The First Amendment; John Taylor Williams, Libelous Fiction

The First Amendment and a free people. A weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Bernard Rubin. If you're a novelist and youre depicting what you think life is like a good slice of life how close can you come to showing someone in true life. In your novel who says that he or she recognizes that person in the novel as being themselves and perhaps sees themselves sees himself or herself painted in a very unflattering way. Well with me to discuss this question which came up in the case of Bindra vs. Mitchell in the California Court of Appeal is John Taylor Williams the important and distinguished law firm of Hauserman

Davis in Shattuck in Boston. John this case involved a woman who wrote the novel touching. And one of her characters is the head of a therapy group a man who believes in nude encounter therapy. The novel was published by Doubleday in hardback and later was so successful that it was republished in the paperback edition by New American Library. Along came a therapist who said By golly that's me and I don't like what I read and went to court. If you want to pick up the story there. OK Bernie. It's an interesting one not only the lawyers but to people interested in publishing and in the First Amendment and I think that's what makes the case more than just the usual defamation case.

Dr. Paul Bindra who is the plaintiff claims that he is recognizable in the character of Dr. Simon Herford in the book which is entitled A piece of fiction was marketed as a piece of fiction. The plaintiff Dr Bindra admits that it's a piece of fiction except as to those parts of the fiction that aren't true which is what makes this case most unique since most readers assume that all fiction is not true. And he admits that it's fiction but says that the part of the fiction which regards him which is untrue is defamatory and that gets us off on the case itself but the the author went to great lengths apparently. To disguise a character who certainly I think she admits was in part based on her experiences in a new encounter marathon with Dr. Ben from the plaintiff. We ought to say that the author is Gwen Davis Mitchell the author of touching and that she went to a session at least one session of this Encounter

group led by Dr. bedroom under certain conditions. I think that's where we got off on the wrong track for sure. MS. MITCHELL Because when she first went to sign up for this new marathon encounter group she was the author of another successful book some years prior to that she told him that she was an author and he immediately told her that she wasn't going to be permitted to be a participant in the nude encounter marathon unless she. Would agree to sign a contract as all the other participants did. But they would not write about their experiences the names or identities of any of the participants or I gather the group leader actually the lead paragraph is in the contract they signed the participant agrees that he will not take photographs write articles or in any manner disclose who has attended the workshop or what has transpired if he fails to do so but releases all parties from this contract but remains legally liable for damages sustained by the leaders and participants.

End of quote. So in she goes. Having agreed not to do these things by a private contract. And I'd like you to tell me how forceful that is in law and then joins us encounter group and then writes about this Dr Herford. Now the Herford character and the real life Mr Bindra are different in several ways from the novel to real life. Well of course the encounter group is out in California in the time period in which Dr Ben room admittedly was running his own sessions and she admits it's modeled on the session that she attended run by him but she took great steps to disguise him physically. She made him a short fat hairy beard whereas I gather he's tall and thin with short cropped darkish hair. And also she changed his medical degree I think from psychology to psychiatry which ever would be the reverse of the actual degree which he held. But the problem came when she started placing dialogue in his mouth and the dialogue of the character whom he feels was

based on him and he apparently got two colleagues to testify at trial that they identified Dr. Herford is none other than Dr. Ben from their close friend. It's the dialogue itself that he objects to because it's full of vulgarities and coarseness as he alleges which he did not use. Not only about characters and coarseness but shades of Somerset moron's novel rain there is also the ministerial element in this that one of the key participants in this dialogue that is put in the novel is of a minister and there was a ministerial type man of the cloth at one of these nude encounter Sessions who I think the facts are the same novel to real life whose wife did not attend. How about picking up the thread there. I'm letting this hang by a thread because this is an interesting bit. Well apparently Dr bin room tapes records all his nude encounter sessions so he was loaded for bear when the suit came. But we had to go back to how the suit originated

