A Little Libel
Posted on June 24, 2004 Posted by John Scalzi 3 Comments
Todd Pierce, the Clemson professor I wrote about last month (here and here) who provided spectacularly bad advice to writers, has stuck his foot in it again, and in an interesting fashion. As a preface, know that Tor editor Teresa Nielsen Hayden savaged Pierce’s “advice” here, particularly his advice to new writers to lie about their professional credits on cover letters (he’s since amended it, but you can see an unredacted version here), and then in a separate entry wondered if Mr. Pierce had not taken his own advice with his professional credentials. TNH’s crowd of enthusiastic admirers ran with the ball, making fun of Mr. Pierce all down the comment thread.
The thread lay dormant for a month or so until yesterday, when Mr. Pierce showed up, read the accumulated posts, was appalled that everyone was so mean to him and then promptly threatened TNH with a libel suit. What follows from there isn’t pretty, mostly people (including myself) trying to explain to Mr. Pierce that people saying mean things about you does not actually equate to libel in the United States — it is famously tough to prove libel in the US, for reasons relating to that pesky First Amendment of ours — and suggesting to Mr. Pierce that if one does not wish to have one’s publishing credentials openly questioned, perhaps one ought not be on record advising others to lie about their credentials. After all, when I give people writing advice, I tend to base it upon what has worked for me in the past, and I suspect most other writers do the same.
I believe we may have talked Mr. Pierce down from filing a libel suit, but given his comments in the thread, I still suspect Mr. Pierce isn’t entirely clear why other people in the thread don’t seem to support his position that he’s the victim here. This is of course his own karma, and while in some respects I sympathize with the man — one suspects this is his first exposure to a comment thread pile-on, in which enthusiasts of a person’s blog form a line behind the blogger to get their kicks in, and TNH’s enthusiasts are both smarter and meaner than the average blogger’s — in other respects I really don’t sympathize at all. Fundamentally, he doesn’t seem to get why working writers and editors are offended and appalled at the suggestion that one ought to lie about one’s credentials to get work. And while I admit that it’s probably more satisfying to posit the existence of a sinister cabal bent on destroying one’s career than to actually examine the root cause of these folks’ agitation (i.e., one’s own really bad “advice” to writers), in the end Mr. Pierce would be better off doing the latter.
Also, from a purely rhetorical point of view, Mr. Pierce argues poorly: He makes easily refutable statements of some facts, does not seem in command of other facts (for example, he confuses slander with libel, which is not an encouraging thing when one is threatening a suit based on one or the other), and tries to use emotional appeals to support what he feels are facts (i.e., he feels that what TNH has done to him is wrong, therefore it should be clear that she has committed libel). He gets thrashed, and none to kindly. Again, it’s easy to feel sorry for the guy. But then again, it’s not like he’s some 15-year-old comment board geek over his head in his first flame war; he is a professor of English at a major university. He ought to be able to argue clearly and for God’s sake know the difference between slander and libel.
In any event, for people interested in how not to defend oneself in a comment thread full of smart people with little patience for rank silliness, this is good reading. Start here and just scroll on down.
Now, aside from Mr. Pierce’s beatdown, he does bring up an interesting question: When can someone say he’s been libeled? After all, Mr. Pierce does believe he’s been libeled (or slandered, which apparently to his mind is the same thing). He hasn’t been, but when could one say one is?
Bear in mind with what follows that I am not a lawyer. However, I have been a writer for newspapers and magazines for years, and as an editor I had to keep an eye out for potentially libelous material. In short, I have a reasonably good grip on what constitutes libel.
Now then: Let’s say that one day I’m wondering around the Web, like you do, and I come across the following tidbit on someone’s blog:
John Scalzi is crack-smoking cat sodomizer. It’s true. I’ve seen the pictures.
Naturally, I am outraged. How dare someone suggest I sodomize my cat while smoking crack! It’s time to lawyer up! Or is it? There are questions to ask:
1. Is it true? I mean, if I actually do sodomize my cat and smoke crack, then I have no grounds to claim libel. I probably wouldn’t want people to know about my feline-violating, drug-huffing predilections, because it will make for a lot of awkward conversational pauses at parties and would probably keep me from being confirmed by the Senate for any really interesting government posts. But if in fact I do those things, I have no recourse. But let’s say that indeed, my urine runs clean and my cat runs without sexually-originated hip dysplasia. Next question:
2. Is my accuser aware that he’s spreading untruths? If in fact I don’t sodomize my cat or smoke crack, clearly there are no actual pictures of me doing either. If my accuser hasn’t actually seen the pictures but says he has, we’ve cleared another hurdle for libel. On the other hand, if for some reason someone has gotten creative with Photoshop and ginned up fake pictures of me, my cat and a crack pipe, and then my accuser sees them and believes them to be real, then although he’s wrong he probably hasn’t committed libel (if he created the pictures and purports them to be real, then we’re back into libel country).
