born from the incestuous relationship.  Prior to Booher's appearance on the show, the family had never reported the crime to the authorities or publicly disclosed the events.

As touched on in a prior post, a highly-charged statement of this sort potentially implicates two separate, but interrelated areas of the law.  If the statement was false, Booher would have run the risk of a libel suit from her husband.  On the other hand, if the statement was true, she ran the risk of a claim for public disclosure of private facts.

Anonsen and her son acknowledged that the statement was true; they sued their mother/grandmother, Phil Donahue, and his production company for public disclosure of private facts. Anonsen and her son argued that, even though Booher did not mention their names on the show, by disclosing her own true name to a national television audience, Booher had inevitably revealed the family's nightmarish private tragedy to everyone who knew Booher's relationship to them.

Analyzing the three elements of the claim under Texas law, the court had no problem concluding that the crimes of incest and rape are newsworthy matters of legitimate public interest, but, in the judge's view, that did not necessarily mean that the (albeit indirect) disclosure of the victims' identities was a matter of public interest.  But, importantly, the court reasoned:

We do not believe that the issue of newsworthiness of the parties' identities . . . is relevant to the ultimate inquiry before us: whether Booher had the right to reveal her own identity.

Ultimately, the court concluded that:

to allow a cause of action based upon Booher's truthful and undisguised account of her own and her family's experience is inconsistent with the first amendment. 

A Massachusetts court adopted the Anonsen approach, at least in part, in Bonome v. Kaysen.  Susana Kaysen, the author of Girl Interrupted, also wrote a memoir about her post-teen life entitled The Camera My Mother Gave Me in which she recounted in intimate detail her then-live-in boyfriend's alleged abusive response to her refusal to have sex with him when she was suffering from a painful medical condition.  Although he was not named in the book, the boyfriend sued for invasion of privacy, arguing that many people knew that he had been Kaysen's companion and understood that Kaysen was referring to him.  The judge dismissed the claim, finding that the disclosures were a matter of legitimate public concern.  But he also went on to say that:

In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story-- which inextricably involves Bonome in an intimate way . . . . it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this  case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident thereto.

I cannot overemphasize that publishing private facts about others carries significant legal risks and must be done cautiously, if at all.  Not only may there be a question as to whether another person's story is integral to your own -- an essential aspect of the courts' reasoning in Anonsen and Kaysen.  But there is always the risk that the "dislosee" will contend that the disclosures about him/her are not only intimate, but false, as in this spicy yet disturbing case involving the blogger Washingtonienne.

If you are publishing a tell-all memoir with a major publishing house or a tell-all article with a major magazine, chances are that somewhere along the line you will get advice from an in-house lawyer about how to reduce the legal risks.  You can change names, change locations, change all sorts of identifying details, while keeping the core truth of your story intact. All of these precautions help to make the disclosee less identifiable.  But all of these precautions cannot provide an absolute guarantee that a disclosee will not be able to argue successfully that he or she is inevitably identifiable by some people who new the author and her relationship to the disclosee.

The greatest risks are likely incurred by bloggers, Facebook posters, and other online self-publishers who nonchalantly publish the intimate details of their personal lives and those of their lovers and friends, without the benefit of any legal advice.  Perhaps like Washingtonienne they take at least some precautions to conceal the identities of those they portray.  But perhaps, like Washingtonienne's embarrassed lover, their lovers and friends will feel that not enough has been done to safeguard their secrets and protect their privacy.  And it may be far more difficult for a private blogger (in contrast to a well-known author, like Kaysen, published by a powerful publisher, like Random House) to persuade a court that the private facts disclosed are matters of genuine public concern.  If the court believes they are not, then the blogger's last, best hope is that the court may conclude, as in Anonsen and Kaysen, that an autobiographer has "a right to disclose her own intimate affairs."  It's an appealing legal principle, a potentially important principle, but not one you should count on.

Postscript:  this post is not, by any means, intended to discourage memoirists from practicing their craft.  Remember, to be actionable, the disclosure must be of private facts that would be highly offensive to a reasonable person.  Most memoirs don't venture into that territory.  Moreover, book editors often tell their authors to write the truth and let the in-house lawyers figure out how the truth -- or at least most of it -- can be safely published.

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.