Oops, Maybe I Shouldn't Have Written That: A Modest Guide to Libel and Biography
Biographers who keep up with the news these days may have cause to be nervous should they choose a famous living subject. Donald Trump, upset that a biography claimed he is worth millions, not billions, is suing for libel in New Jersey. Threats of a lawsuit kept Andrew Morton's biography of actor Tom Cruise from the shelves of British bookstores. And, though not quite a biographer, one writer is being sued by her mother.
For advice, TBC turned to Jan F. Constantine
, general counsel for the Authors Guild and an author herself. We also combed through several websites and found some useful resources, listed at the end of the article. While we should quickly point out that what we present here is not legal advice (i.e., don't sue us), here are some sound rules of thumb:
To begin with, it goes without saying that every nation has different libel laws. For the most part, you are best off publishing a biography in the United States. In the case of Morton's biography of Cruise, St. Martin's did well with it in the United States but chose not to make the book available in United Kingdom or in any of its Commonwealth entities out of fear of the stricter laws.
Under libel laws in the United States, if the subject is a public figure, as is likely in biographical writing, then the burden of proof falls on the aggrieved party. He or she must prove actual malice, that what you wrote was false and published with a reckless disregard for the truth.
British libel law, however, does not require the harder-to-prove standard of "actual malice" and "reckless disregard." As a result, plaintiffs from around the world rush to British courts to engage in what has become known as "libel tourism."
In a recent case, twenty-three copies of an American author's book were sold in Britain online, though the book had not been published in Britain. The author was then sued. She chose not to respond, and a default judgment was entered against her. As a result the victor is now free to use U.S. courts to collect his money.
"'Libel tourism' is a threat to America's robust free-speech traditions, which protect authors here," wrote Adam Cohen in the New York Times
. "If foreign libel judgments can be enforced in American courts, there will be a 'race to the bottom'; writers will only have as much protection as the least pro-free-speech nations allow."
New York passed a law to ward off such collection suits, and Congress is considering a similar one. The moves are intended to defend the more favorable conditions for writers in the United States. In short, unless a plaintiff can prove you intentionally disseminated a falsity, knowing it was untrue, you are likely to prevail in a U.S. libel proceeding. That, however, does not mean you won't face a day in court. "Just because you say something and you know it's correct doesn't mean you won't be sued," Constantine said.
Prominent figures sometimes sue, even when the odds are against them, as a chilling method. British media tycoon Robert Maxwell sued so frequently that many thought twice before writing about him.
To minimize the risk, suggests the Authors Guild attorney, ask yourself a question when writing about your subject: "Would you want that said about you or would you want that to be said on the front page of the New York Times
about yourself?" If the answer is no, then you need to take steps to make sure it is true. Truth, after all, is the ultimate defense in any libel action.
Be sure you have multiple sources for anything that might be controversial. Furthermore, according to other experts, you should:
- keep the documentation in good order;
- consider tape-recording interviews;
- obtain your own copies of documents that sources share with you;
- provide subjects with a chance to present their side; and
- respond promptly and with courtesy when you receive a complaint after publication--such a response may ward off a suit.
Best of all, if the material you are using has appeared in other publications and no one has yet sued, Constantine said, "chances are no one is going to come out of the woodwork and sue you."
But one final warning. You may be sued by someone other than the subject of your biography. Incidental characters who appear in your work have the best grounds to sue because they may not be public figures. It is also less likely that the information you have concerning them will come from multiple sources. So exercise caution in writing about the people who surround your subject.
The Authors Guild
is working on creating a low-cost liability insurance policy to cover freelance writers for the lawsuit costs if someone does sue.
US Legal, Inc. offers a variety of services, including providing legal information, legal products, legal forms, and document preparation. It has an informative webpage
The Missouri Bar offers advice
on libel and privacy.
The Student Press Law Center posts a number of useful suggestions and links at its website.
