RPS: Writing Under the Influence
by Kit Mason

I saw a post from someone on a private list recently, asking whether it was okay to write slash stories about real people in a lawsuit, using their real names but saying that they did different things than what really occurred.

My overwhelming reaction was one word: stupid.

Let me supply a small lesson in legal reality and political tactics here, based on the courses I've taken in communications law and practical modern politics. Any of you who have more education in these matters than I have, please feel free to let me know if I'm not current in my definitions.

There are nice, polite, legal words concerning writing and publishing stories saying that real people did things they never did.  They are said by polite attorneys in their $600 suits, in front of judges in their official robes. Those words include, but are not limited to: libel, slander, invasion of privacy and defamation of character.

A few informal definitions, for those who aren't sure whether this applies to them:

Libel is a written statement that is a lie about a person, that is published and made known to the public. It says that person did something he or she did not do. If you write and publish a story saying that George killed Martha when he didn't do it, that's libel. It's a lie.

Slander is similar to libel, except that it is usually spoken rather than written. However, I've heard attorneys discuss the possibility of considering various kinds of speech online as slander rather than libel, so it may well be possible that something said in an online chat could at some point be considered slander in court. (This doesn't mean I think people should not chat, or should not discuss matters of common interest -- it means that if you tell a lie about a real live person that is published online and that person takes you to court over it, it might be considered slander instead of libel.)

To continue:

Invasion of privacy sounds like a simple matter, but it's not. In the United States, public figures are considered to have forfeited a portion of their privacy under the law in return for their public status. This applies, in particular, to people who have sought public notice as part of their occupations, such as actors and politicians. It's pretty hard for someone who's purposely put himself in the public eye to claim that his privacy has been invaded; however, actors who have consistently divorced their private life from their public life might be able to do it. I wouldn't place a bet against it happening.

If you write and publish a story about a real person and say, in that story, that the real person had an affair with a second real person who, in reality, is a friend or co-worker, you could be invading those people's privacy -- unless each of them has personally given you permission to write about them. In that case, it may be biography or fiction but it probably wouldn't be invading privacy.

However, if in this story, even this story that they said you could write, you say something like "George and Jack slept together," and either George or Jack has spent a career and a great deal of time in public being seen with Jane and Carol as bedmates and not with each other, they might not be pleased with you. George may well say that you have defamed his character by claiming that he slept with Jack. Jack's wife, Carol, may not be too pleased, either.

Why is this important?  George and Jack make a living from their ability to portray manly men who can defeat the enemy and get the girls.  This appeals to the mainstream viewing public, and pays their bills.  They are going to be upset if it looked like your story might keep them from getting a job on the next movie, or the one after that.
What's my point?

All of these words I'm defining and explaining describe activity that a judge and jury may well consider as illegal. How illegal? You could go to prison for it, or pay million-dollar fines. If you don't believe me, go to any legal database or law library -- or any newspaper archive or online news site -- and look up judgments and fines and damages in court cases concerned with libel, slander, invasion of privacy or defamation of character. These judgments will talk about such things as actual damages and punitive damages, but what it all adds up to is a lot of trouble, pain, public humiliation for you, and serious changes in lifestyle. If the charges are misdemeanors, you won't lose your right to vote as a side effect if a court convicts you of any of them, but it does mean that for the rest of your life if you're applying for a job and the application wants to know whether you've ever been convicted of a crime ... you have to tell your prospective employer just how stupid you were.  If they are serious enough to be considered felonies, (which I really doubt but I'm not conversant with every law in every state), a person convicted of a felony loses his or her right to vote, and may lose other legal rights as well.

The primary legal defense against charges of libel or slander is the truth.  Can you prove, irrefutably, that what you say happened is what actually happened?  And, if you know these people personally, the judge will want to know if you have a grudge against them.  If you had any kind of difference of opinion with the people you wrote about, the judge or jury might decide that you acted with malice -- that you meant to harm them by putting vicious rumors out about them in public.  If malice is involved, the penalties are much higher fines and longer prison time.

Think about this. Think about this in relation to writing and sharing stories on the Internet about real people. (And don't get me wrong -- "sharing" is just another word for "publication" when you go to court.  Courts in the past have considered 'publication' to include passing a piece of paper from one person to another.)

Think about this. Is real-person slash worth making serious, life-altering changes to the rest of your life?

I'm not saying whether you should write it or not. That's up to you.  But I am saying that putting it out on the Internet is simply asking for trouble. And I don't want to hear that it's legal in other countries, or encouraged in other cultures, because that won't mean a thing when you're in a courtroom in the current right-wing, conservative-retrenching version of America.

Here's the practical political reality:  this isn't the 1960s or 1970s any more. This is not a time when liberalism and radical thought are particularly acceptable in political, legal or governmental circles. This is a time when the backlash against "promiscuity" and "sexual misbehavior" and "pornography" is strong, and when the vast majority of judges in our fair land are right-wing, hard-line, law-and-order, by-the-book Republicans.

And if you go out of line, they'll throw that book right at your head.

Don't believe me? Check out the penalties in your particular state's laws concerning these things; most states have put their law codes up on line so they can be searched. See for yourself. When you mess with someone's reputation in public, you mess with that person's livelihood -- and this isn't taken lightly.