Can The 'Gist' Of A Book Be Defamatory, Even If Nothing Is Proven False?

from the chilling-effects dept

Mon, Oct 4th 2010 4:40pm — Mike Masnick

A few weeks back, we wrote about how Texas real estate developer H. Walker Royall "went on a lawsuit bender," upon finding out a book by author Carla Main that was critical of some of his development projects. He not only sued the author and the publisher, but also someone who reviewed the book, the newspaper that published the review and (most ridiculous of all) an academic who wrote a blurb praising the book that went on the book's jacket. The suit against the blurb writer was tossed out for lack of jurisdiction, and for whatever reason, the newspaper and the reviewer "settled" the lawsuit (which seems unfortunate). However, the lawsuit against the book author and the publisher has continued. We argued, at the time, that this was a clear example of where better anti-SLAPP laws are needed, but seeing as there are no such laws in Texas, the case will focus on whether or not the book was defamatory.

With the trial now underway, Main's lawyers are pointing out that the book is "political and social criticism," and that Royall has not proven she got any facts wrong. Royall's response is somewhat stunning. His lawyers seem to be indicating that even if there's nothing factually wrong, the "conclusions" drawn from those facts are defamatory. In other words, there may be nothing wrong with the book, but the analysis of those facts, as a whole, is somehow defamatory. This sounds an awful lot like "well, I don't like what she said, and it makes me look bad -- even if based on fact -- and thus, it must be defamatory."

Once again, this seems like a clear SLAPP situation, where someone didn't like the speech of someone else, and filed a lawsuit. Claiming that the general "gist" of a book is defamatory without being able to show any actually false statements seems like a real stretch on defamation law.

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Filed Under: book, carla main, defamation, h. walker royall

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Anonymous Coward, 4 Oct 2010 @ 5:03pm

Gist or GIST may refer to:

* Essence, the central idea or main substance

i would argue then that if the main idea of a book is to slander and defame someone then yes, that is unless its done in the way of "this is my opinion only and may not be true in the least"
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TtfnJohn (profile), 4 Oct 2010 @ 5:34pm

Re:
I'd argue that, in this case, where Mr Royall inserted himself into a very public and controversial use of the doctrine of eminent domain he made himself a public figure which results in him also being subject to a conclusion based on normal analysis of such things. As in "Mr Royall was enriched by this while it was unfair to the other party who was made poorer as a result. And as Mr Royall appears to have actively encouraged the municipality to exercise these rights he is part of if not the major reason for this injustice occurring."

In short he's subject to normal political speech and criticism. And he's finding he doesn't like it so he wants to silence it.

Too bad, so sad.

Of course just letting it go means it would be forgotten by all but a few but now it's becoming part of a cause celebre around misuse of the eminent domain doctrine.

Mr Royall meet Ms Streisand.
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ChurchHatesTucker (profile), 4 Oct 2010 @ 5:35pm

Re:
"i would argue then that if the main idea of a book is to slander and defame someone then yes..."

Well, that'd be one way to cut down on the UK's libel tourism industry...
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out_of_the_blue, 4 Oct 2010 @ 5:40pm

Once again, a Rich Nut with delusions of grandeur.
This one even has a name to match his insanity. Another bit of evidence in the case against The Rich; there's never any evidence contrary to the conclusion that they must be limited in their excesses or are a danger to the rest of us. They'll squander money even to argue against facts, so long as it serves their whim.
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Pixelation, 4 Oct 2010 @ 5:48pm

If someone is a total asshole, is it really defamation to point it out?
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kari, 4 Oct 2010 @ 6:18pm

I don't know what was done to this website but its almost impossible to scroll through it using an HTC Evo 4G. Please try to fix it ;/
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Anonymous Coward, 4 Oct 2010 @ 6:28pm

Re:
And...what if it is true? Like in the case in the article you're commenting on.
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Mike Masnick (profile), 4 Oct 2010 @ 6:45pm

Re:
I don't know what was done to this website but its almost impossible to scroll through it using an HTC Evo 4G. Please try to fix it ;/

Please use the "contact us" link at the top of this page to communicate such issues. That way we can actually monitor and follow through on these issues and it doesn't take the actual discussions off topic.

