Stand up for your rights.

There’s no topic more likely to enflame people than the First Amendment.  That’s because it protects free speech, and thus the freedom to write what you wish. But there are limits that have been imposed by law over the years, and not everyone agrees on what those limits should be. 

            A classic example is the freedom to yell fire in a crowded theater. That’s just the beginning.

            I’m not going to get into all the exceptions, because it would take up the whole essay, but suffice it to say there’s a lot of speech, and written expression, that’s not protected.   Most people would agree that these limits are necessary and common sense, and thus we have prohibitions against slander and libel, hate speech and incitements to violence, though even those charges have to be proven in court, and not easily. 

            I worked in advertising and was once informed by a commercial speech attorney (the most prominent in the country, I’ll have you know) that the truth was an absolute defense against a libel charge.  Consequently, I was able to use the name of a branded product in a print ad because I simply stated something about the product the company itself had published (the list price of a new Porsche).  There was no defamation or disparagement.  Just the facts, ma’am.

            He also told me on another occasion that I could use a photo my wife took of a house, without permission, as part of a book cover design.  As long as I didn’t make a claim that the owners were doing something illegal I couldn’t prove, like running meth out the backdoor, I could do it, since it’s not against the law to use a photo of a house.

            My lawyer friend makes clear that political speech and commercial speech are different in the eyes of the law, and commercial speech is where most rules against slander and libel are enforced.

            Political speech has a much higher bar, which is why Trump and his sycophants can lie through their teeth every second of every day and be immune from prosecution, but copywriters and publishers have to be more careful.

            This is why I’ve always changed the names of restaurants and retail stores easily identified by people who live in the Hamptons, where most of my books are set.  And never use the real names of characters I’ve lifted directly from life.

            The likelihood of a lawsuit is beyond distant,but why take the chance.  No publisher wants that kind of exposure and I don’t blame them. When I worked as an editor, I made this point to a writer who insisted on naming an actual company, unfavorably, in his novel.  We said sorry, we won’t publish you.

            As a fiction writer, the possibility of getting into legal trouble is about as remote as it can get.  Your publisher will know if you’ve drifted into dangerous territory and will advise you accordingly.

            If you’re self-published, I’d run your book by someone like my lawyer friend.  The odds are very low you’ll have to make changes, but they’re not zero.

            In this political environment, legal dangers have increased, for sure. Especially for non-fiction writers.  Ironically, fiction writers can portray a public figure committing all sorts of venal and carnal sins, and be fine as long as his or her identity is disguised behind a change of name and light variation in circumstances. But if you’re representing this as truth in nonfiction, and you can’t prove it, be careful.

        

            Hysteria has begun to set in within the arts community, and I don’t blame anyone.  There are real threats to our freedom of expression. But as for now, the First Amendment is holding, and we have a responsibility to exercise it with abandon. The worst thing would be to self-censure for no good reason because of reckless threats from the benighted and dictatorial.

            I’m not a lawyer. I might be wrong about some of the things I’ve written here. I’m just sharing my experience.  Yours might be different.  So please, consult an actual attorney if you have any concerns at all about your work.