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Defamation, Hitler, and Artemus Jones
An interesting look at the difference between defamation and libel for the writer.
Back in my high school days, I used to read Analog Magazine off and on, and that's where I ran across a writer who was using the moniker of "Tak Hallus," whom, I thought, had a great way of handling dialogue.
In June of 1974, Analog ran a three-part story called "Stargate," and that issue had a cover by my all-time favorite artist, (Frank) Kelly Freas (say "freeze"), which you can see below:
Somewhere along the way, he started writing under his Mom-given name of Stephen Robinett and dropped the "Tak Hallus" moniker -- which, for the curious, is (kinda-sorta) Farsi for "pseudonym" -- when a "Big Name Writer" told him at a convention, "That pen name is ugly, ugly, ugly."
I don't know ... I kinda liked it myself.
The very next year, he submitted an article to the Science Fiction Writers of America's newsletter, and in the October 1975 issue, he wrote -- also under his Mom-given name -- a rather interesting piece about defamation which I thought explained the subject very well ... and while it's not necessary for court reporters or court reporting students to know this information, I am going to put it up here anyway, just in case your Legal Terminology instructor gets any wild ideas for a homework assignment.
I am also putting this one up for his wife, Kathryn Bjorklun, who had no idea he had written this editorial ... and so, without further ado ...
Recently, Damon Knight wrote a letter to the SFWA Forum urging people to resist signing book contracts containing libel/slander clauses. Such clauses usually have the writer agreeing to "indemnify and hold the publisher harmless" from any court charges brought on those grounds. The writer warrants the manuscript contains nothing defammatory. Writers often only have a fuzzy notion of what defamation means, though the contract makes perfectly clear who will pay for any of it in their book. What follows is intended to clarify the idea of defamation.
Libel and slander are both defamation. Generally, libel is written and slander spoken. Historically, defamation meant holding someone up to "scorn, contempt, or ridicule, or causing him to be shunned or avoided." Today, most states define it as doing harm to someone's reputation. Both definitions seem reasonably self-explanatory -- but are they?
Suppose you write an alternative universe novel using recent historical events. Suppose you use the name of an historical figure and link it with a real person. You make up a kinky sex episode to spice up lagging chapter three, and show you have modern kinky capabilities. Say you have Adolf Hitler rape the hitherto virtious Wilhelmina Krunch (whom you had read about in a biography of Hitler) in the embers of a burning Reichstag. A little hard of Wilhelmina's back, but definitely a breakout concept.
Clearly Hitler would have little to say about the scene. You cannot defame the dead (assuming he's dead). But what of the still living Wilhelmina? She is a real person whom you knew about before you made up the scene. The answer is fairly straightforward.
During the 30s, MGM made a movie about Tsar Nicholas of Russia and Rasputin. In it, they portrayed Natasha Youssoupoff, the wife of one of the men who had killed Rasputin (they had to shoot him, stab him, and stuff the still living Rasputin through a hole in the ice of a nearby river to do it) as having been raped by Rasputin. She sued for defamation. MGM's lawyer argued that a movie showing a woman of good character raped by a man of the worst possible character says nothing defammatory about the woman's character. That mistake cost MGM over a hundred thousand dollars. Clearly the jury thought saying someone had been raped by a mad man injured the rapee's reputation.
The moral: If you say bad things in print about a real person that have nothing to do with the historical record, you may end up owing them a nice hunk of change.
Back to Hitler, lusting und lustig in the ashes of the Reichstag. This time, suppose you made up not only the rape scene, but also Wilhelmina. You had no one specifically in mind. Suppose further, unbeknownst to you, a real Wilhelmina is out there in Sci-Fi-land, an immigrant from Nazi Germany and an avid sf reader. She reads your "The Day The Reichstag Efullsified" in the latest issue of Galaxog. Enraged, she pulls a tearsheet and stomps off to her lawyer.
He calls you.
"You mean there is a Wilhelmina Krunch?" You apologize all over the place.
Wilhelmina's lawyer, not averse to quoting pulp fiction himself, says, "See you in court."
What result? After all, did you know there was a real Wilhelmina out there?
