In 1979, Penthouse Magazine carried a humor piece about a Miss Wyoming whose talent performance involved a sex act that caused a man’s entire body to levitate off the floor, all while she twirled her baton.
The real Miss Wyoming, Kimerli Pring, sued, claiming the article was defamatory and had made her life miserable. She felt raped by men’s eyes, and she lost students from her baton twirling classes. (I am not making this up.)
A local jury awarded her $26,500,000. Her lawyer boasted that publishers like Penthouse “can no longer drape themselves in the American flag and scream freedom of the press, while smearing little helpless people for profit.”
However, on appeal, the higher court reversed the ruling. It determined the article was not defamatory. Really? Wasn’t the article untrue and didn’t poor Kimerli suffer?
Let’s take a look at the elements of defamation for the answer.
To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (the target) must prove all of the following:
False Statement of Fact:
If a statement is true, then it is not defamatory no matter how offensive or embarrassing. (Although the writer may have violated someone’s right of privacy, a topic I will discuss in my next post.)
Opinions are not defamatory, not matter how insulting, as long as they don’t sound like statements of fact. Certain statements are considered opinions because of the context, such as Yelp and Amazon reviews. However, courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The question is whether the statement can be proven objectively. The more precise a statement, the more likely it will be considered a fact. Better to say “Joe gives me the creeps” or “I would never let him babysit my children.”
Parody is not defamatory as long as the absurdity is so clear no reasonable person would consider the statements to be true. That is the key to the Pring reversal. The appeals court explained that since it was impossible for Miss Wyoming’s sexual act to cause levitation, the Penthouse article cannot be seen as a defamatory statement of facts.
Of an Identifiable Person or Organization:
A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target.
For example, Andrew Greene is suing Paramount Pictures for $25,000,000 claiming he was defamed by the character “Rugrat” Kiskoff in the movie, The Wolf of Wall Street. Greene claims he is easily identifiable because Rugrat, like Greene, wears a toupee. In fact, Greene seems particularly offended that the toupee is “accentuated and mocked in an egregiously offensive manner.”
Frankly, the producers were asking for trouble by using something as distinctive as a toupee, but a toupee, particularly a bad one, must have been too funny to resist.
Typically, the target must be a living person, but companies have sued for defamation, particularly when the damaging statement is about food. Many states have passed “Ag-Gag laws” to protect local farming interests. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)
That is Published:
Published does not mean widely distributed. Only one person (other than the target) must read or hear the statement. Nowadays a single tweet can be heard around the world, so proving publication is easy.
Causes Reputational Harm:
The false statement must be more than offensive, insulting, or embarrassing. Portraying someone as a jerk of a boyfriend, or an insulting mother-in-law, or an obnoxious boss is not defamation. The statement must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”
Certain false statements are considered defamatory automatically, namely allegations of crimes, loathsome disease, promiscuity, corruption, and professional incompetence.
You never know what some people consider harmful. Donald Trump sued a publisher for underestimating his wealth. In the Greene case, the plaintiff was an executive of what turned out to be a criminal enterprise. I don’t see how his professional reputation could get much worse.
Made With Actual Malice or Negligence:
If the target is a public official or a public figure, then the target must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is a private individual, courts generally require some fault or negligence by the defendant.
Who qualifies as a public figure is a murky area, but I suspect now that anyone can choose to put themselves in the social media spotlight, the definition of public figure will expand.
In this post, I am discussing United States law. The laws of other countries are more favorable to targets, and you could get sued in France for a blog written in California. However, the Speech Act of 2010 helps to protect U.S. writers by prohibiting U.S. courts from recognizing or enforcing foreign judgments for defamation that are inconsistent with the First Amendment.
What’s a writer to do?
Considering the hundreds of thousands of books published each year, relatively few defamation suits are actually filed. Most targets don’t sue because they do not want to call attention to a matter best forgotten. And defamation is difficult to prove.
My theory about defamation suits (in fact, any lawsuit) is your chances of getting sued are a factor of money times emotion.
- If the target, publisher, or author has deep pockets, or the matter involves a lot of money, then the risk of a lawsuit increases.
- If the target is deeply and personally offended, then the risk increases even if no money is involved.
- The combination of big money and inflammatory material is particularly perilous.
My advice: if you are going after Big Oil, Big Med, Big Food, Big Religion, City Hall, Wall Street or Mr and Ms Big, don’t go it alone. The Bigs may not care if they have a losing case. They often file SLAPP lawsuits to intimidate critics and overwhelm them with legal bills. Get a lawyer on your team early in the process or align yourself with a public interest group such as Electronic Frontier Foundation before you publish. Also look into media perils insurance.
For everyone else, here’s some general advice.
- Resist the temptation to use the bad toupee! If you base a fictional character on a living person, change physical details and life histories so the person is not recognizable. Don’t take the short-cut of using a highly identifiable flaw or quirk. The more villainous the character, the more changes you should make.
- Don’t rush to release a getting-even book. Do you secretly want your ex-spouse, boss, parent or mother-in-law to recognize themselves in your work? Will changing one letter in a name protect you? Probably not. If you are working on a getting-even book, write the manuscript with passion, then put it aside for months, even years. With time and perspective, you will be better able to mask your characters and make the story more universal (and better).
- If you want to skewer someone, use parody. But don’t go half-way. Your humor should be so obvious that no one can reasonably read it as a statement of fact.
- Add the standard disclaimer to fiction pieces. “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”
- If you are fictionalizing true events by adding scenes and dialogue, take a look at my last post about the right of publicity. Make sure you add a disclaimer such as “This work is based upon real events. Certain events, dialogue and characters were created for the purposes of fictionalization.”
- Don’t use labels such as crook, cheat, pervert, or corrupt. Stick to verifiable facts and your personal, emotional responses. Remember the writing adage, show, don’t tell.
- Be cautious about saying something like “don’t do business with XYZ company.” Tell the story of your experience with the company. Your readers will get the message.
- Retain records to support your statements. Hyperlink to your sources.
- When speculating, be clear you are taking a guess. State your opinions as opinions and gut feelings, not as facts.
- Rely on publicly-disclosed information, such as court documents and news reports. Court filings are a rich source of juicy information.
For all writers:
- When in doubt whether a statement might be defamatory, consult a publishing or First Amendment attorney. You will sleep better.
- If accused of a defamatory statement, consider publishing a retraction.
- Always reach for the truth when writing—it’s the best defense.
Photo: bigstockphoto.com. Amazon links contain my affiliate code.