Thanks.
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Anonymous Coward, 4 Oct 2010 @ 8:15pm

What part of this is unclear?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I still can not understand how a lawsuit like this could possibly be constitutional. Unfortunately it seems the the entire legal system is hopelessly corrupt
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wolferz (profile), 4 Oct 2010 @ 9:08pm

Devils Advocate
Say I tell people that John slapped his wife across the face in the course of an argument.

Lets assume for the sake of argument that this statement is entirely true. Now while I've said nothing untrue... the natural conclusion from my statement is that John is abusive to his wife which is *untrue.*

You see I left out the fact that John's wife had a gun pointed at him at the time and his clumsy attempts to knock it out of her hands resulted in him slapping her. No where did I lie but the conclusion from my statements is still both untrue and harmful to John. Correct me if I'm wrong but I remember "untrue" and "harmful" being the two cornerstones of the legal definition of defamation.

/devils advocate

I dunno the details and how they apply to this case but the point I would like to make is that it is in fact possible for some one to intentionally harm some ones reputation in a dishonest way without making a single false statement. In such a case I would think intent would be the deciding factor. Were the (truthful) statements made with the intent to harm some ones reputation by misleading people.

Personally I would like to see some system in place for legally challenging such misleading statements. Our media in this country is practically built on such dishonest methods as this (telling only the part of the truth that results in the conclusions their viewers want). So long as such a system was carefully implemented (ha ha! i know right?) it could provide a means to put some honesty back into the media.
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Wolferz (profile), 4 Oct 2010 @ 9:35pm

Re:
The day you lose your job and find yourself unable to get another one because some co-worker falsely accused you of sexual harassment I think you will be singing another tune.

The First Amendment has exceptions... hate speech and defamation among them. Unless I am mistaken defamation is typically held to include false or misleading statements made that have the capacity to harm an individual's reputation in some demonstrable way.

The key there is the "or misleading" part. The fact that it exists right next to "false" indicates the acknowledgment that a statement can be true and misleading at the same time.

The problem is that defamation is often miss used (as much of the legal system is these days) by the rich and powerful to quash the free speech of their critics.

Unfortunately in any system depending on the verdict of any number of individuals there will always be bad decisions made and the rich and powerful have the money and power needed to exploit that.

That is what is unclear about all this. Simply put there need to be exceptions to free speech to protect individuals from malicious attacks on their reputation but such exceptions can be exploited do to the inherent fallibility of human nature and its inevitable presence within the legal system. A double edged sword that must constantly be monitored lest it cut the heart out of our society yet can not be taken away lest some one else's sword cut the heart out of our society.
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Christopher (profile), 4 Oct 2010 @ 11:56pm

Stretch on defamation law? No, defamation law breaks and slaps the person holding it in the face about 10K times when they try something like this.
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Christopher (profile), 4 Oct 2010 @ 11:59pm

Re: Re:
Actually, no, it doesn't have 'exceptions'. Those 'exceptions' are unconstitutional in and of themselves because there are nowhere in the Constitution.

The Freedom of Speech will NOT BE ABRIDGED is a blunt, no exceptions statement!

Now, if you are not giving someone's entire statement or the entirity of circumstances, that falls under SLANDER.

Hate speech is allowed by the Constitution, contrary to popular belief. I may not like it but it is allowed as long as you are not calling for physical violence against another person in regards to your hate speech.
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Anonymous Coward, 5 Oct 2010 @ 1:04am

Re: Re:
"The First Amendment has exceptions... hate speech and defamation among them."

Can you point out where those exceptions are listed in the constitution? I haven't seen them myself.

Hate speech is definitely not excepted.....the KKK is still around last time I checked
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Douglas Smith (profile), 5 Oct 2010 @ 4:08am

