Let’s recap.  Ms. Strickland is unhappy that she can’t turn a bad review into a disingenuous quote making it seem that PW is actually endorsing works when it is not.  She is also unhappy being referred to as a self published author, as if that is a bad thing.  She is not a self published author. She thought about it, even paid money to be included in a PW issue as a self published author, but she is not one. And clearly doesn’t want to be identified as one.  But she is an author who feels it is perfectly okay to obscure the truth about what  review sites have to say about her book.

Women, Sex and S&M: Mainstream Media Totally Wrong About Female Desire — Again | | AlterNet –  So yesterday, I linked to Kate Roiphe’s Newsweek piece.  I hadn’t read it but I linked to it because of the mainstream nature (newsweek) of the article but apparently it is long and wrong.  Alternet

“Yet, it remains that Roiphe speaks loudly and carries a big pen. Her views tend to go long because they sync up with existing sexist tropes and limited, gender-biased views on sexuality. Gloria Feldt, author of the book No-Excuses, observes that “co-option is rampant on all sides of this equation. It is so damn hard to change a culture while you’re living in it. The rewards of living within the patriarchal narrative are so high and the benefits of bucking it so low for most people.”

Happy Memories Become Less Special If You Talk About Them – Apparently we like things the less we talk about them. Gizmodo  

“A word-of-mouth recommendation or warning invariably impacts upon the opinion of the recipient of the information. But it forces the storyteller to reconsider the event in detail, softening the experience. If you’re talking about a great restaurant, for instance, it will make you spot the tiny flaws you didn’t think about at the time. On the flip side, if you’re recalling a bad dining experience, it might make you more likely to give the venue the benefit of the doubt. The concept extends to your love life, too.”

Judge Denny Chin on Google Books: “It Does Not Seem Those Negotiations Have Gone Anywhere” | LJ INFOdocket – This is of no surprise.  InfoDocket

The Second Circuit Court of Appeals judge said he was told by conference organisers [Fordham IP China Conference] to talk about three things: the languishing Google Books litigation he has presided over since 2005, cloud computing and his recent trip to China. Of the Google Books case, Chin said simply: “It does not seem those negotiations have gone anywhere.

Thad McIlroy – Future Of Publishing » What Have We Learned About Amazon Book Reviews? – This article summarizes a few papers on online reviewing. Anonymous reviews have a negative impact whereas negative reviews that are detailed can increase sales. The Future of Publishing

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• Cold Ridge by Carla Neggers * $2.99 * A | BN | K | S
• The Harbor by Carla Neggers * $2.99 * A | BN | K | S
• Stonebrook Cottage by Carla Neggers * $3.29 * A | BN | K | S
• The Waterfall by Carla Neggers * $3.70 * A | BN | K | S
• The Rapids by Carla Neggers * $3.70 * A | BN | K | S
• The Cabin by Carla Neggers * $3.70 * A | BN | K | S
• The Uneven Score by Carla Neggers * $3.99 * A | BN | K | S
• Night’s Landing by Carla Neggers * $3.99 * A | BN | K | S
• The Carriage House by Carla Neggers * $3.99 * A | BN | K | S
• The Groom Who (Almost) Got Away by Carla Neggers * $3.99 * A | BN | K | S

I really liked this series but be warned, the first book ends in a cliffhanger and you have to read all three to get a full flavor. Plus, I really wanted more at the end of the third book.

• The Gathering by Kelley Armstrong * $2.99 * A | BN | K | S

Related posts:

1. Tuesday Midday Links: Good YA Deals
2. Tuesday Midday Links: News and Deals
3. Tuesday Midday Links: Sunshine Deals Making a Big Impact

Chris McGrath, an online entrepreneur from Milton Keynes, who wrote and self-published a little-known book entitled The Attempted Murder of God: Hidden Science You Really Need to Know, has launched libel proceedings against Vaughan Jones, 28.

He claims Mr Jones wrote damning reviews of is book on Amazon September and October 2010, which he had published under the pseudonym “Scrooby.” Mr Jones also revealed his true identity.

The suit is for defamation rather than invasion of privacy (i.e., revealing the author’s true identity).

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Awesome news, guys, Stanza is NOT dead.  Apparently, a month after Apple’s iOS update, Amazon has gotten around to releasing a Stanza update so it now works just fine on your iOS devices.

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Amazon has acquired YAP, a speech transcription software company. The co founder of YAP helped develop the speech engine that drives Nuance (which drives Siri) One columnist suggests that means that there will be speech enabled books in the future for Kindle users. AllThingsD points out that it can facilitate shopping by voice.

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A number of authors really hate the format production process at Smashwords known as the meatgrinder, particularly those authors who go to great lengths to produce a beautifully rendered ePub. In response to those complaints, Smashwords will begin to accept other ebook formats, other than DOC, in 2012.

This is good for readers because the meatgrinder doesn’t always produce well formatted ebooks.

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A couple of weeks ago, I saw the debacle on Courtney Milan’s blog where she suggested the language used by Barry Eisler and J A Konrath in support of their opinions regarding authors in publishing was incendiary. Shortly after this, a reader emailed me with a link to Konrath’s blog, a link to a YouTube video, and a link to Amazon.

Konrath and Eisler have  co written a book called “Be the Monkey” that is sold at Amazon. “Be the Monkey” title is based on this very graphic video of a monkey orally and anally raping a frog.  (Trigger warnings here for those who are sensitive to sexual abuse).

I objected to two white, wealthy men (based on their proclamations of earnings) encouraging people using a metaphor about power through sexual dominance and the binary choice of be the rapist v. be the rapee.  ”Be the Monkey,” I divined, was a metaphor based on the video of the monkey exerting his dominance over the frog.   Konrath took exception to this:

@jane_l We compared publishing to two animals. Two animals are NOT in any way equal to humans being violated and abused.

I pointed out it was a metaphor but Konrath came back and said it was an analogy about monkeys and frogs, nothing more:

jakonrath We linked to a monkey and a frog. The anology begins and ends with a monkey and a frog. Don’t read more into it.

How can I not?  Isn’t that the purpose of linking the video with the book and writing a blog post about it?  And how can an analogy using monkeys and frogs actually only be about monkeys and frogs?  Isn’t an analogy or a metaphor all about using literal terms to express more abstract concepts like, say, power?

Konrath claimed that I should be ashamed of drawing that conclusion from the metaphor analogy:

jakonrath Sorry, I respect women too much to compare them to frogs. Rape shouldn’t be trivialized like that.

I pointed out that he, himself, applied the frog metaphor to his own marriage:

Barry: Yes! I mean, which of the networks would have broadcast that monkey raping a helpless bullfrog?

Joe: It wasn’t rape. It was consensual.

Barry: I don’t know. I don’t think the frog was conscious. I’m not sure it was even alive.

Joe: I–

Barry: After the first five minutes, I mean.

Joe: I’m married. I see this all the time. The frog was conscious. Just not very active.

Konrath replied that I should “Read it again, and try to lighten up.”

I don’t get it, right?

But there are far too many rape oriented insults on the internet. Witness the rape language that female gamers suffer regularly and the entire Dickwolf scandal by the Penny Arcade or Laurie Penny’s piece at the Independent about how having an opinion on the internet is akin to wearing a mini skirt or the MMA fighter who tweeted that “Rape is the new missionary.”

The message regarding choice as it relates to publishing, whether one self publishes or traditionally publishes or goes with a digital publisher or does a coop or a mixture of any type of publishing, does not need to rest on rape metaphors. And publishing isn’t a binary choice of being the Frog (the rapee) or the Monkey (the rapist). I’m pointing this out because I’ve quoted Konrath here before with approval. I’ve posted blog posts by Barry Eisler here, with approval. Had I known that these metaphors were being pushed by both as early as May of 2011, I probably wouldn’t have. I’m not sure. I’m regretful today and maybe it is due to my oversensitive and humorless nature.

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Globe and Mail has an infographic about book sales and publisher margins. The margin of profit for publishers is declining with digital books, according to the infographic from $8 to $4.24. I’m not certain I believe this infographic. I still remember Michael Hyatt indicating that at $9.99 and under the Agency model where publishers get 70% instead of the wholesale 50%, publishers’ margins weren’t decreasing dramatically. And then there’s the statement from Hachette (read the last piece)

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Hachette’s sales are down 8% in the U.S.

The decline at the U.S. Hachette Book Group division was attributed to increased sales of lower-priced e-books and the impact of the Borders bankruptcy. E-books accounted for 21% of HBG’s revenue through the first nine months of the year, compared to 9% in the same period in 2010.

Lagardere said while higher e-book sales contributed to lower revenue, they provide a higher margin, although the company provided no earnings in the quarterly trading update.

Via Publisher’s Weekly.

