Actress Lindsay Lohan and her mother Dina filed a defamation lawsuit against Fox News, Sean Hannity, and Hannity’s guest commentator Michelle Fields on February 2 over allegations that the mother and daughter did cocaine together.

The alleged statements occurred on a February 4, 2014 Hannity episode where Fields and Hannity discussed celebrity drug overdoses. Fields can be heard saying, “Lindsay Lohan is doing cocaine with her mother.”

Mediaite.com has a clip of the segment, which you can view here.

The Lohans are seeking compensatory and punitive damages and “will continue to suffer severe mental and emotional distress; embarrassment and humiliation; pain and suffering; and economic loss, including loss of income, entertainment and acting contracts, present and future diminished income and economic opportunities,” according to E!.

Moreover, E! further reports that a Fox News spokesperson issued a statement saying, “We will defend this case to the fullest. The remark about which Lindsay and Dina Lohan complain was made on live television by a guest nearly a year ago. We removed the segment from our archives altogether last February and also apologized on-air. At that time, the Lohans did not make any demands for money, and we are surprised they are doing so now.”

A big issue in the case will likely surround when Fox News took down the segment. Nevertheless, I want to talk about a more elementary, and arguably more interesting, area of defamation law that will have an immediate effect on the case’s outcome.

In slander cases, the first question that needs to be asked is if the statement is true or false. If the statement is true here, then Lohan’s case will not succeed.

If the statement is false, victory or defeat in slander cases comes down to various burdens of proof that a potential plaintiff needs to prove. Burdens of proof in a slander case vary depending on whether the plaintiff is a private citizen or public figure. Since the younger Lohan is a global celebrity, she will likely qualify as a public figure, and in particular a general purpose public figure. Being a general purpose public figure, she will have to prove that Fields’ statement was made with knowledge that the statement was false or that Fields said the statement with a reckless disregard to the statement’s falsity. In other words, Lohan will have to prove that Fields made the statement with actual malice.

Lohan’s mother may classify as a different type of public figure, that is, a limited purpose public figure. A limited purpose public figure is someone who is a private citizen who thrusts herself into a public controversy. Limited purpose public figure must also prove that a defamatory statement was made with actual malice. Nevertheless, an argument can be made that Lohan’s mother is a general purpose public figure because of her Living Lohan fame.

Regardless, given the recent multimillion dollar libel verdict in favor of Jesse Ventura, I doubt that Fox News will want to prolong this issue all the way to trial, despite its statement that it will defend the case to the fullest. I will be surprised if the case is not settled out of court.

Editor’s Note: A previous version of this article referred to Lohan’s suit as libel; the suit is one of defamation.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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There has been a surge lately in a certain category of books on Amazon and Barnes & Nobles’ websites: memoirs. Many people think that they have something new or unusual to share with the world, and they share it through self-publishing, or in some cases, market publishing. These works talk about everything from living with drug abuse to parenting a child with Autism. For authors–especially those who self-publish–when it comes to the legality of what you are saying who you are naming, it can quickly become a slippery slope. This debate has made news out of many memoirs–from A Child Called It to the latest drama with Lena Dunham’s Not That Kind of Girl. So legally, what can an author say, and what can’t be said? How do you walk that thin line between complete honesty in your own memoirs and what is legally permissible to divulge about other people? Read on to learn when you can name names in memoirs, and the details behind some of the most famous cases that have shaped opinion on the subject.

What’s the legality behind “naming names?”

In an article with Writer’s Weekly, legal expert Howard G. Zaharoff says there are two ways to tell if you should name names. The first has to do with the actual law of the land: “…U.S. law prohibits defamation, that is, oral or written falsehoods that hold the subject up to scorn or ridicule. Every negative statement you make about a living person must be true and, ideally, supported by evidence.” So you can name names, as long as everything you say is true. But it goes a little deeper than that, as there have been many cases where people truthfully name names and still get into legal trouble.

The second way requires a little more discretion: “The right to avoid disclosure of truthful but embarrassing private facts is the first right,” explains Zaharoff. “For example, I am reading John Sandford’s latest Prey novel, in which a well-known politician is accused of having sex with an underage woman. She offers proof that she had sex with him by describing two semicolon-shaped freckles on his testicles. Unless they are relevant to an important and truthful account you need to tell, I would avoid that kind of disclosure.” While that image is shocking, it is something that a writer probably would not need to share in a written piece–it does not add interest or pique curiosity. Try not to reveal anything too personal or embarrassing about whomever you are writing about.