STATE LAW
Under North Carolina law, the elements for a cause of action under defamation are (1) defendant made false, defamatory statements about the plaintiff; (2) those statements were published to a third person; and (3) the statements caused injury to plaintiff's reputation. Tyson v. L'Eggs Products, Inc., 84 N.C.App. 1, 351 S.E.2d 834 (1987). The U.S. Supreme Court has ruled that "... so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Under N.C. law, in considering whether an action is defamation, we look to the N.C. state constitution, to chapter 99 of the N.C. General Statutes, to Restatement (2d) of Torts because it is cited as authority in many N.C. appellate cases, and to the common law. State Constitution Article I, § 14, of the N.C. state constitution reads, "Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse." North Carolina General Statues (N.C.G.S.) N.C. Gen. Stat. § 99 (1989) deals with defamation. Restatement (2d) of Torts (1976) Restatement (2d) at § 558 lists the elements of a cause of action for defamation: "(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." N.C.'s Court of Appeals cited § 558 of Restatement (2d) in Renwick v. News and Observer Pub. Co., 63 N.C.App. 200, 304 S.E.2d 593 (1983). Common Law According to N.C.G.S., "All such parts of the common law as were heretofore in force and use within this State, ... not destructive of, or repugnant to, or inconsistent with ... the form of government therein established, ... are hereby declared to be in full force within this State." N.C. Gen. Stat. § 4-1 (1989). Therefore, N.C. courts rely on common law in defamation actions. According to N.C. case law, defamation is either libel or slander. "In general, libel is written while slander is oral." Phillips v. Winston-Salem/Forsyth Co. Bd. of Educ., 117 N.C.App. 274, 450 S.E.2d 753, 756 (1994
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Douglas Smith (profile), 5 Oct 2010 @ 4:25am

For got Reference
http://alicemariebeard.com/onehell/samples/sample01.htm
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Anonymous Coward, 5 Oct 2010 @ 5:28am

I don't like your face, so I will kick it in. Sounds real street to me.
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Michael, 5 Oct 2010 @ 5:29am

Re: Devils Advocate
The problem I see is that you have broken this down to a determination of intent. What if I did not know she had a gun pointed at him? What if I did know, but I was stating simple facts: "John slapped his wife across the face" - how can I be responsible for the conclusions other people draw from this statement?

Litigating what people meant, felt, or intended is most often pointless. Intent is a pretty scary part of the law and very difficult to prove. Proving what someone was thinking - without them actually saying it - is not a good way to argue defamation.

I can see why there are laws for defamation that allow recourse when someone makes untrue statements (of course, the internet makes it easy and inexpensive to respond, so it could be argued that these laws are no longer necessary), but litigating true statements based on intent and context is going to be used far more to suppress speech than it will be used as recourse for harm due to defamation.
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TtfnJohn (profile), 5 Oct 2010 @ 7:37am

Re: Devils Advocate
Let's go back to something shall we?

If you follow the links you'll see the core of the suit is that Mr Royall's lawyer claims that he is a private citizen and, as such, is something of an innocent bystander in the use of eminent domain by the town where this occurred.

Read a bit deeper, not much deeper as it doesn't seem the facts are in dispute you find he and the municipality worked together to have the previous owner's title removed so that Mr Royall could build his project and profit from it.

Given this Mr Royall took a active part in a public process with the town that resulted in what the book writer sees as an injustice. The moment he did that he surrendered any pretense of being a private citizen and moved himself into the public realm much the same as any politician or activist would do.

It's a SLAPP suit pure and simple.

No one put him there. He did it himself so that he could build a project that he hoped would make money. All very well but the moment he took part in the exercise of eminent domain and encouraged it he ceased to be a private person and became a public one.

He can certainly sue for defamation but there's no doubt the speech in the book is political speech as it's analyzing a public incident where the author concludes that eminent domain was, at best, abused. Mr Royall is hardly an innocent bystander regardless of what his lawyer says based on the agreed facts.

Is that really so hard to understand?
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DV Henkel-Wallace (profile), 5 Oct 2010 @ 1:40pm

On the subject of settling
Mike, you wrote,
...and for whatever reason, the newspaper and the reviewer "settled" the lawsuit (which seems unfortunate)...
Most likely what happened is the newspaper and reviewer handed the lawsuit to their respective insurance companies, who decided that settling would be cheaper. This is a pretty common case and unfortunately encourages clogging the courts. But as with any externality it's not worth any one insurance company's time and money fighting these spurious suits, and for them to combine to fight them would likely be treated as collusion.
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Wolferz (profile), 5 Oct 2010 @ 10:04pm

Re: Re: Devils Advocate
"What if I did not know she had a gun pointed at him?"

If you can prove it then you couldn't have had intent to mislead. Case dismissed.

"What if I did know, but I was stating simple facts: "John slapped his wife across the face" - how can I be responsible for the conclusions other people draw from this statement?"

Then you were very negligent or stupid... but did not have intent... thus case dismissed. As for proving it... you don't have to. That's the fun thing about intent... the burden of proof is on the plaintiff.