Related posts:

1. Thursday Midday Links: Defamation Accusations Strike Again
2. Thursday Midday Links: Is Google Book Settlement Dead?
3. Thursday Midday Links: Random House hires Sue Grimshaw, former romance buyer for Borders

Defamation is a part of the law with which I am intimately familiar and I have written a series of posts on the topic here at DA (because we’ve been the target of these threats before).

I relayed to RRP’s attorney that I would not remove the post unless he could convince me I engaged in a legal wrong. As there is nothing defamatory in the post, I refused to take it down, gave my address, and told him I would await his correspondence.

I take all of these threats seriously and presume that this is the opening salvo to a lawsuit because we won’t be threatened or intimidated into not posting news related items about publishing houses by phone calls or letters from lawyers or others.

As much as I don’t want to engage in costly litigation, if I have to protect our right to exert our First Amendment rights of free speech, I will.

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In more disheartening news, Microsoft appears to be reentering the ebook market as a partner to the much talked about Blio software.   Microsoft owns the proprietary LIT format which has fallen out of favor amongst most mainstream publishers and retailers.   Blio is this much talked about ebook software that was conceived by visionary Ray Kurzweil.   Problematically, Blio has been in demo form for almost two years.   The ebook market needs another proprietary ebook format with yet another DRM like DA needs a lawsuit.

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The Ninth Circuit has struck a blow to the First Sale theory arguing that if a product is sold that   (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions, that sale is a license rather than a transfer of ownership.   The Vernor v. Autodesk case involved the use of physical discs being resold on eBay rather than digital media.   This is a huge blow to the First Sale right.

Another blogger suggests that the FTC require correct labeling of ebooks so that consumers will be fully apprised that what they are buying is a license to use a book during an indeterminate time.   Of course, once this fully penetrates the consumer public consciousness, prices for leased goods will likely drop dramatically.

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In the plagiarism and publishing news, Tony Blair is accused of lifting text from a fictionalized version of his life in his recent memoir.   Author Frank Owen, author of Clubland (a book about the club culture) has sued writer Gerald Posner for copyright infringement.   Posner was found to have plagiarized for his writings at the Daily Beast.   Simon & Schuster, Posner’s publisher, has apparently done an internal investigation but has not released the findings of that internal investigation.

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Ever since iBooks rolled out in April, I’ve had my doubts about Apple’s commitment to its ebook program.   Let’s face it.   Jobs himself says no one reads anymore and the current iBookstore is doing nothing to belay that belief.   To date, Nate the Great over at digital reader, counts only 33,000 books in the iBookstore.

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Rose Fox, editor of the new romance section for Publishers’ Weekly tweeted a picture of the new look:

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Amazon Kindle will be sold in Best Buy stores right along side the nook.   I think this is great for consumers because they will be able to compare the devices right next to each other.   I also hope that Best Buy continues to carry the Sony Readers.

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Related posts:

1. Red Rose Publishing Having Problems Internally?
2. Saturday Midday Links Roundup: Writers Organizations Mad at Harlequin
3. Saturday Midday Links: Some Valentine’s Weekend Special

For Walker, the court case has come as a shock. “I think this is serious. It means that every time you want to write a fiction you have to ask the permission of the owners or the place,” she said. “Potentially it represents a big threat to our liberty.”

She added, gloomily: “We will all have to end up writing science fiction instead.”

TW: I don't think any sales "cannibalize" any other sales. Does a used book sale cannibalize a new book sale? Not at all. In general, people buy the nicest version of a book they can at the time. Can a used book sale or a library loan introduce my author, my series, my brand to a new reader, who may then be enthralled, entranced, ensorcelled into buying the next new hardcover in the series (and the eARC, and the final ebook, and maybe the pb too, so she can lend it out)-’heck, yes. My goal is to make more readers for my brand. ANY sale has the potential to do that.

H/t to reader les

Amazon has released the MAC version of its Kindle Application. Now Mac users can enjoy all the freebies that the PC and iPhone/iTouch users enjoy.

Related posts:

1. Thursday Midday Links: More on Amazon and Macmillan
2. Thursday Midday Links Roundup
3. Thursday Midday Links: Teleread Acquired by Media Company

CBS Evening News carried a piece on digital books which apparently means that it’s gaining some traction in the public consciousness. I expect that it will be a big gift this year. After all, how many iPods/iThings can you buy a kid?

It’s Banned Book week and there are several blog posts around the web:

• Donalyn Miller describes a few thwarted attempts at censorship and a list of ways that the community can help combat book banning.
• Romance BookWyrm blogs about Fahrenheit 451 by Ray Bradbury - why she likes it and why she thinks it was on the list.
• Marjorie Kehe at the Christian Science Monitor links to an op ed piece in the Wall Street Journal arguing that there is no need for the ALA to spend so much time and money promoting the cause against banned books because the banning of books is largely ineffective. (Maybe because there is a force mobilized against the banning of books? Oh, WSJ, really, this is an editorial you want to print?)

New Yorker contacted Fred Benenson who is attempting to crowdsource the translation of Moby Dick into Emoji. Emoji is the icon form of texting and communication started in the East, particularly Japan. The whole project is being sourced out of Kickstarter, a site that allows authors and other artists to offer up proposals for the consuming public to pledge money toward. Kickstarter is a fascinating concept and somewhat related to a John Scalzi post of a year ago in which he ponders whether 1,000 “True Fans” could support an artist.

The French fashion industry has been attempting to reduce and/or eliminate the emaciated model. In another effort to combat the falsity presented by touched up images, the French have proposed a law that would require any ad that has been photoshopped to display a disclaimer. I haven’t thought this through yet, but I kind of like it.

A Chicago mother has sued four students for setting up a false facebook page under her son’s name. The counts include defamation and intentional infliction of emotional distress. The facebook statuses included racist statements and description of sexually explicit acts with other males. Calling someone gay or a racist isn’t always defamation but I can see the intentional infliction of emotional distress being successful.

The Times UK has a great account of the history of the paperback. When the paperback was first introduced, the book industry was appalled and believed that the low pricing would doom the entire trade.

The book trade was, largely, appalled at this notion. Cheap paperbacks -’ Penguins were priced at 6d at a time when most new hardback novels were 7s 6d -’ would not only be unprofitable themselves, but would also undermine the entire industry. Publishers including Victor Gollancz and Stanley Unwin, the head of Allen & Unwin, refused to sell Lane rights in their books.
….
Woolworths ordered 63,500 copies. There was a stampede for the new books, which sold 150,000 copies within four days of publication in August 1935. Within a year, Penguin’s sales were at three million.

Related posts:

1. Monday Midday Links: It Is All Gloom and Doom (today at least)
2. Monday Midday Links:
3. Monday Midday Links RoundUp: EC Rumors, HSN, and Branding

With all the discussion lately about the rights and wrongs of online speech and conduct, I recently discovered a 2003 piece by Clay Shirky, appropriately titled “A Group Is Its Own Worst Enemy” (someone posted it in reference to the ginormous Brockmann brouhaha).   Shirky’s insightful analysis of online communities tracks what he (borrowing partly from psychologist W.R. Bion) sees as a consistent pattern of group development and dissolution:   a group forms and solidifies around a common purpose and the establishment of external enemies around which the group rallies.   However, over time, the very thing that initially formed and grew the group starts to work against it, especially if the group does not have a constitution that establishes a shared set of rules:

So these are human patterns that have shown up on the Internet, not because of the software, but because it’s being used by humans. Bion has identified this possibility of groups sandbagging their sophisticated goals with these basic urges. And what he finally came to, in analyzing this tension, is that group structure is necessary. Robert’s Rules of Order are necessary. Constitutions are necessary. Norms, rituals, laws, the whole list of ways that we say, out of the universe of possible behaviors, we’re going to draw a relatively small circle around the acceptable ones.

He said the group structure is necessary to defend the group from itself. Group structure exists to keep a group on target, on track, on message, on charter, whatever. To keep a group focused on its own sophisticated goals and to keep a group from sliding into these basic patterns. Group structure defends the group from the action of its own members.

Constitutions are especially important in free speech environments, Shirky argues, because groups inevitably tend to revolt against themselves (isn’t this an ingrained political truth by now, too?), and the more freedom people have, the more potential chaos and rebellion.

I am not certain I agree with Shirky’s insistence on formal community constitutions, but I do think he’s right that groups can easily dissolve on the very foundations that built them, especially if they do not have something important or compelling enough to redirect the more destructive patterns of group behavior.     I hadn’t thought a lot past this point until last week’s excellent discussion on internet anonymity, and more particularly after Jessica’s thoughtful question about the difference between Will Shetterly’s “outing” of a fellow blogger and the Maryland court’s ruling to protect online anonymity:

But isn’t this exactly what the justices did in the decision Jane discussed? Extend anonymity to online individuals on the same basis it is protected for physically embodied individuals?