3. Is my accuser’s intent malicious? If my accuser is a member of PETA and has been shocked by the faked Photoshop pictures of me cornholing my cat, then one might reasonably argue that he’s accused me out of genuine concern for the poor feline who is the object of my unwanted attentions. That’s not libel. On the other hand, if the accuser hates my friggin’ guts and wants nothing more than for me to die bastard die, then libel is back in business. Clearly, it would be good for me if the URL this accusation resides at is something like http://www.scalzisucks.com.
4. Have I been materially affected by the accusation? If someone says I’m an enthusiastic ravisher of animals, and yet my wife stays with me, my family and friends shrug it off and my employers chalk it up to the Web being the Web, then I don’t have much of a case. But, if I was about to sign a contract on a book on cats, and the publisher rescinded the offer on the basis of the rumor I love cats too much, and a concern that the cats I don’t penetrate I’ll sell for drugs, then yes, I have a case. I also probably have a case if my wife leaves, my kid is picked up by Child Protective Services and all my friends stop returning my phone calls.
Note that for a really good libel case, all of these have to be in effect. And that’s for private individuals — which is to say, normal people with normal lives. If for some reason I’m judged to be a public figure (say, due to my extremely low-bore celebrity via the Web and my published work), then I have fewer libel protections. Note also that if the information is expressed as opinion (i.e., “I believe John Scalzi sodomizes cats and smokes crack. I’ve heard rumors of photos that show this”), I’m out of luck. I’m also out of luck if the language used is “heated” (“Goddamn motherfucking John Scalzi likes to poke his fucking cat with his tiny little meat and then shove a crack rock the size of a fuckin’ rat into his crappy tinfoil pipe and suck on it like a Hoover on the overload setting”) or if the work is satire (“Scalzi the Crack Smoking Cat Violator: A Musical Play in Three Acts”).
And what do I get for it being so hard to prove I was wronged? Well, here in the US we have really excellent freedom to say what we want without worrying that opening our mouths to express an opinion will get us hauled into court — or into jail. Let’s also note, by the way, that stricter libel laws don’t actually mean that less libel happens; the United Kingdom has far stricter libel laws than the US but the UK press is just vile when it comes to rumors. Given a choice, I’ll personally take a little less protection against libel for a little more protection of free speech.
For the record: I don’t smoke crack and I don’t violate my cat, and no pictures exist of me doing either. Although if someone whomps up something in Photoshop, be sure to send me a copy. I could use a laugh.
Update, 3:47pm: Well, that didn’t take long. Note this link is so not safe for work. And yes, I laughed. A lot. Blame this guy.
Idiot of the Week: Todd Pierce
Too many idiots, too little time. My monthly award is going to have to be a weekly award now. Let’s pray it doesn’t become daily. John Scalzi has a very amusing post about Todd Pierce that links to another one, written by Teresa Nielsen Hayden. That po…
Yes, but is it libel?
If you’re like me, you live in a conceptual demi-monde in which slander, libel, and defamation have vague conceptual content. So, I am thankful to Scalzi for setting me straight. I hope he will turn this into a series. I’d love to hear his explanations…
Just wondering what the English Law of libel has to say about graffiti?
In this case a local councillor who has been a supporter (albeit non-attending) of a demonstration against a local arms-equipment manufacturer has had at least one piece of graffiti written about him on the pavements near to said demonstration.
The first of these claims “CLLR* X DOES *****”, the last word having either been scrubbed out or washed away by our ever-reliable English August rain.
The second piece reads “X FUCKS BABYS” (sic.).
The third piece, while also probably obscene, has been mostly erased, but X’s name is still visible.
While only once is X named as a councillor, the proximity and doubtless freshness of the other two pieces can be interpreted as referring to him, and, certainly in the case of the second piece, could be described as defamatory, given X’s standing as a councillor and the accusation of child abuse explicit in the graffiti.
As something on display to the public, graffiti fills the criterion of being read by a third person, so only one question remains:
Is graffiti considered a form of publication in English law?
I realise that you’re an American expert and this may be beyond your area, however you do indicate knowledge of at least some of the English law in this field and I would be grateful for any thoughts you have on the matter.
*CLLR is a known abbreviation for councillor.
P.S.: The councillor is neither a resident nor an official of this particular area of town, so some form of local, private, grudge can – I think – be ignored as a possibility.