Betwixt Rocks and Hard Places
When I posted last week that my book, Dear Will: The True Story of a Mother Who Never Gave Up, had been withdrawn by its publisher, my friend Kate Wooten asked this question on Facebook: “Can you self-publish it to Kindle so I can read it?”
Unfortunately, the answer is no. I’m caught between more than one rock and more than one hard place.
You can decide which are the rocks and which are the hard places but here are the players:
- Libel
- Invasion of Privacy
- Public Figures
- Private Individuals
Here’s the expert version of the issue:
Two lawyers explain the problem here.
And here’s the executive summary including the key part left out of Jassin and Schechter’s book title:
- If I publish that you have 101 speeding tickets and you don’t, that’s libel. If you see me, I will lose.
- If I publish that you have 101 speeding tickets and you do and you’re a private individual, that’s invasion of privacy. If you sue me, I will lose.
- If I publish that you have 101 speeding tickets and you do but you’re a public figure, I will probably win the lawsuit you might file but I’ll have spent a fortune defending myself.
Major publishers carry insurance against the risk of libel and invasion of privacy lawsuits. Small and medium-size publishers typically do not, and the coverage is, for all intents and purposes, impossible for an individual author to obtain.
And while telling the truth is a great defense against a charge of label, it’s an admission of guilt against a charge of invasion of privacy!
For my book, the libel part was easy. My book doesn’t contain false statements. In fact, most everything in the book is a matter of public record in the form of court records of the legal proceedings. However, that’s still not to say that someone mentioned in the book can’t sue me for libel and drag me into court to defend myself, which can—quite easily and very quickly—cost tens of thousands of dollars.
As to invasion of privacy, what constitutes a public figure? Is an officer of the court a public figure by virtue of their position? Again, it could cost tens of thousands of dollars to argue that point. Ditto for expert witnesses. And, mining tonight’s Oscar nominees for analogy fodder, unless you’re Daniel Day-Lewis’s best friend or Anne Hathaway’s little sister, your friends and family members are probably private individuals.
So how are the tell-all’s we see on every bestseller list possible? Well, they’re either published by major publishers who have excellent insurance coverage or they’re published by people with nothing to lose. If I didn’t have two cents to rub together, I’d put out an e-book version of Dear Will in a heartbeat. As it stands, I’m not prepared to risk my children’s inheritance in order to publish the book.
Before you take up the banner of the First Amendment in my defense, remember that you’re “free” to yell, “FIRE” in a crowded theater but at the very least one will almost certainly be charged with disturbing the peace for doing so. In other words, you’re “free” to say or publish anything you’d like but it can cost you to do so.
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“I’ll have what she’s having!” 