I knew instinctively that the answer was “no,” that the Maryland court and Will Shetterly’s positions were not identical.   But it took a while for me to discern that while both were focused on rules and on rule-making (and breaking), Shetterly’s argument was essentially ethical and the court’s was, obviously, legal.

And the difference is as important, even though it’s hard to distinguish law and ethics sometimes, because we tend to compress them so often in our discussions of online speech and conduct.   Take the Shetterly incident, for example.   When Will Shetterly got angry at a fellow blogger, he posted her full legal name online as part of his response to her, even though she blogged and participated online under a pseudonym.   He later defended himself by pointing out that her legal name was already attached to her online LiveJournal account, and therefore he wasn’t “outing” her as people charged, ultimately writing a post on Internet anonymity in which he argued that

In the world Behind The Keyboard, nicknames are connected to faces or voices or mailing addresses-they’re ultimately legally verifiable, though you may need detectives if someone you only know by a nickname shafts you.

But in Life Online? A pseudonym is just a pseudonym, not a nickname. Log out of gmail, make a new account, and you’re a new person, walking free from all the shit you’ve made.

The post seems to turn on this whole notion of having a name that is “legally verifiable” as a way to be accountable online and in real life for what you say and do.   Which, besides providing a convenient rationale for Shetterly’s own actions, also tries to tie the notion of anonymous speech online to legal responsibility.

In some cases – defamation, for example – that tie is explicit.   Although even then, an accusation of defamation does not prove defamation, which was the whole point of the Maryland decision Jane discussed; in that case, the court held that someone could not force an online outlet to release someone’s “legally verifiable” identity based on an accusation of defamation.   Legally speaking, people are entitled to a certain protection of anonymity, ironically, for the same reason Shetterly ultimately changed his mind and tried to wipe clean all references he made to the opposing blogger’s legal identity:   he was publicly shamed into doing it by the online community.   In and of itself, public shaming is not unlawful; however, there are things that flow from the loss of anonymity that can be, like harassment, stalking, defamation, etc.

And at some point speech can be chilled in an environment that does not appear to welcome diverse opinions.   DA gets charged with this sometimes, and I can certainly see how some of these conversations would seem intimidating and not particularly diverse to people whose views do not mesh with whatever majority emerges at any particular point.   There are times I wish there was more dissent in our threads, that we could have more extended debate, with people on different sides of an issue arguing strongly and passionately – and fairly — for their different positions.   The problem is that no one can be guaranteed that her view won’t be challenged, and not everyone likes to argue as much as I, uh, as some of us do.

In any case, most of the issues we have with online speech and conduct are not legal in nature but rather ethical – that is, they are not covered by legal principles but rather by codes of conduct that emerge from and are tacitly or explicitly agreed upon by the members of any identifiable community. Here’s the thing about the law:   it’s a narrow, artificial, and sometimes bizarre paradigm.   There are many wrongs and hurts people endure every day that have absolutely no legal remedy.   Just because someone is an a-hole toward you does not make them legally liable for your offense, even though every one of your friends, family, and casual acquaintance and commenters think they’re out of line.

And based on Shirky’s argument, I would argue that we should not underestimate the importance or urgency of paying more conscious attention to shared ethical codes.   Because as things stand now, when people get pissed, they sometimes invoke some type of legally-inflected threat or language, which can easily have the effect of inflaming or chilling conversation.   And the vast majority of the time, there is no legal issue at stake, and the ethical issues get quickly reduced to mutual charges of what basically boils down to ‘you’re a poopy head and you don’t know what you’re talking about.’

Ideally, we rely on people, especially grown-ups, to regulate and moderate their own behavior, a basic notion of some ubiquitous social contract informing expectations for online behavior.   So even if Will Shetterly did not do a legal wrong in publicly posting information that is publicly available, as one of his commenters explained,

. . . you were angry enough so that you would have deliberately revealed her private information if it had actually been private in the first place. Which is, from their viewpoint, basically the same thing. It’s the principle that matters. Not the petty details. Heh.

In other words, it’s not the fact that the information was already public that matters; it’s the fact that Shetterly was mad enough not to care, because his intention was to call this person out and take away something he thought she did not deserve: her relative anonymity, as fragile as it may have been.   That Shetterly wants to invoke pseudo-legal language to “explain” his reasons behind what he did does not make that language applicable.   In fact, if you think about his argument that it’s easier to find out people’s legal identity in real life, it’s completely belied by the ease with which he got a hold of and published the identity of the blogger whom he opposed.

More generally, though, what I find most objectionable about Shetterly’s actions is that because he has decided not to claim a certain right (the right to speak anonymously), he decided it was okay to deny that right to someone else.   In the same way he had a right to make the choice for himself, so should the other blogger.   If Shetterly did not like the other blogger’s choice, he does not have to interact with and/or read her.   But to take away a right he also had strikes me as Shetterly exercising his own rights twice simply because he could, or because he didn’t think through the implications of his actions, or because he was pissed.

I think what Shetterly did was ill-considered, and I think it’s an important ethical issue because it does not just impact the individuals involved; it sets a community standard and identifies a boundary across which certain speech and behavior are not okay for the ongoing welfare of the community.   Some communities will thrive on wider boundaries, some on more narrow ones.   Some communities will prefer a broad tolerance for speech but a narrower approval of behavior.   It will depend on the purpose, make-up, and structure of the community, and on the contexts in which various speech and behavior occur.

Two fundamental questions are what ethical rules should apply, and how should they be applied?   This is the problem with ethics:   compared to how people perceive the law, ethics can seem soft and slippery.   I would argue that in this sense they’re not much different from the law, but that’s an unnecessary tangent.   More importantly, I would argue that it’s the softness, the difficulty in discerning and applying ethical rules, that makes them so valuable.   Because they require thoughtful generation and application.   They require reflection, comparison, context, conversation.   They require community participation.   In fact, I would argue that it’s not the rules, per se, that are of utmost importance; rather, I would argue that it’s the process of working toward the rules that counts, because it’s that process that engages the community as a community.   And that, consequently, the rules will always likely be a work in progress, as long as the process of the work is taking place.

Another key, in my opinion, is to recognize that many of our recognized communities will have members that also belong simultaneously to other communities.   And further, that people who are members of the same community may have different roles in that community.     I believe that much confusion and conflict emerges from the elision of differences inherent to distinct roles.   For example, authors and readers occupy different roles.   Authors profit economically from their writing, and the name under which they write is identified with and connected to that economic profit.   Consequently, they may have a narrower margin for speaking out under that name.   Readers, by contrast, may have more freedom in speaking out, but they also do not gain an economic benefit from doing so.   The roles are different.   Which means that the standards of conduct are going to be somewhat different.

That does not necessarily mean, as some believe, that readers are/should be held to a lower standard of conduct; it simply means that they are/should be held to a different standard, but one, hopefully, that is at the same level of ethical conduct, taking account of the different roles.   The trick, of course, is identifying these different roles and expectations and applying appropriate standards of conduct.

The issue gets a little more complicated, I believe, when it comes to strongly connected or overlapping communities like readers and bloggers, where many readers are themselves bloggers.   The more overlap you have, the more confusing it can get, because it becomes more difficult to distinguish the elements that go into determining different standards of conduct.   Should the blogger be held to a higher standard than the reader, and if so, what and why?   And what about when authors are speaking out as readers?   If they do so under their author name, does that automatically connect their words to the economic consequences of their work?

If you’ve been following the larger RaceFail ’09 controversy, you know that it’s been going on since January.   I do not believe that the conversation will ever resolve, in part because there are too many individuals with valid, competing interests who have a stake in the debate.   But is that such a bad thing?   We are, perhaps, too hungry for resolution and unreasonably intolerant of the natural flux of dynamic organic systems.   In an ideal world, there might be a perfect balance of priorities and expectations, but in the “real life” of the Internet, a fixed community is a comments closed, defunct community.

Still, if you could construct your ideal community online, what would it look like?   Would there be explicit rules and what would its foundation be?   Free speech or not?   What’s the most important rule you would want to see implemented and why?

No related posts.

A jury trial was held and appeared only to be a two day trial resulting in a verdict for Cretella. The judgment had not been entered at the time of the writing of the blog post, but an order allowing Kuzminski additional time to file post trial motions was filed. The order noted that an adverse judgment had been rendered against the Defendant.

Related posts:

1. The Libel Suit? It is On
2. Publisher Wins Arbitration Suit Against Author for a Return of an Advance
3. Penguin Prevails in Plagiarism Suit Brought by Author

“To date, Section 230 of the Communications Decency Act has begun to be interpreted fairly broadly to immunize websites from the actions of its commenters (and in Wikipedia’s case, the actions of the webizens who edit it).”

Claims still exist against 19 individuals and the SFF Writers of America.

Thanks to Jia.

