If you’re writing a book, especially a memoir, I’m sure you’ve wondered if you can say certain things about people like your relatives or friends. What is and isn’t protected under the First Amendment’s freedom of speech? Below is a primer on what you need to know.
The First Amendment states: “Congress shall make no law…abridging the freedom of speech, or of the press…” This is a sacred right that makes our country great. However, not everything you say is protected by the First Amendment. I’m sure you heard the phrase “It’s a free country. I can say what I want.” While correct in spirit, it’s not legally correct. Below are a few examples of what is not protected:
- Obscenity (concerned with lewd, filthy, or disgusting words or pictures)
- Defamation (false statements of fact about a person or entity that causes reputational harm)
- Incitement (speech that is intended and likely to provoke imminent unlawful action)
Defamation is broken down into two categories: libel (written) and slander (spoken). Defamation is governed by state law. This means that each state has its own definition of what is considered defamation. However, generally speaking, you need to prove four elements:
- The defendant published a false statement of fact (the statement was uttered or distributed to a person other than the defendant. Also if you republish a defamatory statement you can be considered to defame that person or entity too).
- The statement is about the plaintiff (“of and concerning that person” There needs to be enough identifying info that the reader or listener can recognize who the person is).
- The statement harmed the reputation of the plaintiff (something more than just being insulted or offended - e.g., exposing a person to ridicule, contempt, or hatred; injuring a person in business or trade; or lowering a person in the esteem of one’s peers).
- The statement was published with some level of fault (negligence for private figures, actual malice for public figures - for a good example of understanding the actual malice standard, read a summary of New York Times v. Sullivan, arguably our country’s most famous defamation case).
Some defenses to defamation are the truth, opinion, and privileges (e.g., spousal, reporting). However, be careful about opinion. Stating “I believe X is an alcoholic” may be just as defamatory as saying “X is an alcoholic” if it’s false.
Now just because you may have a defense to defamation doesn’t mean that someone can’t sue you for right of privacy if you published facts that were meant to be kept private. There are other examples of what constitutes right of privacy (which is again a state matter), but I wanted to let you know that violating one’s right of privacy should concern you too when you’re writing.
Disclaimer: The information in this newsletter is intended for informational purposes only. It is not to be considered as legal advice, or construed as such. If you have a legal issue, contact an attorney near you.