Blacklisted in Cyberspace, Or Why You Sometimes Don't Receive TBC
By James McGrath Morris
The following article was published in the editorial section of the Washington Post on November 29, 2008. It generated considerable comment on the newspaper's website, as well as letters to the author. Most of the writers were critical of the article, seeing it as either a defense of spam or as advocating an unrealistic expectation of free speech.
Spam was once a simple annoyance. But its exponential growth--reports suggest that about 90 percent of all e-mail is spam--has led e-mail users to build daunting ramparts to block unwanted messages and companies to circulate blacklists of alleged spammers. One cannot fault people for seeking ways to avoid unwanted or aggressive solicitations, but the consequences of some anti-spam measures may not be what the people seeking protection from spam had in mind. Some efforts to block unwanted e-messages are threatening free speech on the Internet.
Consider some of my recent experiences: I publish a modest monthly newsletter, the Biographer's Craft, that is sent electronically to subscribers. My newsletter, as the name suggests, is hardly controversial.
Last month, before sending out the new issue, I ran the copy through some spam-checking software. Surprisingly, my score came back so high that many subscribers might never receive the issue.
I contacted the company that distributes my newsletter, and a staff member explained that three sets of words among the issue's many articles could derail my e-mail: a reference to "young adult," a common classification for books intended for adolescent readers; a sentence in my editorial--"Speaking of legal matters, it's getting nasty out there"--referring to the growing number of lawsuits; and a distinguished biographer's discussion of writing a book for children that included the following comment: "At my public library I queried the children's division librarian--what works, what does not, who is 'hot.'"
The inclusion of "young adult," "getting nasty," and "hot" among the thousands of words in my publication was like poison. Indiscriminate spam-blocking software would spot those words, ignore the context and group my newsletter with unsolicited e-mails from purveyors of smut.
"If you would like to bring down your spam-check score," the staffer at the e-mail distribution company helpfully informed me, "you will have to replace all the mentioned text with some other words." In short, I would need to censor my publication to surmount the various spam blockers at work out there.
Granted, it wouldn't be the end of my newsletter if I had to replace "hot," "nasty," and "young adult" with other words. But if I surrender those words now, what might I be asked to give up next month? If a newsletter writer should mention, say, the "beastly behavior" of the Bush administration, if a literary publication uses the book title "Lolita" or if an investment consultant says the "rising number of low-priced stocks is swelling the ranks of investors" will they be among the next victims of this censorship?
What makes this phenomenon even more insidious is that in most cases, both the intended e-mail sender and the recipients remain unaware of the censorship that spam filters impose. Only rarely is the sender informed when e-mail is quarantined or diverted. Such behind-the-scenes machinations make fighting back almost impossible.
And this silent censorship is not the only way the war against spam is harming legitimate correspondence. I recently wrote e-mail messages to two people at Columbia University. My e-mail was blocked because my Internet protocol, or IP, address was, at the time I pushed "send," listed at www.spamhaus.org. That company's Web site explains that the firm maintains a database of "IP addresses of verified spam sources and spam operations (including spammers, spam gangs and spam support services)." Spamhaus supplies its list free of charge "to help email administrators better manage incoming email streams."
The list is dynamic, changing all the time. When I checked again later, my IP address was no longer on it. In fact, when I ran my IP address through 125 of the most commonly used blacklists, it was not on any of them. But how many e-mail senders know whether they are on these blacklists or even know these types of lists exist? Worse, the makers of these lists do not contact those whom they damn, so senders are convicted without any chance of offering a defense.
In other words, the 1950s anti-communist blacklists, assembled without due process, have essentially returned in a new form on the Internet. What's a person do? It's getting nasty out there online, and I'm a little hot under the collar. But perhaps I'd better not say that.