Related posts:

1. Barbara Bauer’s Lawsuit Against the Internet Starting to Gain Some Traction
2. Millenia Black Settles Lawsuit with Penguin Over Race
3. District Judge Puts Halt to Lexicon

The individuals responsible for editing and commenting, however, do not have the same protections. The problem I think for Bauer is in defamation suits, an absolute defense of libel is the truth. Any of the defendants would have the right to prove that Bauer had no good reputation from her own acts. Her whole life will be under the microscope now ala Roger Clemens and his multitude of affairs that are now seeing the light of day.

Via SmartBitches.

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3. Millenia Black Settles Lawsuit with Penguin Over Race

Barbara Bauer is on SFWA’s twenty worst agents list.    NielsonHayden also noted that Barbara Bauer is a “well known scam agent” and so did Miss Snark.   As everyone and their cousin on these sites note, calling someone a scam agent is defensible if it is the truth.   (I don’t think it’s entirely accurate to say that it is not libel if it is the truth. Truth is just an absolute defense to libel).

On the P&E website, it claims that Victor E Cretella infringed on a contract.   I am not sure how you can infringe on a contract.   You can breach a contract.   You can tortiously interfere with a contract but infringe?   In any event, this is a bit more interesting.   Apparently some had made complaints to the Maryland Bar Association regarding Cretella’s activities as PublishAmerica’s attorney.   Any complaint made to an ethics board is investigated in my state.   Is Cretella an unethical lawyer?   Essentially, that is what P&E is going to have to prove.

7/14/07: PublishAmerica’s lawyer Victor Cretella infringing contract? This is what we’ve had reported to P&E. According to our source, Vic has infringed upon or is breaching the terms of a contract in regards to the Arbitration clause.

So, is this how PA operates? They don’t honor their contracts or show any good faith even when it comes to negotiations and arbitration?

By the way, anyone who has had dealings with an attorney in Maryland who knows they are in violation of the law or their ethics code can file a complaint against the attorney using the information at http://www.courts.state.md.us/attygrievance/complaint.html. This site lists some of the sanctions applied to various attorneys. According to our sources, sounds like it’s time to report Vic for his behavior.

Thanks to Dooley for the tip.

Related posts:

1. Regnery Suit Dismissed
2. Random House to Settle James Frey Class Action Suit
3. Litigious J.K. Rowling Files Suit to Keep Previously Approved Fan Site from Publishing Book

“The First Amendment requires that we protect some falsehood in order to protect speech that matters.”

Gertz v. Robert Welch, Inc.

NY Times v. Sullivan

Beginning in 1964, the New York Times v. Sullivan case began extending greater protection to the right of free speech, arguing that to allow the standard defamation law to continue without change would have serious negative impact on the importance of civil discourse. New York Times v. Sullivan is one of the most important cases in the legal history of the defamation. In it, the Supreme Court raised the bar for suits brought against media defendants. As stated in the previous article, this bar was extended to include all suits brought by public individuals. The bar was the requirement that the person accusing someone of defamation had to prove that the accused acted with “malice” even if the information was false.

In the NYT v. Sullivan case, a public official brought suit against the Times for an editorial advertisement entitled “Heed Their Rising Voices.” New York Times v. Sullivan, 376 U.S. 254, 256 (1964). The advertisement contained accusations that in the effort to enforce desegregation, that thousands of “Southern Negro students . . . [were] being met by an unprecedented wave of terror by those who would deny and negate [the U.S. Constitution and the Bill of Rights] whih the whole world looks upon as setting the pattern for modern freedom.” Id. (pdf link to the actual advertisements). The advertisement went on to list a number of incidents as examples of the wave of terror. Id. While none of the examples named the public official, there were strong suggestions that he, as Montgomery Police Commissioner, was responsible for some of the actions of “terror” including bombing Dr. King’s home, wrongfully arresting Dr. King, and accusing King of perjury. Id. 257-58. The case went to trial in the Circuit Court of Montgomery County and Sullivan was awarded damages of $500,000, (remember this is 1964) and the Supreme Court of Alabama affirmed. Id. at 257.

According to wikipedia, there were more than $300 million in verdicts assessed against the media for reporting on civil rights violations at the time that Sullivan was taken up by the Supreme Court.

A number of the itemized examples of terror were actually incorrect. Id. at 259. For example, Dr. King’s home had been bombed twice while his wife and child were present but these two events occurred before the Unhappy Person’s was the Commissioner. Id. Three of the four times that King had been arrested also happened prior to the Unhappy Person acting as Commissioner. Id. The Unhappy Person had nothing to do with King being accused of perjury nor Dr. King’s indictment of the same. Id.

The advertisement was submitted to the Times from an ad agency acting on behalf of the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South”. Id. at 260. The Committee asserted that 64 names that appeared underneath the advertisement had endorsed the statements. Id. Trial testimony showed that not one of the 64 individuals had authorized the use of his name nor had they been aware of the advertisement until the time of Sullivan’s demand for retraction. Id. The Times made no attempt to contact any of these individuals, nor did it make any attempt to check the accuracy of the contents of the ad with its own recent stories that had contradicted the events or by any other means. Id. at 261.

The Supreme Court found that the Constitutional protection demands proof of actual malice as opposed to implied malice. Id. at 283. The Court found that there was no facts to support a finding of actual malice. NY Times v. Sullivan, 376 U.S. at 284. The responsible individual at the Times advertising department believed the advertisement was “substantially correct.” Id.

The Unhappy Person pointed to the failure to print a retraction and the poor background check of the facts of the article which was contradicted by the Times own reporting.

The Retraction

The refusal to print a retraction did not constitute malice in this case because the advertisement didn’t specifically name the Unhappy Person and could reasonably have been construed as not referring to the Unhappy Person. Id. It was not a final refusal as it asked for subsequent information. Id.

The Fact Check.

In addressing the accusation that the Times did not do any fact checking, the Court reiterated that in order to establish that the Times knew that the advertisement was false, the Unhappy Person had to show that the “state of mind” of the advertising department knew or should have known that the information was false, not merely that it was false. Id. The Times’ failure to fact check was excused because the names on the letter were well known and believed to be trustworthy and the ad agency supplying the ad was also known to be trustworthy. Id.

What is Malice?

According to the Supreme Court in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666-67 (1989),

[T]he actual malice standard is not satisfied merely through a showing of ill will or 'malice' in the ordinary sense of the term…. Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. … Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of 'reckless disregard' 'cannot be fully encompassed in one infallible definition,' we have made clear that the defendant must have made the false publication with a 'high degree of awareness of … probable falsity,' or must have 'entertained serious doubts as to the truth of his publication.'

It isn’t enough that the MeanGirl wanted to make a profit in Harte-Hanks, instead the court found that actual malice existed because there was evidence of “reckless disregard” for the truth. The paper printed statements accusing Connaughton, a judicial candidate of “dirty tricks”, attempting to bribe a witness, and blackmail. The paper relied on the statements of one witness. Upon further investigation, the paper learned before publication that the statements of the witness were denied by the Unhappy Person as well as five other witnesses; that the charge of blackmail was inconsistent with facts known to the publisher; as well as the voice of the witness (hesitant and at times, inuadible suggesting she was unreliable as a witness). Despite having these facts prior to publication, the paper proceeded to print a story based on the uncorroborated testimony of an unreliable witness and the court found this to be reckless disregard for the truth.

In comparison, there is the case of St. Amant v. Thompson, 390 U.S. 727, 731 (1968) where the court found that the failure to investigate alone is not malice. A deputy sued a a candidate for public office, St. Amont, who asserted that the deputy took bribes. The information came from a source whose reputation was unknown to St. Amant and St. Amant did not undertake any investigation. The court found that there was no evidence to “permit the conclusion that [St. Amant] …entertained serious doubts as to the truth of his publication.” Id. at 731.

In Hustler v. Falwell, 485 U.S. 46 (1988), Jerry Falwell sued Hustler for a number of actions, including defamation, based on a fake ad where a picture of Falwell appeared next to an endorsement of a brand of liquor and the words “Jerry Falwell talks about his first time.” The piece was based on Campari ads which featured a number of celebrities sharing their first times. “Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of ‘first times.’” The Hustler parody stated that Falwell’s “first time” was “during a drunken incestuous rendezvous with his mother in an outhouse.” The piece went on to characterize Falwell as a hypocrite who preached only when he was drunk. In small print, at the bottom, was a disclaimer "ad parody-not to be taken seriously.– 

In deciding that the Hustler parody was outrageous and a distant cousin of political cartoons, it did not find it to be “vulgar”, “offensive”, or “shocking” but instead “not reasonably believable.” The jury in the trial had found for Hustler in the libel suit because the parody could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [Falwell] participated.” In other words, because the ad was so distant from Falwell’s persona, it could not have been understood to be anything but untrue and therefore did not meet the malice standard.