because another thing that makes this suit. Considered to be paralysed by publishers is the fact that at the time they contract it with the book they only knew her to be a successful author who specialized in this kind of format novel. She had not told her publisher Doubleday that she had signed a contract agreeing not to disclose anything she learned at the Newton counter session all she told them which is you did tended such a session and wish to write a fictional novel based on her participation in it. She also had signed the usual authors agreement in which the author agrees with the publisher that if the publisher is sued because of matter which is false or defamatory in the book they publish that the author will indemnify the publisher and hold them harmless for any damages that may accrue to the publishers of publishing it. So they were both armed with a warranty clause and armed with the fact that she was an experienced author. And thirdly that she was publishing a work of fiction which wasn't going

to be based on real events other than in a nominal sort of way and that the characters were going to be fictional characters. So they proceeded to publish after they had published the hard back version of the book they contract it with a soft cover publisher new American Library bring out the paperback which traditionally in publishing circles is published a year after the hardback but prior to the publication of the paperback the. Dr. Ben Holmes lawyer wrote a letter to both Ms Mitchell and Doubleday saying I'm recognizable. You've defamed me and if you don't take steps to correct it I'm going to sue you. The publisher at that point did what most publishers would do and conferred with their author about the letter that they both received. The author again renewed her confirmation to them that nobody was recognisable in it that everyone had been fictionalized and that he was not recognizable. They then proceeded to permit the paperback publisher to publish the book as it was originally published by the hardback publisher and subsequently they were

sued by Dr bedroom and then in the actual trial in California before a jury $50000 of mutually sort of damages was awarded against both the author and his jointly and severally being liable for those and then a special. Damage $25000 as a punitive damage was awarded by the jury against Doubleday said Doubleday is potentially responsible for $75000. It's this case in some accounts from publishing organizations. It has a chilling factor here because they say if you say that you are recognizable on the basis of the set of facts in this particular book then somebody else may say the very recognizable and at what point does a man writing about a president a senatorial conflict a problem of 12 Angry Men in a jury room actually come into conflict in cold blood which was which was a I think a novel

based upon fact a new kind of novel documentary novel that would have been in trouble in this particular case the encounter session that Dr Bindra objected to as containing evidence that showed him he alleges rather than some fictional character. There is an exchange where people in the encounter group this minister and so on and so forth word by his wife is not at this new sexual encounter. Talks to the man the therapist is running it and is urged to bring his wife there but in the novel the the therapist Dr. Hereford uses some very strong language not in today's novels but well if you were being quoted yourself you would probably be well I say not in today's novels but for today's radio programs. So if the reader wants to get it you're not going to read it. I could read it right I could read it but good taste I think forbids it. Not that

the word involved is inimical to good taste but it is part of a novelist scheme not part of an analytical scene. The therapist says to the minister Well if she doesn't come grab her by the and and get her here in the real life taping session you did not send it. You know it's very polite. I think that's true. And the problem with Dr. Benjamin is he is permitted by the court in this case we are to tell a little about the history of the court here. The jury returned for the plaintiff Dr Brandram against both the publisher and the author whom he alleged had defamed him when the case was appealed to the Court of Appeals in California. They wrote the decision which you and I are discussing. The publisher and author both appealed from that state court of appeals decision but without any luck they could not get a rehearing to be granted them by the California Supreme Court. And after exhausting that they then approached the United States Supreme Court where luck was no better for a writ of certiorari and that

was denied. Now the problem is that the law of the case now is the court of appeals decision which says that this was defamatory but coming back to the words that he alleges that were defamatory any words which he alleged were not a fan of Tory. He admitted were fictional. The words that he says were defamatory of him he says are also fictional but somehow they're suddenly defamatory. Other references to him that were clearly defamatory one which the dissenting opinion in this case brings up was that it had sexual relations with one of the participants in the encounter group. He didn't choose to allege that that was defamatory and since it didn't then wasn't an issue. The defendants the publisher and the author couldn't get that before the jury so that he picked and chose which references to a person other than him. He chose to have. Read to the jury as being defamatory of him and the jury was then limited in looking only at those comments to see whether or not they were uttered with actual malice as the Supreme Court is to find actual malice.