Legal Biographers Discuss Their Craft
Readers interested in biographies of legal figures will want to obtain a copy of Focus on Law Studies
, featuring a conversation among leading legal biographers. The twenty-four-page publication is free of charge and available from the American Bar Association Division for Public Education
John Paul Ryan, the publication's consulting editor, conducted interviews with eight well-known biographers; he then edited the material into discussions of such varied topics as how the writers gained access to their subjects, the influence of early life experiences on later professional life, and the connections that led these individuals to the Supreme Court or other prominent positions. The biographers also discussed the value of oral interviews and the impact of the biographer on historical understandings of public figures.
The participating writers were Linda Greenhouse, author of Becoming Justice Blackman
; Philippa Strum, author of Louis D. Brandeis: Justice for the People
; Juan Williams, author of Thurgood Marshall: American Revolutionary
; Jill Norgren, author of Belva Lockwood: The Woman Who Would be President;
G. Edward White, author of Earl Warren: A Public Life
; Joan Biskupic, author of Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice
; Roger Newman, author of Hugo Black: A Biography
; and John Q. Barrett, author of a forthcoming biography of Justice Robert H. Jackson.
Digital News: Life Magazine Photographs Online
Millions of photographs from the archives of Life magazine are now indexed and available online through a new service of Google Inc. Currently about 2 million images are up, but Google plans to have all 10 million of Life's archived photographs available soon.
Until now about 3 percent of Life's archives had been made public. "Only a very small percentage of these images has ever been published," a Google spokesperson said. "The rest have been sitting in dusty archives in the form of negatives, slides, glass plates, etchings, and prints."
The photos may be printed for free as long as they aren't being used as part of an attempt to make money.
Biographer Brookhiser Awarded National Humanities Medal
On November 17 biographer Richard Brookhiser was among the nine Americans awarded the 2008 National Humanities Medal at the White House.
Brookhiser is the author of Founding Father: Rediscovering George Washington
; Alexander Hamilton, American
; and America's First Dynasty: The Adamses, 1735-1918
, among other books. He became interested in Washington during his years as a student at Yale, when he took a seminar taught by Garry Wills. "He had a lot of interesting things to say about Jefferson, but he would also talk about Washington, sometimes using him as a stick to beat Jefferson with gently. He clearly loved George Washington, and that's what first opened my eyes--what first told me there was a powerful story."
Brookhiser joined other historians in a PBS interview discussing the founding generation; the interview may be seen at the NewsHour website
The National Humanities Medal, first awarded in 1989 as the Charles Frankel Prize, honors individuals or groups whose work has deepened the nation's understanding of the humanities, broadened our citizens' engagement with the humanities, or helped preserve and expand Americans' access to important resources in the humanities.
In addition to Brookhiser, the president presented National Humanities Medals to Gabor S. Boritt, scholar and Civil War historian; Milton J. Rosenberg, radio show host and scholar; Harold Holzer, scholar and Civil War historian; Myron Magnet, journalist and author; Albert Marrin, children's book author; Thomas A. Saunders III and Jordan Horner Saunders, philanthropists; Robert H. Smith, philanthropist; the John Templeton Foundation; and the Norman Rockwell Museum.
Notable 2008 Biographies
It's that time of year when book reviewers begin picking their favorites. We begin with what folks at the New York Times, London Times, and Publishers Weekly chose as the best biographies of 2008.
New York Times
- Lion: Andrew Jackson in the White House, by Jon Meacham (Random House)
- Angler: The Cheney Vice Presidency, by Barton Gellman (Penguin Press)
- Capitol Men: The Epic Story of Reconstruction Through the Lives of the First Black Congressmen, by Philip Dray (Houghton Mifflin)
- Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World, by Samantha Power (Penguin Press)
- Condoleeza Rice: An American Life, A Biography, by Elisabeth Bumiller (Random House)
- Delta Blues: The Life and Times of the Mississippi Masters Who Revolutionized American Music, by Ted Gioia (Norton)
- Nureyev: The Life, by Julie Kavanagh (Pantheon)
- Shakespeare's Wife, by Germaine Greer (Harper/HarperCollins)
- White Heat: The Friendship of Emily Dickinson and Thomas Wentworth Higginson, by Brenda Wineapple (Knopf)
- The World Is What It Is: The Authorized Biography of V. S. Naipaul, by Patrick French (Knopf) [At press time, the New York Times selected this book as one of the ten best books of 2008.]