I think it’s important to note that the Falwell case did not turn on the disclaimer because disclaimers cannot save a person from defamation. What won the day for Hustler and Flynt was that the parody was so extreme as it could not be understood as anything but a parody. When a caricature is done that is close to the subject matter and imputes acts that could reasonably be construed as attaching to the subject of the parody, the decision can swing in favor of defamation.

Desnick v. American Broadcasting Companies, Inc., 233 F.3d 514 (2000) involved the claims by a fired eye clinic technician that a company was purposefully degrading the test scores to increase surgical repairs. The technician had made these claims on a local station before ABC’s “Prime Time Live” broadcast. The clinic sued the technician for defamation in state court and won. ABC knew of this but because it had other corroborating evidence chose to go ahead with the segment anyway. The Seventh Circuit found this to be harmless because there was no evidence in the trial record which seemed to make the technician less credible.

Dorsey v. National Enquirer, Inc., 973 F.2d 1431 (9th Cir. 1992) was brought by Arnold Dorsey also known as Engelbert Humperdinck against the National Enquirer based on an article that was published suggest Dorsey had AIDS. Kathy Jetter had a child with Dorsey and Dorsey was ordered to pay child support and educational expenses. Jetter petitioned the court for a modification requesting, among other things, an order requiring Dorsey to purchase a life insurance policy. In court papers, Jetter alleged that Dorsey had AIDS and the life insurance policy was “of dire necessity.” Jetter gave the Enquirer a copy of the affidavit and the Enquirer printed an article entitled: “Mom of Superstar Singer’s Love Child Claims in Court … Engelbert Has AIDS Virus.” Dorsey denied this when questioned by the Enquirer and suggested that Jetter wasn’t a reliable witness. The court found the gist of the Enquirer’s article was a fair and true report even though the Enquirer did not print any evidence of Jetter’s credibility issues.

In the case of Curtis v. Butts discussed last week, the jury found that the magazine engaged in wanton and reckless disregard of the truth by basing its story on the uncorroborated affidavit of an individual on probation from bad check writing charges, failing to check the story against the game film to see if changes had been made; no attempt to obtain statements from a purported witness. Curtis, 388 U.S. at 157-58. In contrast, the second case in the Curtis decision did not meet the malice standard. The dispatch was given from the field and was for immediate dissemination. There wasn’t time for the reporter to fact check and engage witnesses from the riot. The reporter gave his own eye witness account and the account was internally consistent except for a minor discrepancy. There was nothing to indicate that there was a “severe departure from accepted publishing standards.” Id at 158-59. Ultimately, the malice determination came down to whether there was a “severe” deviation in the accepted publishing standards and in cases where the news must be “hot”, the publishing standards will be lower. (Interestingly, the Supreme Court in Harte-Hanks said that deviation from publishing standards, by itself, will not be sufficient to meet the malice standard).

Distilling down the defenses

Ultimately the court looks at whether the source is reliable, whether a Mean Girl had the opportunity to fact check, what the accepted publishing standards are in particular situation, and most importantly whether the state of mind of the MeanGirl is to cause injury to the Unhappy Person (the knew or should have known of the falsity standard). If an Unhappy Person can show that the MeanGirl published the defamatory statement with knowledge that it was false, or with reckless disregard for its truth or falsity, the Unhappy Person can meet the malice standard.

According to a survey of libel suits from 1974-1984, 90 percent of Unhappy Persons bringing suit lost at trial because the malice standard is so hard to meet. Randall P. Bezanson, The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get, 74 Cal. L. Rev. 789, 790 & n.4 (1986). Malice was to be shown by the intermediate standard of “clear and convincing.”
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Ultimately, the Unhappy Person has the burden of showing that the statement is false, that the MeanGirl acted with malice and the latter must be proved a “clear and convincing” evidence. If you remember in the second part of the series, I talked briefly about the difference between the civil standard (preponderance of the evidence) and the criminal standard (beyond a reasonable doubt). Clear and convincing is a standard somewhere between Preponderance and Beyond a Reasonable Doubt.

One jurist called it “the fortress of absolute malice.” Janklow v. Newsweek, Inc., 788 F.2d 1300, 1307 (8th Cir. 1986) dissenting opinion. It’s no wonder that so few cases are won by those claiming malice.

Conclusion

The case law can only serve as a guide, just like this post. There is no definitive measurement of what malice is. There are some guideposts such as relying on uncorroborated testimony from a suspect witness or posting information you know is false. But the facts of each situation, from case to case, or blog post to blog post, will always be slightly different. One thing that bloggers can be assured of is that very few defamation suits will be won. Sadly because bloggers don’t have the time, inclination or knowledge, they often succumb to legal sounding threats by taking down posts or issuing apologies where none are required rather than rebuffing the Unhappy Person. Legal threats are serious and I treat them as such. Anytime someone emails me with noises about lawsuits, I respond as if my emails will be evidence in a subsequent lawsuit. However, I rarely believe that these suits will ever come to fruition which is why I always respond with a request for the Unhappy Person’s lawyer to contact me.

I can’t speak for other bloggers (and obviously if you are a blogger contacted by a lawyer, get yourself a lawyer quick), but I do not post information that I believe to be false or that is from suspect individuals. I try to obtain confirmation from a second source if I receive information from someone unknown to me. I’ve learned, in the short time I have been blogging, that those who are accused often are willing to respond to a phone call or email. It doesn’t take much effort to do this. But I won’t blog from a position of fear because I know that the law favors spirited discourse. If someone is unhappy with something I’ve said, don’t email me. Have your lawyer send me a letter.

• Part 1: How to Fling About Insults Like Lawyer
• Part 2: You Have to Prove I’m a Mean Girl
• Part 3: Public v. Private Figures

Related posts:

1. Defamation Part 3: Public v. Private Figures
2. Jane’s Part 4 for Defamation Delayed
3. How to Fling About Legal Insults Like a Lawyer, Part 1 of Many Parts

One of the things that make defamation cases so difficult is that most of the time, the person filing suit is a public figure. Defamation suits have been crippling to the publishing industry. Newspapers, book publishers and so forth faced extinction at the hands of these suits. Recently a publisher filed for bankruptcy due to the legal fees incurred defending three libel suits.

While truth is always a defense in a defamation case, the mere fact that it is false is not enough to prove defamation. Where a publication is made about a public figure, the MeanGirl has what is called a “qualified privilege” regarding false statements that are published. In order for a public figure to be successful in a defamation case against a MeanGirl, the public figure must overcome that “privilege” by showing that the statement or statements were made with malice

Public Figure Identified.

There are two types of public figure: First, there are the individuals who through fame and notoriety are public figures for all purposes; and second, there are individuals who inject themselves or are drawn into a particular public controversy and thereby become public figures for a limited range of issues. Most authors would be considered public figures.

There are two primary cases which courts rely upon in making a determination of who is a public figure. The first is Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Supreme Court decision of Curtis involves two cases and answers the same question: Who is a public figure?

The Coach: A magazine published by Curtis Publishing Co (MeanGirl) accused the athletic director of the University of Georgia (Unhappy Person) of conspiring to “fix” a football game between the University of Alabama and the University of Georgia. Id. at 135. The article was based on an affidavit which related the conversation which was overheard between the Unhappy Person and the Alabama coach. Id. at 136.

The Unhappy Person argued that not only was the affidavit false but that the person who swore out the affidavit (sometimes known as the affiant) was a known criminal. Unhappy Person believed that the magazine “departed greatly from the standards of good investigation and reporting and that this was especially reprehensible, amounting to reckless and wanton conduct, in light of the devastating nature of the article’s assertions.” Id. at 138.

The Protestor: A massive riot erupted on the campus of the University of Missouri when federal officials come to enforce a court decree ordering the enrollment of a Negro, James Meredith, as a student in the University. Id. at 140. A reporter for the Associated Press wrote in a dispatch that a private citizen, present on the campus, took command of the violent crowd, encourage them to use violence and personally led a charge against the federal marshals. Id. Walker had engaged in political activity prior to this, had his own following known as the “Friends of Walker” and was “deemed a man some political prominence.” Id.

The Unhappy People urged the Supreme Court to protect the value of reputations and argued:

Newspapers, magazines, and broadcasting companies are businesses conducted for profit and often make very large ones. Like other enterprises that inflict damage in the course of performing a service highly useful to the public * * * they must pay the freight; and injured persons should not be relegated (to remedies which) make collection of their claims difficult or impossible unless strong policy considerations demand.'

In deciding the correct balance between free speech and personal rights to reputation, the court looked upon the social necessity of guaranteeing individuals their personal right to make their thoughts public for that right is the “maintenance of our political system and an open society.”Id. at 149. The Court determined that “the issue of who is a public figure turns on who has access to the means of counterargument to be able 'to expose through discussion the falsehood and fallacies’ of the defamatory statements.” Id. at 156. Butts was a public figure by his status as an athletic director for a University and Walker by thrusting himself into “the ‘vortex’ of an importat public controversy.”

