The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A reader writes:
I think … VC/Wapo readers (including those sympathetic to Ms. Dunham) would be interested in your thoughts on whether Barry "One" (as the … Breitbart article refers to him) has a potential cause of action against Lena Dunham and/or Random House for negligence, [intentional infliction of emotional distress], false light, libel, whatever (assuming he can prove that he did not rape or otherwise have sex with Ms. Dunham as described in her memoir). At least to me, the question of whether an author can be held liable (consistent with the First Amendment) for intentionally or unintentionally (but negligently, if proved) ruining an innocent person's reputation or life, is very interesting …. And in the Breitbart article, it mentions that Barry has hired a lawyer, so legal action may be being contemplated (in the Kevin Williamson piece in National Review … Barry expresses that this is taking an immense, negative toll on him and his family).
A very interesting question, to which it turns out that there's a good legal answer (assuming we can figure out the facts).
1. Lena Dunham's memoir describes her having sex with someone named Barry, whom she labels as Oberlin's "resident conservative." Her description seems to me to leave it somewhat ambiguous as to whether Barry raped her, but it does describe some sexual behavior by Barry that at the very least reflects badly on him. There are two passages in which she describes the incident: one in which it comes across as consensual but unsatisfying, and another one that she begins by saying,
I'm an unreliable narrator.
Because I add an invented detail to almost every story I tell about my mother. Because my sister claims every memory we "share" has been fabricated by me to impress a crowd. Because I get "sick" a lot. Because I use the same low "duhhh" voice for every guy I've ever known, except for the put-off adult voice I use to imitate my dad. But mostly because in another essay in this book I describe a sexual encounter with a mustachioed campus Republican as the upsetting but educational choice of a girl who was new to sex when, in fact, it didn't feel like a choice at all.
The pages that follow, which thus seem to purportedly describe what happened "in fact," give a good number of details of Barry's alleged sexual behavior toward her; see the Breitbart News story (John Nolte, Big Hollywood) for some of those details.
2. The Breitbart News story states that there was indeed a well-known conservative student at Oberlin named Barry and that he could easily be identified by people who want to figure out who he is – and that he has indeed been so identified by many people. (I indeed managed to do this easily myself.) Kevin Williamson (National Review), a prominent critic of Dunham's, reports the same.
But the Breitbart News story also alleges that the other details in Dunham's story, such as Barry's appearance (e.g., his mustache) and campus job (e.g., his having hosted a radio talk show called "Real Talk With Jimbo"), seem to be inaccurate. And the story alleges that there was no one else named Barry who was a prominent campus conservative. From there, Breitbart News expresses doubts that Dunham actually was involved in such an incident with a conservative named Barry.
3. So those are the facts (item 1, which I can attest to personally, having looked at Dunham's memoir) and the allegations that Dunham's account is incorrect (item 2, the substance of which I can't verify personally). Assuming that the Breitbart allegations are correct, would Dunham's statements be legally actionable, if Identifiable Conservative Barry sues?
The answer doesn't require us to delve into negligence or intentional infliction of emotional distress, because this would be a classic defamation case. Identifiable Conservative Barry would argue that
- Dunham said things about him that injured his reputation with some people
- because some people reasonably identified him as the Barry she mentions and yet,
- those statements were false, in that no conservative Oberlin student named Barry actually did to her what she says was done to her, even if someone else with another name or other identifying characteristics did this, and
- Dunham knew that the statements were false, in that she knew that no conservative Oberlin Barry did this to her.
Nor does it matter that Barry's last name was not used. As the Restatement (Second) of Torts says (emphasis and some paragraph breaks added),
A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer….
Comment b. Person mistakenly but reasonably believed to be intended. If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him. It is not enough however, that the defamatory matter is actually understood as intended to refer to the plaintiff; the interpretation must be reasonable in the light of all the circumstances. It is not necessary that the plaintiff be designated by name; it is enough that there is such a description of or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended.…
It is not necessary that everyone recognize the other as the person intended; it is enough that any recipient of the communication reasonably so understands it….
[T]he defamer is subject to liability if he knew that the communication would be understood by the recipient to refer to the plaintiff or was negligent in failing to recognize that this might happen. If the recipient reasonably understood the communication to be made concerning the plaintiff, it may be inferred that the defamer was negligent in failing to realize that the communication would be so understood….
To be sure, if this sort of misunderstanding happens without fault on the speaker's part, or when it's unreasonable for people to assume the statement is about the plaintiff, there would be no liability. If I write accurately about something bad done by someone I identify only as Bill, that isn't a basis for every Bill in the world to sue me, claiming that the statement libels him. I accurately reported the facts, it's unreasonable for people to assume just based on the name Bill that my statement is about any Bill in particular, and it's therefore reasonable for me just to call him Bill.
Likewise, if I write an obviously fictional story that mentions someone named Cathy, and even give quite a few details, it's generally unreasonable for people to assume that this is about any particular Cathy (even one who happens to share the description I offered in my fictional work). At least this is so unless there's some indication that the reference really isn't entirely fictional; there's actually some interesting and controversial case law on facially fictional accounts that are nonetheless seen as implicitly making factual claims.
But say I write something that on its face seems to be, and is reasonably perceived to be, a factual claim that someone did something bad to me. And say I use a first name coupled with identifying characteristics that would lead reasonable people to perceive that the person is a particular person. People do so reasonably perceive, but it turns out that my account was wrong – the incident actually involved someone with a different first name, or different identifying characteristics. Unless I made a reasonable mistake, I would be potentially liable for defamation.
And that would be the Dunham story, if the Breitbart assertions are correct, and Dunham knew (or at least should have known) that the incident didn't involve an Oberlin conservative named Barry. To be sure, people who knew Identifiable Conservative Barry very well would realize that her story couldn't be about him (again, assuming the Breitbart report is right), since he never had the mustache that Dunham described and never worked on the radio show that Dunham mentioned.
But people who know some details about Identifiable Conservative Barry – he was named Barry, he was conservative, he was at Oberlin at the same time Dunham was – whether because they know him personally or because they track him down using those details, would perceive him as the Barry that Dunham was talking about. And the damage to his reputation in those people's eyes would be sufficient for a libel claim (again, assuming the facts are as Breitbart reports).
4. But there's one important twist: Any such libel lawsuit is dangerous for plaintiffs in this situation, even if they are entirely innocent. Right now, only a relatively few people link Identifiable Conservative Barry's name to Dunham's story, precisely because his last name wasn't used. If Identifiable Conservative Barry sues, he becomes Identified Conservative Barry, and many more people will link his name to Dunham's story. Then, even if he prevails in court, or gets Dunham to publish an apology, some people will have learned of the accusation but won't hear (or remember or believe) the vindication.
This, for better or worse (or perhaps sometimes for better and sometimes for worse), is one of the costs of libel litigation: It amplifies the original accusation, and sometimes it takes a statement that injured the plaintiff's reputation only among a few people and turns it into a statement that injured his reputation among many – again, even if he ultimately "wins" the case. Sometimes a sad reality, but a reality nonetheless.
UPDATE: I'm always delighted to see interesting and substantive comments, of which there are quite a few in the comment thread. But, seriously, enough with the "Lena Dunham is so ugly" jokes. Have a little class, and a little originality – or face the wrath of Sarcastro (who is on a roll, not coincidentally).