Legal action is tricky, because in the end, it is probably only going to be the writer’s word versus that of the plaintiff. Even if you do not lose the lawsuit, you will still have done some damage to your reputation and to your book. So on to the real question: how do you tell your story without risking litigation?

• Disguise as much personal information as you can.
• Try not to describe physical appearances; or change physical appearances.
• Do not use biographical information to describe why a person did something.
• Use a pseudonym if at all possible.
• Talk to a lawyer before you publish the book.

But the question is, again, how authentic can your story be if you are fabricating characters? Truthfully, if you want your memoir to be authentic, you can’t change very much at all about the character’s upbringing, education, career, appearance, or even economic status–that makes up a person’s character. Is it enough to change a name?

Let’s look at some of the most famous cases where an author faced possible legal action for naming names.

Augusten Burroughs’ Running with Scissors

Augusten Burroughs had a close relationship with Theresa Turcotte throughout his life. In fact, it was Burroughs’ relationships with Turcotte and her entire family that inspired his wildly popular memoir Running with Scissors, which chronicles his life from the ages of nine to 17. During most of this time, Augusten lived with the family of his mother’s rather unorthodox psychiatrist. Following his mother Deirdre’s first minor psychotic break, she began to see Dr. Finch. Before long Burroughs’ parents divorce and (SPOILER ALERT) his mother reveals that Finch had been controlling her through medication.

Vanity Fair explains that, “The character based on Theresa is named Natalie Finch, and in her first appearance she is described as a ‘ratty’ 13-year-old. In the next reference she has ‘long, greasy stringy hair and dirty clothes.’ In the next five pages she is described ‘spilling crumbs down the front of her striped halter-top’ from a tube of Pringles and wiping ‘her hands on her bare knees’ and using the word ‘cunt.’” The woman who inspired the character, who now works professionally for the University of Massachusetts Medical School, was taken aback.

In subsequent press interviews, members of the Turcotte family cried foul on many of the accusations that Burroughs made. They do not call everything into question, including some of the accusations about their controversial father. But of course in order to file a suit, the family would have to go public, which could be even more damaging if they lost.

The family took both Burroughs and the publisher to court, where they came to an agreement that Running with Scissors would no longer be called a memoir. Burroughs’ new acknowledgments note at the back of the book will say that the Turcottes “are each fine, decent, and hard-working people.” Financial terms of the settlement are completely private. Sony Pictures made a deal with the family before releasing it as a movie.

Burroughs won in this case, saying: “I’m not at all sorry that I wrote [the book]. And you know, the suit settled–it settled in my favor. I didn’t change a word of the memoir, not one word of it. It’s still a memoir, it’s marketed as a memoir, [the Turcottes] agreed one hundred percent that it is a memoir.”

Not That Kind of Girl by Lena Dunham

Lena Dunham, actress and outspoken feminist, was sexually assaulted while studying at Oberlin College. Anyone who has read her memoir or seen an interview with her in the last few months during its publicity tour will know this, because in Not That Kind of Girl, she details exactly what happened to her. But now she is being called an unreliable narrator by some people associated with the college.

According to the Washington Post:

‘Barry’ the purported assailant in Dunham’s ‘Not That Kind of Girl,’ is characterized as Oberlin College’s ‘resident conservative,’ suggesting that such a designation is rare at that Ohio bastion of liberal politics. He is described in considerable detail, sporting a flamboyant mustache and purple cowboy boots, working at the campus library and hosting a specific radio talk show. The book’s copyright page acknowledges that ‘some details and identifying details have been changed.’

When questioned why she decided to publish her account, she said, “I hoped I might inspire others to share, and that forming these connections would assist us in healing.” She then continued: “There is no right way to survive rape and there is no right way to be a victim. What survivors need more than anything is to be supported.”

Random House, which reportedly paid more than $3.5 million advance for Dunham’s book, has offered to pay Barry’s legal fees, but made no further comment on the way Dunham’s book was fact checked or edited for names. Future editions will make it clear that Barry is supposed to be a pseudonym.

Though we don’t know the end of this one yet, knowing the public’s love/hate relationship with Dunham it is bound to get interesting.

For anyone who has read the book, it seems that Dunham’s intentions were not to shame the man who did it,  but rather to raise awareness of the fact that things like sexual abuse and rape happen on college campuses everywhere–even those that are progressive. Dunham is known to be a hot topic in the public eye, and people tend to jump on her case whenever she does anything. Still, as someone who is not a first time writer–she has awards and a lot of media attention from writing Girls–she probably should have known better than to use an actual person’s name and exact likeness in her autobiography.