Now in the law could could a court could these courts or any court have said that whenever we have discussed censorship or obscenity which is not the issue here but the libelous characterization. Could they not have said we have always applied or we have usually applied standard of the work taken as a whole looked at as a as a novel the whole of the poem the whole of the painting whatever we have Could they have looked at the work as a whole under the law. Even if he chose not to bring up as a point of contention this allegation that he had sexual intercourse with one of the patients. I think they did look at the work as a whole but of course the only matter that would should be before the jury in a defamation suit of the remarks which the plaintiff says are defamatory of them. They looked at the work in the hall but unfortunately they looked at the work as a whole I found out that one the author admitted that she had attended these groups led by Dr. Bennett and that it was based on those groups which she had

attended and that apparently she had expressed concern to others that she had done. A job on him I think she suggested to someone so that there was before the jury. I think in a minute set of facts that it was based on those actions that he was the doctor upon whom Dr Simon Hereford was based and that she was concerned about the treatment of him. Let me give you another scenario. JOHN WILLIAMS And that is that the author Ms Mitchell did not sign a private contract with him before she went into the encounter session. What would have been her position in the law had she not done that. What would have been her publisher's strengths as a publisher of this work where they have changed. Well I think I'd have to divide those because eventually the jury award on contract went so it did not end up as a contract case so that legally the fact that she signed this contract and then breached it is of no significance when

you examine the case as a lawyer or a court looking at it. The problem was that I think the jury was enormously affected by it and it was the jury award that was being reviewed by the Court of Appeals resulting in this decision. And if you were a juror I think you'd be greatly influenced by the fact that this woman told him she wasn't going to write about it if he only let her into his course and then to show that she meant what she said she signed this agreement which other participants. And then she kissed and told and the jury didn't like it clearly. I talked to the lawyer for both the publisher and the author who tried the case in California and he felt that the jury was not didn't react well to that. They viewed her as a woman who was profiting from having attended this thing. And they their sympathies lay with the with the doctor. Now her position would have been no better had she been to change the defamation award at all. You know what about malice. The publisher was

held to be not malicious having no malicious intent intent up to the point of publishing the hardback edition. But once having received a letter a letter from Dr Bindra and then letting it out to the new American Library. Without making any change without making any change or any investigation of the charges this was held to involve some degree of actual not actual malice. You would agree with. Well I don't agree with that I find that finding that one of the more troublesome in the case but we've got to remember that actual malice doesn't mean what it sounds like it means there's poor choices of words it doesn't mean ill will. What actual malice refers to the so-called New York Times First Amendment protection that's extended to publishers and authors that if they're writing about public officials or public figures and here Dr. bin room and the publisher agreed before the trial started that he would be treated as a public figure for purposes of the law which meant that he could only recover in a libel suit if he could show that the defendants the publisher and the author acted with

actual malice which under the New York Times doctrine means that the publisher and author publish this knowing it to be false at the time they published it or recklessly disregarding the truth of what they published and that has later been interpreted to mean by the Supreme Court that they entertain serious doubts about the truth of what they were publishing prior to publishing it. There's no question that the publisher here Doubleday never knew that what they published was false. As a matter fact they always assumed it was false because they said they were publishing a work of fiction and they were always reassured that they were. But also I don't think they ever tain entertain any serious doubts as the Court has defined it because they were told that he wasn't recognizable. They got this rather obscure and vague letter from a lawyer representing him saying he was recognizable and they then checked back with their author who said no but it was this in the dissenting opinion it was pointed out that most of the people that appeared as experts to say he was recognizable. That was a limited group. Three of four people three. And the general public did not