For example, in the Hibdon v. Grabowksi, 195 S.W.3d 48 (Tenn. Ct. Appl 2005), the Unhappy Person was held to be a public figure when boasted about his personal watercraft modifications in an internet newsgroup and on a nationally-circulated magazine for personal watercraft trade to counteract the negative statements about him. The Church of Scientology was considered to be a public figure by a New York court in Church of Scientology Intern. v. Behar, 238 F.3d 168 (NY Ct. App. 2001).

Public Figure Not Found

In the 1974 case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court extended the protection against defamation to any media defendant regardless of the status of the Unhappy Persons. While this decision was actually a drawing back of a previous Supreme Court decision of Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 31-32 (1971), it is read to have expanded the protections of media defendants. This case is important to bloggers because more and more courts are viewing bloggers in need of the same protections as that of media defendants.

In Gertz, a Chicago policeman shot and killed a youth. Gertz was hired by the youth’s family to represent them in a civil case against the city. Robert Welch, Inc. owned a publication known as “American Opinion” which published the views of the “John Birch Society”. The magazine began to write about the trial of the Chicago policeman and that it was part of a wider conspiracy to discredit law enforcement agencies and that this would lead to a national police force that would result in a Communist like state. The civil trial, the publication asserted, was part of the “Communist campaign against the police. Id. at 325- 26. The article called attorney Gertz a “Leninist”, a “Communist Fronter”, and suggested a criminal record. Id. at 327. None of these statements were true.

The fighting issue became when does a private person become embroiled in a public matter such that he or she (Unhappy Person) is required to prove actual malice on the part of the MeanGirl publisher. The first thing the Supreme Court considered was that private individuals lack the same platform for rebuttal. For example, a blog owner has a greater platform than a commenter who has no corresponding blog or website. Second, private individuals do not invite the scrutiny of public officials or public figures. By running for public office, an individual must accept criticism of his actions. By writing a book and selling it, the author invites attention and comment.

Attorney Gertz was deemed by the court to be a private citizen. Although he was an active member of his community and within his profession and had even published books and articles on legal subjects, he had “achieved no general fame or notoriety in the community.” Id. at 351. He did not speak with the press about the civil lawsuit and took no part in the criminal prosecution of the police officer. Id. at 352. For this controversy, Attorney Gertz was not a public figure.

Ultimately the Gertz court found that a public figure can be defined in two ways:

• an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.
• an individual voluntarily injects himself or is drawn into a particular public controversy in order to influence resolution of issues, and thereby becomes a public figure for those limited range of issues.

The Supreme Court also took up a case of a socialite’s divorce. In Time, Inc. v. Firestone, 424 U.S. 448 (1976), the court refused to identify a socialite divorcee a public figure because she “did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Id. at 453. In Wayment v. Clear Channel Broadcasting, Inc., 116 P.3d 271 (Utah 2005), a reporter who might have considered herself a local celebrity was not a public figure as it related to her reasons for leaving her employment with the television station because there was no public controversy over her departure. A software company was found to NOT be a public figure because it did not have a persuasive presence in the community and there was no evidence of its products were a matter of public concern.Worldnet Software Co. v. Gannett Satellite Info. Network, Inc., 702 N.E.2d 1149 (Ohio Ct. Appl 1997).

Stephen King is a person of such pervasive fame or notoriety that he would likely be a public figure for all purposes and in all contexts. Certainly Britney Spears and Paris Hilton would be considered public figures as well. I would argue that Nora Roberts, winner of the 2007 Book of the Year Quill Winner and author of some 200 books would aso be a public figure for all purposes and in all contexts.

Other authors who are less well known might be a public figure for a limited range of issues such as those regarding publishing, but perhaps not for those regarding issues in their persona lives, depending upon the information and the controversy. Bloggers such as myself and Karen Scott might be public figures for a limited range of issues as well; however not for all purposes or in all contexts. Individuals who are commenters and do not maintain a blog presence have an even lower public profile and might well be considered a private citizen although the courts have not yet addressed the varying degrees of Interent participation in measuring public profiles.

Some may argue that by participating in debate at all, we might all become Walker, interjecting ourselves into matters of public controversy and thus raising the defamation bar to a nearly insurmountable level. However, the Gertz case is still good law and there should be Gertz protection for those who merely comment and are participating in public discourse for that, too, is part of the protection of Freedom of Speech.

I know I promised a discussion of malice, but I think that is best left for its own blog day topic so next week, we’ll discuss malice.

Related posts:

1. REVIEW: The Private Undoing of a Public Servant by Leoni Martell
2. How to Fling About Legal Insults Like a Lawyer, Part 1 of Many Parts
3. Public Service Announcement for Romance Community

Good name in man and woman, dear my lord, is the immediate jewel of their souls: Who steals my purse steals trash; 'tis something, nothing; 'twas mine, 'tis his, and has been slave to thousands; but he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed.

William Shakespeare, Othello, Act III, scene iii.

When I started writing about defamation a couple of weeks ago, I quickly realized that it was much too complicated of a topic to stuff into one large blog post. It’s not just complicated but it is also confusing with technical issues that can make or break a case but are not easily understood.

One major element of a defamation case is determining if the defamation is "per se" or "per quod". The easiest case to prove is the defamation per se. The hardest, by contrast, is defamation per quod. Here’s the difference in pratical terms. The courts have decided that there is a certain set of words that is just so bad that just merely uttering the words aloud in front of someone other than the Unhappy Person (or printing them), that the reputation of the Unhappy Person must be damaged. Those words are known as "defamation per se." All other words are "defamation per quod." The application of the difference is in what the Unhappy Person must prove to be successful.

Burden of Proof

Let me back up here for a minute. In every lawsuit, the Unhappy Person bears the "burden of proof". When an Unhappy Person files a lawsuit, she essentially says to the court, "I’ve been wronged. MeanGirl did X to me. Because of MeanGirl doing X, I incurred damages. I deserve compensation." These are called the elements of a cause of action and the Unhappy Person has to prove each and every element by a "preponderance of the evidence." If you view the scales of justice, preponderance of the evidence is tipping the scales just slightly in one direction. In a civil case, for almost every element, Unhappy Person needs to prove each element just by the "greater weight of the evidence."

The "burden of proof" is different in a criminal case. In a criminal case, the State/City/County (Unhappy Bunch of People represented by one) must prove each and every element "beyond a reasonable doubt." (not beyond a shadow of doubt as many people think. Beyond a shadow of a doubt is a much tougher standard than beyond a "reasonable doubt". In other words, you can have unreasonable doubts and still find a person " guilty" whereas if the standard is "beyond a shadow of doubt" you would have to find the person not guilty.) Not to get off track here, but there is no standard called "beyond a shadow of doubt." That is purely a fictional creation.

Differences in Proof

Back to the difference between defamation per se and per quod. In a defamation per quod case, the Unhappy Person has to prove alot more elements.

The court usually determines that the statement is defamatory per se so that isn’t an element that you have to prove. In a defamation per quod case, the jury decides if the statement actually is defamatory. The Unhappy Person must prove it. Also and most importantly, in a defamation per quod case, the Unhappy Person must show what is called "special damages." In the law, special damages are pecuniary or monetary losses incurred as a result of the or because of the defamation. If there is no monetary or pecuniary loss stated specifically (i.e., Unhappy Person failed to sell 2500 books as a result of the defamatory statements made by MeanGirl reviewer), the Unhappy Person won’t even be allowed to proceed with the suit. The judge will dismiss it even if the statement was defamatory.

Emotional or physical harms are not considered to be "special damages" so if someone’s feelings are hurt, even to the extent that it causes sleepless nights or loss of weight or mental anguish, if there is no corresponding "pecuniary" loss, the Unhappy Person is out of luck. The Unhappy Person bears the "burden of proof" of showing the connection between the statement and the loss. For example, in the Lee case, she would have to show that any loss of profits were because of malicious and false statements made about her when the loss of profits could easily be attributable to her refusal to remove the copied material; her threats of lawsuits; her threats of negative statements made to the press; and so forth.