"Litigating what people meant, felt, or intended is most often pointless. Intent is a pretty scary part of the law and very difficult to prove. Proving what someone was thinking - without them actually saying it - is not a good way to argue defamation."

The difficulty in proving intent is often used to keep the legal system from being abused. For example... murder charges all require that the state prove intent. Without intent the maximum charge is manslaughter. Intent applied here would help keep rich and powerful people from abusing the system as easily. Yes it would make it harder for a plaintiff to prove that he has suffered defamation in cases where he actually had... but not that difficult... after all intent is proven quite often in a great deal many murder cases every year. Look up "mens rea" for more info.

"I can see why there are laws for defamation that allow recourse when someone makes untrue statements (of course, the internet makes it easy and inexpensive to respond, so it could be argued that these laws are no longer necessary), but litigating true statements based on intent and context is going to be used far more to suppress speech than it will be used as recourse for harm due to defamation."

Everything done with the legal system will always be a double edged sword. So long as human beings are part of the legal process the potential for abuse will always exist. The important question is whether or not leaving an easily exploitable loop hole in defamation laws is worse than a couple extra "politician sues critic" lawsuits that typically go no where. The answer to that is not one I claim to have... hence why I'm playing devils advocate instead of claiming my point of view is the right one.
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Wolferz (profile), 5 Oct 2010 @ 10:10pm

Re: Re:
to both of the above comments please read this: http://www.firstamendmentcenter.org/Speech/faqs.aspx?id=15822&

You're right about hate speech though. I was reading a list of rulings regarding the First Amendment and saw it as on e and posted it without thinking or reading it thoroughly. Shame on me (seriously).

But yes... almost all amendments to the Constitution have exceptions. For one of the most notorious examples look up the relationship between martial law and habeas corpus.
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Wolferz (profile), 5 Oct 2010 @ 10:15pm

Re: Re: Devils Advocate
As I already stated (but perhaps not clearly enough) I'm not arguing the specifics in this case... I'm arguing against the idea that truth yet misleading statements can't be defamatory.
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Martin LaBelle (profile), 6 Oct 2010 @ 1:58pm

Re: Re: Re:
Keep in mind that you and Christopher are making separate arguments. You are arguing that our comomn law system has established exceptions to the black & white diction of the Constitution.

Christopher is arguing that these exceptions are null and void, because the constitution does not allow common law courts to create exceptions; that they are only permitted to interpret what the written words of the Constitution mean and nothing more.

If I've placed the wrong argument before either of you, then I am sorry; but the issue of the Constitution's Supremecy, is a personal hammer of mine.
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Martin LaBelle (profile), 6 Oct 2010 @ 2:03pm

Are written books public discourse?
I'm not especially behind this idea, but for the sake of argument:
Might we see the paid exchange of information between an author and the reader of a book as a protected private conversation?

This of course raises other pie in the sky loopholes:

My web server is my personal property.... If you electronically access it you are accessing my personal effects (or papers). You are not consuming public media, you are visiting my personal information system. How can what I say on my own property be considered public conversation.

Like I said just a thought experiment, love to here your thoughts
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Dave (profile), 7 Oct 2010 @ 12:12pm

Re: Are written books public discourse?
I dont think you can make that argument. If I own a building in a major city and decide to paint a giant mural on it with a particular message in mind (insert your pet annoyance here). Although the message has clearly been created within the confines of personal property, it is on public view. Therefore it is a public conversation.

A similar example happened during a St Patricks Day parade where a drunk couple decided it would be fun to have sex in the window while watching the parade, in full view of parade attendees. The cops showed up and charged them with public indecency because they were, in fact, in public even though they were on private property at the time.
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Wolferz (profile), 7 Oct 2010 @ 8:58pm

Re: Re: Re: Re:
Yes I considered that when going through the details.

I agree that it is dangerous for judges and legislators to create exceptions to the constitution without special restrictions (such as the additional votes needed for a constitutional amendment for example).

At the same time I think it would be unwise for the first amendment to stand as it is. The constitution was meant to evolve with the changing times and, frankly, the current system for "evolving" it is extremely slow and cumbersome. Too much so.

