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.
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.
A valuable column, Chris! I was a marketing director for much of my career, and was well-schooled in the dos and don'ts for that job. Basically, as a fiction writer, I was told (by my corporate lawyers) to always ask for permission to use a product name in a book. Usually they are happy to let you do so, as long as the product isn't maligned in the book, in some way. I usually find it best to change one letter, to be absolutely safe. Melodie
ReplyDeleteI think changing place names of locations, restuarants and bars is actually more engaging. I think people in the know like to be, well, in the know. I once had a guy publish an article where he went around the Hamptons and identified what he thought were my fictionalized spots. He was mostly right, though showed some disappointment when some locations were completely made up. I also avoid brand names, but you're pretty safe with things like cars and motorcycles.
DeleteI change names of locations, etc., and have a lot of fun doing it. And I know that you can say anything in fiction just from Carl Hiaasen's works alone.
ReplyDeleteWhat I want is for political speech to have the LOWEST bar for lies, libel, etc.
I sure agree with that last point, though it's a slippery slope. And if wasn't for lyin', we wouldn't have no politicians at all.
ReplyDeleteI certainly agree with that last point, though it's a slippery slope. And if wasn't for lyin', we wouldn't have no politicians at all.
ReplyDeleteI had to take a couple of courses of (UCC) law, 101 and 201 simultaneously, which surprisingly I liked but have largely forgotten, torts, frauds, bailment, etc. The lectures often drifted into other realms.
ReplyDeleteOne item th at arose was libel and slander. You mentioned polititians lying, but didn't discuss speech about polititians. Discussions regarding public figures are treated differently thank talk about public figures. We the public (and press) can talk and write about politicians and celebrities more freely than us regular 'civilians'.
A certain polititian has gone off the rails using lawsuits as a weapon, but generally, public figures are restrained from dragging citizen reporters and others into court. The last polititian to sue the press was Barry Goldwater, and that did not work out well.
Another factor is 'actual malice'. I don't recall details, but the gist is that comments don't have to be factual unless malice is involved.
Note that the UK flips this around and appears to offer celebrities protections not available to the public.
I forgot to mention I very much enjoyed the artice!
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