Defamation Per Se

Defamation per se is generally statements made in four broad categories. Statements made to a third party which impute one or more of the following are considered to be defamatory per se:

• criminal conduct (can’t be a traffic violation or a crime punishable by a fine but can be suggesting someone beats their wife, is a pedophile, driving while drunk, tried to kill someone, i.e., attempted murder)
• loathsome disease (HIV or other sexually transmitted disease)
• misconduct in one’s trade, profession or office, or (engaged in plagiarism, taking money as a bribe; sleeping with a client; or a single mistake that suggests a habitual course of conduct)
• sexual misconduct (some states define this as applying to women, i.e., a woman who is unchaste, but could be anyone engaging in adultery, even sleeping around or engaging in whorish behavior)

The Balance

In the suit of Ramsey v. Fox News Network, Inc., 351 F.Supp.2d 1145 (D. Colo. 2005), the family of Jon Benet Ramsey brought a defamation suit against Fox News for news reports that the Ramseys characterized as suggesting the Ramsey family could be responsible for the murder of the young girl. The court dismissed the suit on the basis that the statements made by Fox News were not defamation per se. The statements in question were primarily the comments made by reporter Carol McKinley:

Detectives say they have had good reason to suspect the Ramseys. The couple and JonBenà©t’s nine year old brother, Burke, were the only known people in the house the night she was killed. JonBenà©t had been strangled, bludgeoned and sexually assaulted, most likely from one of her mother’s paintbrushes. The longest ransom note most experts have ever seen-three pages-was left behind. Whomever killed her spent a long time in the family home, yet there has never been any evidence to link an intruder to her brutal murder.

In dismissing the case, the court quoted the piece from Othella and recognized that the reputation of a person is a precious and valuable entity; however, when weighed against the Constitutional protection of free speech and the importance of free speech concluded as follows:

These constitutional protections are not just for broadcast media. Indeed, free speech itself acts as a check on the media. For example, in our current technologically-advanced era anyone can get on the internet, become a self-proclaimed journalist or pundit and draw a worldwide audience. Webloggers can in a matter of hours point out key errors in reporting by mainstream media outlets. When people have the means and expertise to generally publish fair and perhaps insightful comments quickly and easily on matters of public concern, such as what a crime scene reveals or does not reveal, law enforcement and the rest of us may benefit. The robust protections guaranteed by the First Amendment thus remain as important and valuable as ever.


Plaintiffs may well have filed this case more for vindication than for money, and perhaps vindication is what they deserve. But they have a better chance for meaningful vindication in the court of public opinion through vigorous debate about the background and details of this heinous crime than by suing those whose reporting may arguably include some less than favorable inferences about them. Plaintiffs cannot have the public discourse playing field entirely to themselves.

Id. at 1154.

Next week I’ll address the media defendant, of and concerning a public matter, and malice.

Related posts:

1. How to Fling About Legal Insults Like a Lawyer, Part 1 of Many Parts
2. It’s Only My Opinion, But You Are a Mean Girl

This is the second part in How to Fling About Legal Insults Like a Lawyer. One of the questions last week wondered whether free speech was simply unfettered. Absolutely not and I don’t mean for this series to imply that, but I do know that over the space of a year and a half, I’ve had more than one person threaten legal action. I always take those threats seriously because they implicate not only me, but also my dear blogging partners. Further, these threats can intimidate others who are less familiar with the law into taking down posts, apologizing for perceived wrongdoing, and so forth.

The First Amendment is not intended to protect every utterance. Instead, what the court, any court, has to do is weigh the balance between the right of a person to be free of something injurious and harmful or, in other words, to be free of defamation, and the right of the press and the public to engage in critical discourse. As one legal scholar has said, hurt feelings are not to be redressed in the court of law: “Although scathing characterizations can be hurtful, the law of defamation does not provide redress whenever feelings and sensibilities are offended.” Ward v. Zelikovsky, 643 A.2d 972 (N.J. 1994) citing Harper, 2 The Law of Torts  § 5.1, at 24.

One of the more difficult concepts to grasp is the difference between opinion and fact. In the 1974 case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974), the Supreme Court held that the First Amendment protects statements of opinions.

We note that to restrict too severely the right to express such opinions, no matter how annoying or disagreeable, would be [sic] dangerous curtailment of a First Amendment right. Individuals should be able to express their views about the prejudices of others without the chilling effect of a possible lawsuit in defamation resulting from their words.

Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108, 110 (1983). In Rybas, the Unhappy Person was a landlord who was accused of being anti-Semitic in a letter from a tenant’s lawyer, the MeanGirl. The Pennsylvania Court found that the statement, while “offensive”, was not defamatory.

The problem of what is opinion and what is fact is one that plagues even the courts. Judge Easterbrook, in the Stevens v. Tillman case I discuss below stated the “courts have wrestled with the question . . . and have come up with buckets full of factors to consider but no useful guidance on what to do when they look in opposite directions, as they always do.” Stevens v. Tillman, 855 F.2d 394, 398 (7th Cir. 1988).

Judge Easterbrook muses philosophically in Stevens , arguing that the there can almost be no difference between opinion and fact.

Most efforts to separate "fact" from "opinion" start with the belief that a "fact" is something verifiable, while an opinion is not. The branch of philosophy known as logical positivism is built on the proposition than only what is verifiable is worth debating (more rigorously, that "there are no synthetic a priori statements except this one– ), but it has fallen on hard times not only because no one can separate the "verifiable" from the"non-verifiable" (was the statement "there are craters on the other side of the moon" an opinion that turned to fact when we gained the ability to put satellites in orbit around the moon?), but also because most philosophers believe that there are useful ways to debate even non-verifiable statements.

Whatever Judge Easterbrook wrote (in the court’s unanimous opinion), the truth is that most courts ostensibly follow the rule that an opinion is a statement that has no verifiable facts or, stated another way, is objectively incapable of proof or disproof. Courts use a multi factor test, and all the factors tend to examine whether a reasonable person (that’s the objective part) would view the statement as verifiable by facts. A statement can move from opinion to defamatory fact if the author implies that there are “facts” to support the opinion. Confused yet?

Courts often use examples to make explain their decision as to whether a statement is a fact or is an opinion and thus it is easier to use examples to explain the paradigmatic differences.

Jennifer McKenzie asked last week whether the statement “That person is racist" was defamatory. This depends on whether the statement is an invective or has factual basis that is implied. Restatement (Second) of Torts  § 566. For example, in Horowitz v. Baker, 523 N.E.2d 179 (Ill. Ct. App. 1988), the statements about Unhappy Person included "sleazy– , "cheap– , "pull a fast one– , "secret– , and "rip-off– . Alone and without corresponding facts, the statements imply that the Unhappy Person was engaged in bad, unlawful, and unethical acts. The newspaper that printed the statements, however, based those statements on truthful facts and thus the opinion statements were not defamatory.

In Como v. Riley, 731 N.Y.2d 387, 387 (N.Y. App. Div. 2001) the court found that an action could be brought on the basis that an email was sent entitled “Racism” with the statement that the Unhappy Person’ office cubicle contained a statuette of a black man hanging from a white noose. Of course, if the Unhappy Person actually had a statuette of a black man hanging from a noose like object in the cubicle, the email would have not been defamatory because it would have been true.

In Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988), the Second Circuit of Appeals, found that statements of bigotry were not actionable without corresponding factual inferences. Id. at __. An elementary principal, the Unhappy Person, sued the president of the local PTA, the MeanGirl, for calling the principal a racist. Some of the statements by the MeanGirl president included the following:

We found in our investigation that our principal must be removed…. Our principal is very insensitive to the needs of our community, which happens to be totally black. She made very racist statements during the boycott. She is a racist. She must go. We cannot have racist people around our children…. She made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made.

Easterbrook writes that the term racism has been bandied about so frequently that it has become “watered down” and become “common coin in political discourse.” I know of one particular author who blogs quite frequently about individuals being racist but I’ve generally viewed her statements as name-calling and opinion rather than statements of fact, no matter how hurtful or offensive. Let me quote some more from Easterbrook:

Language is subject to levelling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. When plantation owners held blacks in chattel slavery, when 100 years later governors declared "segregation now, segregation forever– , everyone knew what a "racist" was. The strength of the image invites use. To obtain emotional impact, orators employed the term without the strong justification, shading its meaning just a little. So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings. In daily life "racist" is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication

Is Easterbrook and the Stevens opinion binding on absolutely all actions of defamation? Of course not. It’s merely illustrative and I thought that Easterbrook’s well thought out and philosophical ruminations interesting and helpful. There are fewer and fewer successful cases of defamation, in part because rhetoric is not usually going to be found to be defamatory. A few more examples of non actionable statements:

• a reporter accused of sloppy and irresponsible reporting. Cole v. Westinghouse Broadcasting Co., Inc. 435 N.E.2d 1021 (Mass 1982).
• accusation of a reporter being a “fellow traveler” of “facists” susceptible to wide interpretations. Buckley v. Littell , 539 F.2d 882 (2d Cir. 1976).
• article stating a women’s basketball coach had a tendency to “screw things up” when it came to her team was not defamatory because the statement was not so obviously false and that “‘[s]ports columnists frequently offer intemperate denunciations of coaches’ play calling or strategy.” Washington v. Smith, 80 F.3d 555, 557 (D.C. App. 1996).

On the other side of the coin, you cannot excuse defamatory statements by using the prefatory words, “in my opinion” or “I think” because “it would be destructive of the law of libel if a writer could escape liability for accusations of crime simply by using, explicitly or implicitly, the words ‘I think.’” Cianci v. New Times Publishing Co., 639 F.2d 1200 (2d. Cir. 1980).

