Arts and First Amendment
Libel in fiction
David L. Hudson Jr.
First Amendment Scholar
Wednesday, January 19, 2005
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....
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.”...
“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...
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.”...
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...
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. “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.”