- The Legend of Colton H. Bryant, by Alexandra Fuller (Simon & Schuster)
- The Snowball: Warren Buffett and the Business of Life, by Alice Schroeder (Bloomsbury)
- Alasdair Gray: A Secretary's Biography, by Rodge Glass (Bloomsbury)
- Casanova, by Ian Kelly (Hodder & Stoughton)
- The Red Prince: The Fall of a Dynasty and the Rise of Modern Europe, by Timothy Snyder (Bodley Head)
- Abraham Lincoln: A Life, by Michael Burlingame (Johns Hopkins)
- Champlain's Dream, by David Hackett Fischer (Simon & Schuster)
- The Snowball: Warren Buffett and the Business of Life, by Alice Schroeder (Bantam)
To submit an event, email the details no later than the 25th of the month prior to the event.
There were no events, aside from some holiday gatherings. The calendar will return next month.
Amanuensis: A person whose employment is to write what another dictates, or to copy what another has written. Source: Webster's Revised Unabridged Dictionary (1913)
Bantug has maintained a diary since her youth, documentation of a life that spans over half a century, all neatly written on old school notebooks. Now that is a primary source that should have gone to ALIWW. But then, on one of her long annual trips to the United States to visit her grandchildren, one of the maids had the bright idea of giving her musty bedroom a much needed spring cleaning, and so everything was cleared out, including the notebooks. Upon her return, she had a fit but managed to ask why they had messed with her things and discarded her precious notebooks. "Walang silbi na po" ("They are useless") was the polite reply of the maid. "Puno na po ng sulat lahat" ("The notebooks were filled up.") [read more]
--Ambeth Ocampo, Philippine Daily Inquirer
Michael Grosvenor Myer's eyes well up and his voice trembles as he discusses the final hours of his wife's life. "If I burst into tears, take no notice," he says politely but firmly. He takes a deep breath, regains his composure and describes how, last summer, he and his wife calmly devised a scheme for her to take her own life, yet one that meant he wouldn't face criminal charges for assisting her suicide. [Read more]
--Andrew Alderson, The Telegraph
Sharing research ideas
Don't Ignore Books Online
The lack of indexes in memoirs, travelogs, and other books upon which many biographers depend is often frustrating. The book may be a repository of wonderful anecdotes but requires hours of mining to dig up the one gem.
Consider making greater use of online books, a phenomenon that will grow exponentially now that the lawsuit with Google Books has been resolved. To search for relevant material online, use both your subject's name and those of minor figures that surrounded him or her.
By doing this, I came across a privately published, un-indexed nineteenth-century memoir, of which only a few copies had ever been published. I would not have known to even consult it had it not been scanned from the University of Michigan library collection. But it contained a lovely little tale of the author's sharing a train ride with my subject before he was well known. Not earth-shattering by any means, but such details can add richness to a narrative.
Here are links to several collections of text-searchable books:
From the Editor's Desk
This month's edition of TBC is running a few days because of the Thanksgiving holiday. We are holding extensive staff meetings (hard to find a hall big enough) to plan on how we will cope with the New Year's holiday and our January issue. But don't worry, we'll slough through.
A devoted reader and well-known biographer writes to inform us of Joyce Carol Oates's view of our craft.
"Biographies are for facts and theories, I think--but prose fiction is for the evoking of a world and of a consciousness within that world--distinct and individual--which can only be rendered through a chosen language." Her remarks appear in the current issue of Literary Matters: The Newsletter of the Association of Literary Scholars and Critics.