Calling someone a mean girl, a hack, or hateful are all opinions with no concrete meaning. What one person defines as mean, another will say is dislikeable but not mean. Calling someone a writer with no discernible skills and can’t plot her way out of a paper bag is also opinion. Writing that Jane Doe is a thief and a liar are closer to the fact side of the diagram. If a person would write Jane Doe is a liar and then show examples that I had taken blog articles and republished them as my own, it is not likely defamatory since the facts are there and can be verified as truth. (I have not done this, of course. I am merely using it as an example).

As I stated at the preface of this article, I am not advocating a system by which bloggers or commenters hurl invectives without conscience. In fact, if you can bear one more Easterbrook quote, he wrote “civilized discourse should be the aspiration of us all.” Stevens, 855 F.3d at 405. But the right to passionate should not be chilled by unhealthy threats of lawsuits as it is not the civil discourse or moderate speech that is subject to condemnation. Id. at 399.

It’s a balance. If there are questions, please post and I’ll do my best to answer them.

Next week: The standards I am referring to above are standards that apply to the criticism of a public figure. By and large, if a blog article is about an author, that author is a public figure. I’ll address the differences next week in part 3 of many parts. Defamation per se v. Defamation per quod and the media defendant.

Related posts:

1. REVIEW: Cover of Night by Linda Howard: second opinion
2. The Second Opinion to the Second Epilogue to the Epilogue of the Book
3. REVIEW: Good Girl Gone Bad by Karin Tabke

Source: Snuffle Guppy

It has occurred to me, from my years of online inhabitation, that people love to fling about the threat of a lawsuit but never really follow through. The sad truth is that most people apparently can’t tell their ears from their eyes when demanding reparations. The most frequent accusation that I’ve seen is that we bloggers are slanderers. I don’t know why the word “slander” has become shorthand for defamation but it seems to be the most commonly used term when someone has something dislikeable uttered about her or him.

I felt it was worthwhile to do a couple of posts on the law of defamation so that when people become unhappy with what I have written, they can consult these series of posts to correctly phrase their legal threat. Or maybe bloggers can realize that there are some defenses.

Defamation = Libel or Slander

Defamation is a legal term which is defined as the untruthful statements of fact made to a third party that causes damage to a person’s reputation. From the Black’s Law Dictionary, Sixth Edition:

An intentional false communication, either published or publicly spoken, that injures another’s reputation or good name. Holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal or civil which includes libel or slander.

Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse derogatory or unpleasant feelings or opinions against him. Statement which exposes person to contempt, hatred, ridicule or obloquy. The unprivileged publication of false statements which naturally and proximately result in injury to another.

Defamation can either be published orally or in writing. Oral defamation, that which can be heard with the ears, is referred to as slander. Written defamation, that which can be read with the eyes, is referred to as libel. For anything that is transmitted via the interwebs, the claim will always be “I am going to sue you for libel” rather than “you slandered me”.

The minute someone uses the word “slander” in conjunction with something that is written, bells should go off indicating that the accuser has no knowledge of the law and has not been in contact with anyone who has knowledge of the law.

SLAPP

A lawsuit brought against a blogger for making an unfavorable statement can be a SLAPP or “Strategic Lawsuits Against Public Participation”. George W. Pring and Penelope Canan coined the term in its law review article, Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 4 (1989). California was one of the first states to enact an anti-SLAPP provision. Calif. Code Civ. Proc.  § 425.16. The beginning of the chapter states the purpose:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.

The hallmark of a SLAPP suit is that it lacks merit. For example, if someone were to threaten a blog owner for making them look foolish for posting plagiaristic material, it is likely that the court would view that suit as lacking in merit and designed to quell the valid exercise of free speech.

How a lawsuit works is essentially this. Someone files a document accusing another of wrongdoing. The person doing the accusing is called the Petitioner or Complainant. The person accused of wrongdoing is called the Defendant. The document containing the accusations is called a Petition or Complaint. The Petition looks like this:

Wherein the Unhappy Person states the following in support of her Unhappiness:

1. The Unhappy Person, of a certain county, has been made unhappy by MeanGirl.
2. MeanGirl did x, y, and double z wrong.
3. X, Y, and Double Z caused Unhappy Person to become Unhappy.
4. Many damages ensue.
5. Damages result of X, Y and Double Z done by MeanGirl.

Wherefore Unhappy Person respectfully prays the Court punish MeanGirl in all the ways including ones that are not on the books; but, if nothing else, in all ways that are just and equitable.

Massachusetts, a state in which certain agents base their business, has an anti-SLAPP provision. The anti-SLAPP provision allows the MeanGirl Defendant to ask the court to dismiss, or throw out, the Unhappy Petition.

In a 2003 case, MacDonald v. Paton, a website owner was sued for defamation by a political figure for content the owner placed on her site. MacDonald v. Paton, 782 N.E.2d 1089 (2003). The Unhappy Person was referred to as “Gestapo agent” in the Athol Daily News. Paton’s, the MeanGirl, site included a section called the “The First Dictionary of Athonics” and after the Athol Daily News piece, Paton wrote up the following definition:

“nazi – not see 1. A political affiliation whose platform espouses military dictatorship, racial cleansing, eugenics and intolerance. 2. In Athol, a term sometimes used to describe certain selectmen who wish to ignore most issues except for those which place them firmly in bed with chiefs of police. (see Old Macdonald had a gun, E – I – E – I – Oh shit).”

The Unhappy Person, the politician, brought a defamation suit against a number of individuals including Paton, the MeanGirl owner of the now defunct website. Paton filed for a special motion to dismiss according to the Massachusetts anti-SLAPP provision. G. L. c. 231,  § 59H. The Massachusetts Appellate Court found that the petition should be dismissed for several reasons:

• First, the anti-SLAPP statute applies to cases in which both the Unhappy Person and MeanGirl are persons of modest means; Id. at 1093.
• Second, it is applicable to defamation actions; Id.
• Third, by having the site as a forum for speech by citizens of the community of the city, the website “served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community." Id. at 1093-94.

A previous Massachusetts case interpreting the anti-SLAPP provisions found that petitioning includes “reporting violations of law”. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-162, 691 N.E.2d 935 (1998). Like us, reporting on the posting of plagiaristic material.

Under the anti-SLAPP statute, once a court grants a special motion to dismiss, the MeanGirl is awarded costs and reasonable attorney’s fees as well as appellate fees and costs. This is not within the discretion of the court. The court MUST award them, meaning not only is the Unhappy Person out her attorneys’ fees, but she has to pay MeanGirl’s attorneys’ fees and costs. And let me tell you, MeanGirl would hire very a expensive attorney, just for the fun of it.

So, for bloggers everywhere, you might want to be aware that there are protections for you in some states, such as the anti-SLAPP provisions. I wonder how many complaints ever result in an actual lawsuit. Instead, you have SEAPPs (coined by me without a corresponding law review article as far as I can tell via Google) or Strategic Emails Against Public Participation. SEAPPs are employed by the Unhappy Persons with the hopes of frightening individuals unfamiliar with the law into not speaking out. We here at Dear Author know the law and aren’t afraid to use it.

Next week, we will take a look at statement of fact v. statement of opinion.

Related posts:

1. Sony Insults Librarians; Moves to Cut off Nose
2. Non Sequitur of the Week: Consent: A Legal Take on Love
3. REVIEW: Highland Fling by Jennifer LaBrecque

This case has really interesting ramifications if it is ever litigated given that IMDB relies, in part, on user added information. IMDB does promise to correct errors if brought to its attention.

Sometimes, especially when two or more people have similar or identical names, correct credits can be associated to the wrong person. If this is the case, please identify all the credits that belong to one of them and we’ll move the incorrect ones to the other person(s) sharing the same name

Ultimately the court may decide whether a website owner can be held responsible for the dissemination of inaccurate information which could be harmful to a person’s reputation. In the past, this has not been successful.

Related posts:

1. Amazon Invests in Online Personal Book Database Software
2. What Goes on on the Internet, Stays on the Internet?
3. Mislabeling Is Getting Around

We did get one fact wrong. In the original post, I stated that Holly Lisle’s career was in danger. Holly Lisle has kindly informed us that she is in no danger of having her career killed at the moment.

Ms. Lisle has emailed me a laundry list of complaints and accusations which I invite her to post on her own blog or I will post them here, if she likes.

EDITED TO ADD: Ms. Lisle did post her reply.

Later today, my OPINIONS of good v. bad marketing.

Related posts:

1. Holly Lisle Hates Chains (and after reading her rant, Chains may hate her)
2. REVIEW: Prince of Ice by Emma Holly
3. REVIEW: To Hate Like This Is To Be Happy Forever by Will Blythe