Wrong again. You lose. Pay Wilhelmina.
Just after the turn of the century, an English newspaper printed a column by its correspondent at a French resort, allegedly describing the activities of Englishman at the resort:
"Whilst! There is Artemus Jones with a woman not his wife, who must be, you know -- the other thing!" whispers a fair neighbor of mine excitedly into her bosom friend's ear. "Really, is it not surprising how certain of our country-men behave when they come abroad?"
The correspondent made up the name Artemus Jones, but in North Wales, there lived a young man named Artemus Jones. He read the article and smiled. He went to his law office and drew up a defamation complaint against the newspaper. The case went all the way up to the House of Lords, who gave Artemus Jones 1700 pounds of the newspaper's money. Why? Because defamation is injury to reputation. his reputation had been injured. That neither the correspondent nor the newspaper had never heard of anyone named Artemus Jones did nothing to lessen the actual injury. As another judge said in a Rhode Island case in the twenties, "The question is not who was aimed at, but who was hit."
The law is the same on this point today. These are old cases, you say. Artemus Jones himself was a lawyer, you say. The odds on 1) someone seeing their name in your story, and 2) seeing their lawyer after seeing their name in your story are long. Why worry? Try this one. Poul Anderson was once threatened with a lawsuit for using a name for a character that turned out to belong to someone.
Before everyone runs back to their typewriters and changes their hero's name to THX-1138 instead of John Smith, thinking we will all be dead before a THX-1138 comes out of North Wales, there is one saving notion in the legal system for fiction writers. Most courts require that a reader be reasonably able to understand the defaming reference to refer to the person doing the suing, e.g., Wilhelmina. "Reasonably" means what a judge or jury thinks or can be convinced is reasonable.
In the mid-forties, James T. Farrell wrote a novel about a struggling writer and named him Bernard Clare. A real Bernard Clare worked for a Minnesota newspaper. He sued. The court said: "The real cause of whatever damages plaintiff has suffered would seem to be the ignorance of some people in assuming that the novel depicted plaintiff's life. It is inconceivable that any sensible person could assume or believe from reading this book of fiction that it purported to refer to the life or career of Bernard Clare in Minneapolis."
For one, the writer won, though he did have to pay legal fees.
The above reason -- that the sensible reader could not reasonably believe the name referred to the actual person -- is no doubt Poul Anderson remaind happily at his typewriter instead of unhappily in court.
A few other points need mentioning.
1) Truth is an absolute defense, but it must be the absolute truth in every detail. If you tell the strict truth about someone in print, no matter how apparently damaging it is to their reputation, it is not actionable. It must be the strict truth. Legally, they have already injured their reputation by doing the acts. Talking about it does little to increase the injury, or, prepares, they are not considered to have a good reputation.
2) Non-historical figures who have been dragged, briefly, into the historical limelight may be talked about to the extent of their public rules. Beyond that, they are private citizens.
3) Similarly, to encourage discussion of public issues, courts give wide latitude -- almost amounting to open season -- in discussing living political figures. Screwy ideas about political figures (Eisenhower a knowing agent of the communist conspiracy, etc.) are thought best aired and forgotten), left to crumble of their own weakness. Other public figures, stars, writers, etc., may be criticized almost as roundly, at least to the extent of their public performance.
4) If someone consents to be defamed, go ahead and do it. But get it in writing first.
One last point, a big point.
All the above assumes you are saying bad things about people, either knowingly or unknowingly. If you are saying good things, or neutral things, you can use anyone's name you please, and say anything you please, true or not. I often use the real names of real people in stories. I once used my wife as a character, described her, and called her by name. She had a bit part in the story, selling a ticket on a spaceship to the protagonist. He thought she was as attractive as I do. On other occasions, I have used the names of people who conducted research on which a story is based. They are mentioned as having doesn't research the characters are dealing with. Why not? Search is a fine occupation, an army of valuable workers out there backgrounding sf stories. They should get credit for their work. Neither of these examples are defammatory or in any way actionable. All I said was good things about the people.
Hopefully, this has cleared up some of what it means when you agree to hold a publisher harmless from libel. At least you might have a few rules to think about when you check over a manuscript.