In a litigious society such as ours, libel suits sometimes serve as the chief weapon against the First Amendment’s guarantee of free speech and a free press. Even the most prestigious publications are susceptible: In November 2016, a jury awarded Nicole Eramo, a University of Virginia administrator, $3 million in a libel suit brought against Rolling Stone and the writer of an article—an article that was quickly discredited and subsequently retracted—that portrayed Eramo as indifferent to an alleged rape at the university. The defendants appealed and in April of this year, the case was settled for an undisclosed amount. Such cases can leave writers wary of what they’re willing to write—unsure of whether to trust a source or leery of accidentally publishing misinformation.
When contemplating whether to pen something potentially controversial, your best defense is knowing when your work is protected and when it crosses the line. While libel laws vary from state to state, there are general principles you can rely upon. To read the full version of this article on how to protect yourself, look for “The Lowdown on Libel” in the September 2017 Writer’s Digest. But writers should be forewarned: Libel applies to essays and memoirs as well.
Applying the Law to Memoirs and Personal Essays
A word of caution to writers in this nonfiction genre who often rely on memory, both their own and that of others: Recently, the argument has been raised that since memory is subjective and contains its own “reality,” all that matters is that the author’s writing is consistent with this memory. While this may or may not satisfy ethical issues, it is not a viable defense should a libel suit be brought. Without a disclaimer or qualification, the material must be true and factual.
The unfortunate truth is that anyone can sue anyone for just about anything. That said, if you keep the elements of libel in mind as you write, as well as take the proper precautions when applicable, then you will likely find yourself well-fortified to withstand a libel charge.
This post is by Richard D. Bank. Bank is an attorney, author and professor in the graduate school at Rosemont College teaching publishing law and creative nonfiction.