Journal of Free Speech Law: "Fiction, Defamation, and Freedom of Speech," by Prof. Collin O'Neil

An article from the Defamation: Philosophical and Legal Perspectives symposium, sponsored by the Center for Legal Philosophy at UC Irvine.

The article is here; the Abstract:

Speech damages someone's reputation when it leads others to believe that that person has done something that reflects poorly on their character. When that belief is also false the reputational damage is undeserved, and it is the point of American defamation law to protect individuals from suffering such undeserved reputational damage.

It is easy to understand why individuals would need protection from false and derogatory claims made about them in works of nonfiction, such as journalism, documentaries, and biographies. But it is not immediately clear why individuals would also need protection from fiction. Although authors of fiction often base their fictional characters on real people, they do not typically make real people characters in their stories. Even when they do put real people in their stories and depict them as doing bad things, the audience is still usually meant only to imagine the real people doing those bad things.

Nevertheless, some works of fiction are not only about real people but also do real and undeserved damage to their reputations. It may not be true, as has often been alleged, that Aristophanes's comedy The Clouds gave Socrates the reputation for rejecting the gods and corrupting the young that later led to his execution. But readers of parodies of news articles published on sites like The Onion and The Babylon Bee are sometimes duped, especially when they are already inclined to think poorly of the public figure that is being ridiculed.

Of course parodies are believed only when they are not recognized as parodies. But there are other genres of fiction that mix facts into the story, such as biofiction, biopics, and docudramas, and it is not always easy for audiences to distinguish what the author is making up from what the author is, or ought to be, trying to get right.

The biographical drama Amadeus suggested that Salieri poisoned Mozart, re-popularizing an old rumor about Salieri that the filmmakers must have at least strongly suspected was false. Salieri, being dead, is in no position to bring a lawsuit. But the villain of the docudrama When They See Us, Linda Fairstein, is alive and is suing Netflix and Ava DuVernay, the director, for defamation.

Fairstein was chief of Sex Crimes Prosecution during the investigation and prosecution of the "Central Park Five," five Black and Latino teenagers who were convicted of the beating and rape of a jogger in Central Park but who were exonerated years later after a serial rapist whose DNA was found at the scene confessed to the crime and said that he had acted alone. Fairstein alleges that she was defamed in several scenes in the docudrama, including in a scene where she is depicted as concealing potentially exculpatory evidence from the defense and a scene where she is depicted as instructing officers to use harsh interrogation techniques. As a result of her depiction in When They See Us, Fairstein's publishing contract was canceled (she had become a best-selling mystery writer since leaving the DA's office), her literary agents dropped her, #cancellindafairstein trended on Twitter, and Glamour magazine expressed regret they had named her Woman of the Year in 1993.

As the docudrama When They See Us makes clear, fiction about real people can do serious damage to their reputations. It is another question whether it is ever appropriate to hold an author of fiction legally liable for that damage. One aim of defamation law may be to reflect our pre-legal moral duties of care to avoid damaging others' reputations. If so, one important consideration for determining how defamation law should handle fiction is whether and when an author of fiction would count, morally speaking, as having wrongfully damaged someone's reputation.

But defamation law is also answerable to another moral value, namely, freedom of speech, that may be in tension with these pre-legal duties of care. Even when it is plausible that an author of fiction has wrongfully damaged someone's reputation, there might still be a reason of freedom of speech, even an overriding reason, to shield such an author from liability.

This Article will address the question of what limits, if any, freedom of speech would place on holding authors liable for the reputational damage they cause with fiction. By "freedom of speech" I will not be referring to the First Amendment but rather to one conception of the moral idea underlying it. According to this conception, the limits that freedom of speech places on the scope of authors' liability for causing false and defamatory beliefs are whatever limits are necessary to adequately protect our interests as potential authors and audiences, and whose costs are acceptable in terms of other interests. To apply this conception, it will be necessary to identify our interests as potential authors of and audiences for fiction about real people, and to assess how these interests would be affected by different limits.

Ultimately, I will argue that freedom of speech is consistent with holding authors liable for reputational damage caused by their violations of fiction's "veracity rules" and for reputational damage caused by mistakes that their target audience would be expected to make. But liability for beliefs that are traceable to mistakes that only an author's incidental audience would be expected to make is, I will argue, prohibited by freedom of speech, so long as the costs of that protection remain acceptable.