Conclusion

Memoirists walk a very fine line because many of them have also written fiction, including Dunham–who has blurred the lines with her book and her television show Girls–Binjamin Wilkomirski, and James Frey. The brunt of the responsibility is on them to write honestly, precisely, and clearly about their pasts. Readers also have to realize that each story is told from the perspective of the writer–not necessarily who the included stories are about. Geoffrey Wolff wrote The Duke of Deception about his father, a pathological liar, whose fantastical stories he studied. “I’m going to write everything I believe to be true,” he says. “The writer knows memory bends, but everything I write I believe to have happened.”

Resources

Primary

Buzzfeed: Lena Dunham: Why I Chose To Speak Out

Additional

Vanity Fair: Ruthless with Scissors

Telegraph: The minute you tell me your story – it’s mine

USA Today: Burroughs Settles Lawsuit with “Scissors” Family

Writers Digest: Will I Get Sued if I Use Real Names in my Memoir?

Creative Penn: 7 Mistakes to Avoid When Writing Your Memoir

NPR: Augusten Burroughs’ Mother Speaks Out

Washington Post: Lena Dunham and the damage done by false accusations

The New York TImes: The Problem with Memoirs

Editor’s Note: This post has been edited to replace a source that has been taken off the web. 

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post The Gray Area in Memoir Writing: When Can You Name Names? appeared first on Law Street.

Conservative media personality Glenn Beck has been known to make outrageous statements. But now, one of his assertions could land him on trial.

A 20 year old Saudi Arabian student, Abdulrahman Alharbi, has filed suit in the U.S. District Court in Boston charging Glenn Beck with defamation. The international student was a survivor of the Boston Marathon bombings, and was questioned (along with others) by authorities after the incident and was found to be uninvolved with the violent plan and was released.

However, even after Alharbi’s release and the identification of the Tsarnaev brothers as the true suspects of the terrorist attack, Glenn Beck used his radio show to urge the U.S. government to release information on the supposed third suspect, Alharbi. Beck claimed the student was affiliated with Al Qaeda and ‘the money man’ behind the attacks. He also claimed that Alharbi had been officially deemed a terrorist by the U.S. All of the above accusations are, of course, untrue.

What is the legality of defamation, and can Beck be convicted?

According to the Legal Information Institute at Cornell, in order to prove defamation has occurred, four criteria must be met:

1. A false statement purporting to be fact concerning another person or entity.

2. Publication or communication of that statement to a third person.

3. Fault on the part of the person making the statement amounting to intent or at least negligence.

4. Some harm caused to the person or entity who is the subject of the statement.

With this information in mind, it seems that Abdulrahman Alharbi has a good chance of receiving justice from Glenn Beck’s slanderous comments.

Glenn Beck’s comments about Alharbi were stated as facts. Beck labeled the student as an ‘al Qaeda control agent’ and claimed that Alharbi was the source of money behind the Boston Marathon bombings. He clearly labelled Alharbi as a terrorist, an assertion of a factual statement that in actuality was untruthful. In fact, the FBI had interrogated Alharbi and found him to be completely innocent. Therefore, Beck created a falsely factual statement about Alharbi.

Glenn Beck communicated his statements about Alharbi to a third party: his radio listeners. Beck did not only state the above falsehoods about the muslim student, but he publicly communicated them to the listeners of his radio broadcast. In making his assertions known to others, he caused his listeners to be influenced by his statements, and many of them may have believed him (though why anyone would believe Glenn Beck is a true mystery). The second criterion for the proof of defamation has been met.

Glenn Beck is clearly the one at fault for his statements, whether they were made intentionally or with negligence. Glenn Beck has said a lot of crazy things throughout his career as a media personality. He has espoused ridiculous conspiracy theories, called President Obama both Hitler and a communist, and list continues. Sometimes, it can be difficult to determine whether he says all of these things for entertainment value or whether he truly believes what he states on the radio or television. Nevertheless, whether Glenn Beck intended to target an innocent individual or failed to properly research and establish if there were any merits to his claims, Beck is liable for defamation. Beck has continually failed to provide any evidence whatsoever to support his assertion that Alharbi was a terrorist involved in the Boston Marathon bombings. Unless Glenn has miraculously found some evidence that the FBI has overlooked, it’s not looking good for him.

Finally, but most importantly, there has been some harm caused to Abdulrahman Alharbi due to Glenn Beck’s wrongful statements. Alharbi’s lawyers have stated that “Alharbi’s reputation has been substantially and severely damaged” by Beck’s assertions. The student has received many harmful and accusatory messages after Beck publicly and falsely accused him. Beck’s claims have wrongly led others to believe that Alharbi was involved, and although no threats or physical harm have come to fruition, the student has suffered great emotional distress. The fourth criterion in establishing defamation has been met: Beck’s falsehoods have impacted the personal life of Alharbi and changed how others view him.

