By David L. Hudson Jr., First Amendment Scholar, and Andrew Gargano, First Amendment Center Intern
Updated: November 29, 2017
We all know instinctively what libel or defamation is — making false statements of fact that harm another’s reputation. For example, if I falsely write that John Smith committed a crime, then I have libeled him. I have harmed his reputation by accusing him of doing something bad that he didn’t do.
However, what if I write a fictional story from my own experiences about a student who feels harassed by an overbearing teacher named Mrs. Jones? The inspiration for my creative writing comes from my own experiences in dealing with an actual teacher named Mrs. Smith. In my story, I ascribe many unflattering attributes to my character-teacher Mrs. Jones. Could Mrs. Smith (assuming she’s still living) sue me for defamation, alleging that she has been defamed by my depictions of my fictional Mrs. Jones? Can she sue me even if the work has a disclaimer, clearly stating the work is fiction?
The surprising answer is maybe. Sometimes, creators of fictional works are sued by persons who claim that certain characters in the stories refer to them and defame them. For example, the publisher of the best-selling novel Primary Colors, the producer of the motion picture “Hardball” and the producers of the movie “Sandlot” have all been sued for defamation.
It might seem counterintuitive that a person could be sued for fiction. Julie Hilden, an attorney and author who writes for Findlaw.com, explains in a column: “First, fiction does not make a ‘statement’ in the sense that nonfiction does. A ‘statement’ makes an assertion about the real world, whereas fiction describes a different world that does not really exist.”
“It shocks people when you create something whole cloth out of your brain, out of your imagination, that you can be sued,” says Chicago-based attorney Debbie Berman, who defended the company that produced “Hardball.” “It can create a chilling effect on free expression.
“If you have to go through very expensive discovery and the case cannot be dealt with by a motion to dismiss, then you’re talking about a lot of money and expense,” Berman said. “It certainly could have a chilling effect. Publishers may think twice about certain projects.”
Chris Finan, president of the American Booksellers Foundation for Free Expression, says: “Unless there are very careful rules, there is a danger of a chilling effect that publishers will not feel free to publish works in which characters bear even the remotest similarity to real-life people.” Judith Platt, former director of the Freedom to Read program at the Association of American Publishers, agrees: “These libel-by-fiction suits definitely chill expression by encouraging self-censorship.”
Judge Robert D. Sack of the 2nd U.S. Circuit Court of Appeals, author of the defamation treatise, Sack on Defamation: Libel, Slander and Related Problems, describes when a libel suit might result from a work of fiction:
“Where the defendant invents defamatory dialogue or other defamatory details in what purports to be nonfiction, uses actual people as fictional characters, or bases fictional characters on living persons but fails sufficiently to disguise the characters, so that the fictional characters are understood to be ‘of and concerning’ their living models, liability for libel may result.”
Even if the work contains a disclaimer stating that it’s fictional, a libel claim can still arise. However, plaintiffs must clear certain hurdles. In order to state an actionable claim for defamation, a plaintiff must show: publication, defamatory meaning, false statement, identification and damages. In libel suits arising out of fiction, arguably the toughest hurdle for plaintiffs to clear is the identification, or “it’s me” requirement. The plaintiff must establish that it is the plaintiff being defamed. In libel-law lingo, this is called the “of and concerning” requirement. Harvard law professor Frederick Schauer has called the “of and concerning” requirement “the centerpiece of litigation involving fiction.”
This does not mean that the entire world must understand that the fictional character identifies the plaintiff. It doesn’t even mean that the fictional character must have the same name as the plaintiff. What matters is whether people who know the plaintiff can understand that the character was meant to depict the plaintiff. “It is not necessary that all the world should understand the libel,” a New York court wrote in 1836. “It is sufficient if those who knew the plaintiff can make out that he is the person meant.”
But the fictional character and the plaintiff must be very close in description. In Carter-Clark v. Random House, Inc., a New York trial court rejected a libel plaintiff’s defamation claim against the publisher and author of Primary Colors, a best-selling novel written by political writer Joe Klein about a political candidate who has several extramarital affairs. The court wrote: “For a fictional character to constitute actionable defamation, the description of the fictional character must be so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two. Superficial similarities are insufficient.”
In Carter-Clark, the court focused on the following differences between the plaintiff and the fictional character: different names, different jobs and dissimilar physical appearances.
However, sometimes the depiction of a character too closely resembles a real person. A 1991 short story published in Seventeen magazine referred to a teenage character named “Bryson” as a “slut.” Unfortunately for the publisher a former high school classmate of the author with the last name of Bryson sued the magazine for defamation. “The fact that the author used the plaintiff’s actual name makes it reasonable that third persons would interpret the story as referring to the plaintiff despite the fictional label,” the Supreme Court of Illinois wrote in Bryson v. News America Publications, Inc.
A similar case occurred in 2010, when a New York appellate court ruled that the similarities between a “Law and Order” character and a lawyer were close enough to allow a libel in fiction lawsuit to proceed. The character in the episode featured the same first name and ethnicity as the lawyer, but was portrayed as corrupt. In Batra v. Wolf, the court concluded that “there is a reasonable likelihood that the ordinary viewer, unacquainted with Batra personally, could understand [the character] Patel’s corruption to be the truth about Batra.”
As veteran First Amendment and libel law attorney Alan Kaufman wrote in a 2001 article, “Defining Libel in Fiction”: “Changes in name, physical description, geographical setting, job function or title, and real events are all ways to make an individual sufficiently unidentifiable.” However, that may not always be the case.