A hundred years ago defamation was barely an issue. Worst case scenario you had to move to a different town a couple miles away and start over. In most cases you could just call a town hall and set the record straight. With the advent of motorized vehicles, radio, television, and now the internet, communities have become too big for the "set things straight at a town meeting" approach and plus the damage caused by defamation extends far outside our communities. And no, those who are being defamed can not use the same radio, tv, and internet to set the record straight. Defamation is now a MUCH more significant problem than it was before the industrial revolution.

Unfortunately over 90 years after it started becoming a serious problem the constitution still makes no allotment for it.

I think there should be a way to make minor amendments to the amendments expanding or limiting their function without overriding their *intended* function. Such should be more difficult that "the supreme court said this" or "48 out of 50 states passed laws agreeing to that" yet far easier than the current amendment process.

These are just some minor thoughts I've had. I've not really taken significant time to research the details so I acknowledge that I could be barking up the wrong tree. However... ultimately... I do not agree that defamation should be protected speech. Just as I do not believe child porn, perjury, blackmail, or threats should be protected speech.
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Martin LaBelle (profile), 8 Oct 2010 @ 1:53pm

Re: Re: Are written books public discourse?
Yes but in the case of the book, I have a reasonable expectation that you will pay to be exposed to my point of view. That you knowingly enter into a paid exchange of personal opinion. If I write a book condemning Christians as ritualistic cannibals: I maybe offensive, and harmful to the Christian faith. However I do not think they have a legal case against me. However much they disagree, their proper recourse is to write a better book that explains why they consume the symbolic flesh of a 2000 year old Jewish carpenter. They are even free to attack my book, explain the flaws in my logic, and if they wish engage in personal attacks against me. This is the way of public discourse. It is not prudent to outlaw ad hominem attacks; but it is necessary to teach the people to recognize all forms of logical fallacy
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Martin LaBelle (profile), 8 Oct 2010 @ 2:01pm

Re: Re: Re: Re: Re:
In the case of the child porn, blackmail et.all I quite agree. However these things are crimes on their own. The act of speaking does not change the inherent underlying illegal act. It is illegal for me to break into your home computer to leave a text document there indicting your behavior. The fact that I have the right to indict your behavior is irrelevant to the fact that I illegally accessed your computer. We will have to agree do differ on the matter of a minor amendment process. I believe that the government unwieldy already; that more power to do things will only make it more so. I reserve to the right to change this opinion as age bestows wisdom upon me... Till then we will have to differ.
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Androgynous Cowherd, 11 Oct 2010 @ 11:37pm

I can see why there are laws for defamation that allow recourse when someone makes untrue statements (of course, the internet makes it easy and inexpensive to respond, so it could be argued that these laws are no longer necessary)

That fails as soon as there's any attacker/defender power asymmetry.

Example #1: the attacker is a big name online, say, Google, and plasters their negative statement about you in 50-point type on their front page (which nobody else can edit or tack comments onto).

Example #2: you're attacked by a gang, rather than a single individual, and by sheer weight of numbers they can post 50 defamatory comments in the time it takes you to write 10 rebuttals. Guess which side wins the war for google juice and claims all the top search hits under your name? Unless you can recruit four allies willing to make defending you at least temporarily a full-time job, it won't be you.

Example #3: you're attacked by someone with fewer work hours than you who can devote 16 hours a day to smearing you online. You can't devote more than five or six, so for every attack you rebut you've got to let one or two more go by unchecked. Worse, you do that at the expense of giving up all leisure activities and relaxation, effectively working 16 hours a day yourself. Anyone who hates you more than he loves leisure can force you to give up leisure time, effectively via blackmail (he causes negative consequences if you don't). P!ss anyone off, in other words, and your life is for all intents and purposes over. And you don't even have to have been really bad; there are psychos out there that mark you in their sh!tlist for just plain looking at them when they were feeling especially strongly that day that the CIA was out to get them.

A similar example happened during a St Patricks Day parade where a drunk couple decided it would be fun to have sex in the window while watching the parade, in full view of parade attendees. The cops showed up and charged them with public indecency because they were, in fact, in public even though they were on private property at the time.

And how, pray tell, does putting on a show for the paradegoers harm anybody?

It's high time all these victimless crimes were struck down. Why the hell wasn't there a Constitutional amendment added at some point stipulating that the government could not forbid an activity unless the activity caused provable harm? Hell, such an amentment would subsume much of the First Amendment (minus separation of church and state, and the harm-causing exceptions to free speech) and some other stuff, such as (responsible) keeping and bearing of arms.
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