As all four criteria for establishing defamation can be proven in court, Glenn Beck is clearly liable for the defamation of Abdulrahman Alharbi. The student deserves justice and payment for the damages that Beck’s lies have caused him.

After the news of Alharbi’s filing in court broke, Glenn Beck has been unusually quiet. He has refused to comment in newspapers, and even his twitter account has fallen silent. Perhaps this means that for once, Glenn Beck realizes that he has gone too far.

[Washington Post] [Politico] [Cornell]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

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This week Law Street broke the story of the FBI’s latest violent crime data — if you haven’t checked it out yet you definitely should. This week, though, I want to talk about crimes of defamation, because though they are rarely discussed, they have similar ability to do serious harm to a person’s life. These are caused by careless, negligent, and often malicious words of one person against another. Some of these people are just talking to hear their own voices, and some are liars — there is a special place in hell for liars.

Crimes of defamation are rarely talked about on a large scale because, really, how do you quantify them?  Where do we draw the line between “Freedom of speech” and “defamatory content?” The area between the two is gray, but the laws exist to determine what is casual conversation and what is illegal.

The Supreme Court defines defamation as a four-element offense, which requires:

1. A false statement purporting to be fact concerning another person or entity;
2. Publication or communication of that statement to a third person;
3. Fault on the part of the person making the statement amounting to intent or at least negligence;  and,
4. Some harm caused to the person or entity who is the subject of the statement. 
   

Some states, like New York, take these federal guidelines a step further and determine various rules for defamation depending on the person being defamed. The first category is for “private” people — a group into which most of us fall. Private people are more broadly protected. If you negligently say something that is defamatory against me, and the above four elements are met, you’ve broken the law. It’s that simple!

New York also has two other classes: public official and public figure. President Barack Obama is a public official; Kim Kardashian is a public figure. (Get the difference?) These people have taken steps to thrust themselves into the public consciousness, and with widespread notoriety comes widespread ridicule and judgment. I believe the legal term is “Mo Money, Mo Problems.”

When dealing with Kim Kardashian, President Obama, or any other public person, New York mandates that a fifth requirement must be met: the defamatory speech must be malicious. Malice requires a specific intent to cause harm to a person — it’s a tougher hurdle to jump, but the rewards are much greater. When a U.K. newspaper claimed that Liberace was gay in the late 50s, he sued it for defamation and libel and was awarded a large amount of money. Tom Cruise won a similar suit, and let’s not forget when Lindsay Lohan tried to sue E-Trade for their drunk baby named “Lindsay.”

Liar, Liar Pants on Fire

The law says that truth is an affirmative defense to any claim of defamation. That is, if the defamatory statement is based on a true story, the speech is within the bounds of the law. This makes sense, right?  If you are a known thief, and someone tells their best friend that you steal, that is totally okay.

What’s not okay is when the defamation occurs and is based on untrue information. The law recognizes that the power of words and one’s reputation can carry a person very far, and does its best to protect an otherwise innocent person from being victimized by lies and rumors.

The point of these defamation laws is to combat that victimization. Because of these laws, an unfairly accused or viciously maligned person can stand firm in her innocence or his correct assertion. An easy way to do this is to have an adjudicatory decision in your favor, i.e. you’ve gone to court and won. In other words, proof is of paramount importance when attempting to bolster one’s argument in a defamation case.

“Show Me the Receipts!”

There are various ways to determine if something is true or false, and one of the easiest ways to make that determination is to review the record. Courts and triers of fact rely on hundreds of thousands, likely even millions, of pages of documents annually in order to parse out the truth from all of malarky. That is why law schools across the country focus on organization, meticulous record keeping, and the importance of creating a paper trail. It’s why we create elaborate filing systems, why every document is backed up, and why everything is committed to writing. The quickest way to piss off a lawyer is to make an assertion without substantiating evidence.

50 Cent, the Poet Laureate of the early 2000s, put it best when he said, “I talk a lot of shit, but I can back it up.”

The moral of the story is that crime is a problem, but we need to broaden the discussion. All criminal activity is reprehensible, and when the law is broken there need to be consequences. The law exists so that criminals don’t do whatever they want to do, and the same preclusions apply with words.

And if all else fails, don’t lie.

—

Peter Davidson is a recent graduate of law school who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Tweet him @PeterDavidsonII.

Featured image courtesy of [Angie Linder/Christina via Flickr]

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Peter Davidson II

Peter Davidson is a recent law school graduate who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Contact Peter at staff@LawStreetMedia.com.

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