In some cases, a plaintiff can win a lawsuit even if her name is not mentioned. The 2003 novel The Red Hat Club told the tale of five middle-aged women, who were based on real people that the author, Haywood Smith, had encountered. Vickie Stewart brought suit after noticing that one character shared many similarities with her, including where she lived, her marriages, her divorce, her inability to collect a divorce settlement, and her placing of ads to find her ex-husband in order to receive the settlement money. However, the character also featured a number of differences with Stewart, such as being an alcoholic and engaging in promiscuity, which Stewart felt had painted her in a false light. In 2008, the Georgia Court of Appeals in Smith v. Stewart found that a jury issue existed as to whether the character was a portrayal of Stewart. In 2009, a jury awarded Stewart damages.
The irony of such suits is that the libel-in-fiction plaintiff is claiming both that they are very similar and very different from the fictional characters. As a New York trial court ruled in dismissing a libel-in-fiction claim based on writings in the Terry McMillan novel Disappearing Acts: “Further complicating any consideration of a libel-in-fiction claim is the paradox produced by the plaintiff asserting an identification with the fictional character yet denying that significant aspects of such character are true.” In Welch v. Penguin Books USA, Inc., the court explained that the “plaintiff’s case thus becomes ‘It’s me, but it couldn’t be me.’”
Another hurdle facing plaintiffs making libel-in-fiction claims is that writers often use satire to lampoon actual public officials. In these cases, the plaintiffs must show that a reasonable reader would interpret the writing as making actual statements of fact about the plaintiff rather than as satire or parody.
A prime example is the Texas Supreme Court’s 2004 decision in New Times, Inc. v. Isaacks. The case concerned an article, “Stop the Madness,” published in the Dallas Observer, a self-described alternative newsweekly. The article lampooned Denton County District Attorney Bruce Isaacks and Denton County Juvenile Court Judge Darlene Whitten for prosecuting and imprisoning a 6-year-old girl for writing a book report about cannibalism, fanaticism and disorderly conduct.
Isaacks and Whitten did not punish any 6-year-old girl. Rather, the article lampooned the plaintiffs for their role in punishing Christopher Beamon, a 13-year-old student who was placed in juvenile detention for several days for writing a Halloween essay that depicted the shooting of a teacher and classmates.
Isaacks and Whitten sued, claiming they were defamed by the article. Both a trial court and an intermediate appeals court refused to dismiss the lawsuit. The appeals court determined that “satire or parody that conveys a substantially false and defamatory impression is not protected under the First Amendment as mere opinion or rhetorical hyperbole, but instead is subject to scrutiny as to whether it makes a statement of fact under defamation case law.”
On appeal, the Texas Supreme Court reversed in September 2004, finding that “the test is whether the publication could be reasonably understood as describing actual facts.”
The state high court reasoned that the article contained enough exaggerations and distortions that a hypothetical reasonable reader would know that the article was satire. The court noted that the article referred to a religious group as GOOF — God-Fearing Opponents of Freedom. The article also quoted the fictional 6-year-old as saying: “It’s bad enough people think like Salinger and Twain are dangerous but Sendak? Give me a break, for Christ’s sake. Excuse my French.”
The court concluded that these “obvious clues” compelled it to rule that the article could not be interpreted reasonably as stating actual facts about the plaintiffs.
Other tort theories
Libel experts point out that because of the high hurdles facing plaintiffs in defamation law, many plaintiffs sue under other tort theories.
Judith Platt of the Association of American Publishers says: “What we have seen recently is a definite trend for plaintiffs to sue under other tort theories, such as false light (a form of invasion of privacy) and misappropriation, rather than libel. These plaintiffs are attempting to make an end-run around the First Amendment and the high bar it sets for plaintiffs in libel actions.”
For instance, several people in Florida sued the producers of the movie “The Perfect Storm” in 2000, claiming commercial misappropriation and invasion of privacy. The plaintiffs alleged in Tyne v. Time Warner Entertainment Company that the defendants used their names and likenesses in the movie without obtaining proper authorization. A federal district court dismissed the lawsuit, finding the movie protected by the First Amendment. However, a federal appeals court in 2003 reinstated part of the suit and asked the Florida Supreme Court to answer a question of about the state’s commercial-misappropriation law. Upon the Florida Supreme Court’s guidance, the Eleventh Circuit in 2005 applied the proper statutory definition of “commercial purpose” and found that the plaintiffs’ claims had been properly dismissed.
It may seem odd that a plaintiff can sue for defamation in fiction because defamation requires the making of false statements of facts about a real person. By its very nature, fiction implies that something is at least partially in someone’s imagination or a creation from someone’s mind.
Libel-in-fiction plaintiffs face some tough hurdles to clear in advancing their claims. They must establish that the works of fiction were “of and concerning” or about them. Sometimes meeting this requirement can be tough, particularly when there are significant differences between a plaintiff and a character in an expressive work.
Another hurdle in some cases is that the publisher or author must be understood as making actual statements of fact about the plaintiff. In cases of satire or parody, a writer may intentionally exaggerate or distort the truth to make a point. A court may determine that the expressive work is not defamatory because it cannot reasonably be understood as stating actual facts about the plaintiff.
Despite these protections, creators of expressive work sometimes face expensive lawsuits. A current libel by fiction lawsuit is still pending over the popular 2013 film “Wolf of Wall Street.”
“It does seem that there are more of these types of suits now,” Berman says. “Or perhaps it is just that the media covers them more and gives them a higher profile.”