If you have some thoughts about Oates's comment, send them to us and we will publish them in the next issue of TBC. Our reader put it this way: "I'd love to have readers of The Biographer's Craft respond to this boneheaded remark by Joyce Carol Oates."
This month's TBC provides useful information about libel suits and their effects on biographers. This is exactly the kind of issue that the Biographers International Organization (BIO) could tackle. The founding congress will occur this spring in New York. Write us or consult the organization's webpage if you want information about BIO.
The bookstore shelves are full of biographies on Barak Obama, as well as his wife Michelle. And the booming presidential biography industry is not ignoring the man who will be a heartbeat away. William Morrow has signed noted political reporter Jules Witcover to write a biography of Joseph Biden.
Among the winners of last month's Kurt Cobain giveaway were:
Lynn Kear, who has written biographies on Agnes Moorehead, Kay Francis, and Evelyn Brent. Her first mystery will be published in 2010.
Janet Robinson, a Virginia native and South Carolina librarian. The 50-something Robinson looks forward to retirement so she can catch up on all of those books there's never enough time to read. When not answering questions in the public library's reference department, she's caring for her rescued, always spayed and neutered dogs and cats.
Carola Sena, author of many articles and book reviews; she recently completed a memoir of growing up in wartime Germany. Carola is an avid reader and member of SouthWest Writers. She lives in Albuquerque, New Mexico.
Grace Voss, a retired high school English teacher, who does freelance writing and publishes a bimonthly newsletter for the Santa Cruz County bicycle club.
We hope to have another such contest next year.
Speaking of winners, congratulations to reader Alma Halbert Bond. Her Margaret Mahler: A Biography of the Psychoanalyst
(McFarland Publishers) was a finalist in the USA Book News Best Biographies of 2008. (Complete list of winners and finalists
Happy reading,James McGrath Morris
Sold to Publishers
The following are among the biographies sold to publishers in November, as reported by Publishers Marketplace and other sources.
Gerald Carbone, Washington, to Palgrave
The Other Barack (Barack Obama's father), to Public Affairs
Michael Schumacher, The Poet of Dropsie Avenue (Will Eisner), to Bloomsbury
Craven Images: The Life and Art of Wes Craven, to Wiley
Jane Addams: A Life, to Norton
J. Michael Lennon, authorized biography of Norman Mailer, to Simon & Schuster
Billy The Kid: The Lost Interviews, to Rockin SR Publishing
Daniel Mark Epstein, The Ballad of Bob Dylan, to HarperCollins
The Strangest Man: A Biography of Paul Dirac, to Basic
See a Book You Want?
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The following biographies are in stores this month. In cooperation with Publishers Weekly, many titles are accompanied by a link to the PW review.
An American Movie Master
by Michael Sragow (Pantheon)
The Making of an American Icon
by Nancy C. Lutkehaus
Alain L. Locke: Biography of a Philosopher
by Leonard Harris and Charles Molesworth (University of Chicago)
Sara Baartman and the Hottentot Venus: A Ghost Story and a Biography
by Clifton Crais and Pamela Scully (Princeton)
As Big as the West: The Pioneer Life of Granville Stuart
by Clyde A. Milner II and Carol A. O'Connor
Samuel Johnson: The Struggle
by Jeffrey Meyers (Basic)
Cash and Carry: The Spectacular Rise and Hard Fall of C.C. Pyle, America's First Sports Agent
by Jim Reisler
The Trials of Henry Flipper, First Black Graduate of West Point
by Don Cusic
Malcolm X, African American Revolutionary
by Dennis D. Wainstock
Joe Gans: A Biography of the First African American World Boxing Champion
by Colleen Aycock and Mark Scott
Lou von Salome: A Biography of the Woman Who Inspired Freud, Nietzsche and Rilke
by Julia Vickers
Jack Coombs: A Life in Baseball
by John P. Tierney
Brookhiser photo courtesy of the NewsHour
James McGrath Morris, editor
P.O. Box 660
Tesuque, NM 87574