rush forth to say there is Doc to Bindon it was a much more selective case than that. When you put your finger on I think the other major legal issue is that we now find that people can recover from fictional works which of course is 90 percent of what many publishers publish. Merely by coming up with a couple of intimate friends as witnesses who will say that they identified them in the New York Times context I think most lawyers felt that the duty on the plaintiff in a libel suit was to clearly and convincingly show that they were recognized and defamed in the eyes of a significant segment of the community not just their wife or their first cousin or someone. Or there these two people were psychiatrist who worked in the same kinds of new therapy that he did in their very limited amount of psychiatry in California did so and they obviously knew him well. Do you feel that this case has a bad set of facts. As a First Amendment case I think you name the worst set of facts for the jury and that was this contract.

It was hard to like an author who had come in deceptively false pretend they were false pretense that she had signed a contract and never intended at the time she signed it on. Well having been to one nude encounter group having signed that contract. Speaking for yourself or never ever having been. Never having been unfortunately to a nude encounter group and having signed the contract Ms Mitchell then goes to write a novel. Could one not separate that. I mean if you stretched it could you not say that yes she did sign a contract she did go to this man nude encounter group. He is claiming exclusivity about it he is claiming to have invented the wheel. If she then writes about a nude encounter group which is now accepted in the literature and has this kind of a Santa Claus figure as the as the therapist that she would have just as strong a case to say prove that all nude encounter groups are references in effect to you.

Yes I did learn about nude encounter groups but I'm a novelist novelist learn from all sorts of things in life. I've separated myself in time and space and created a novel about something involving you'd encountered it. Well you know I think what will be interesting to see whether Bernstein and Woodward pursued for instance in California which is unlikely I don't think they had too many interview subjects in California but in for instance if it turns out that some of their material came from an ex Supreme Court clerk to one of the judges about the brother and the brother who now lives this former Supreme Court clerk is now practicing in California he chooses to sue them there. The bedroom will be a case very much in his mind and I think the same questions will arise. What happens when. Reporters or authors go in and say that they will not use certain aspects of any interview or participation in this case and some sort of happening and then they turn around and do it. Are juries going to then translate that into what this court said was actual malice because it isn't

actual malice actual malice. As a Supreme Court if I had nothing to do with the ill will that shouldn't even be admissible. But it is and once it gets in there I think it colors the way courts and juries treat these things. I have a feeling that this is a soupy decision and not a precedent. Would you agree with that or all the cases are precedents obviously from a legal point of view not take every thought plaintiff's lawyer in the country will treat it as a precedent. And I would myself if I happen to be representing a plaintiff I don't think it is except in California is clearly a precedent in California. How much binding authority it has outside the state of California. I don't know but the problem is that the court very thoroughly addressed I think wrongfully and in error but they very thoroughly addressed the First Amendment considerations and the constitutional implications of what they were doing. It was said in regard to the Habsburgs of Austria that they had spent several hundred years ruling experienced everything learned nothing. And here's a case where a woman has experienced something and is supposed to tell

nothing. There is a freedom of the individual to divulge experience which cannot be negated by a contract. For example if I went into a person's class and he asked me to he or she asked me to sign a contract that his method his teaching method and all the rest of it and none of the seminary or seminary and technique would be disclosed. And then I wrote a novel about a professor who use these techniques. I think you'd be perfectly free. That's why I think this is a weak case. This Dr Bindra It seems to me is claiming to be so specialized so identifiable so unique as to invade the world of imagination. Oh I agree and that's what the chilling effect is I think it's on publishers one because how do they what do they do with the work of fiction. They have to depend on an experienced author or she was when she says yes the core of this experience is real because supposedly the admonition to all good writers of fiction is right which you live in

what you know and write it. Fictional form and she did that and they published it and she told them that it wasn't recognizable How are they going to check out people whose names aren't given them in the first place. She didn't include the names of any real people and she didn't describe them so they would be identifiable. Do you think novel should be identified as automobiles are New York where they say exhaust system not valid in California. Well we were talking earlier about the difference between English and American and in England of course if these people weren't recognizable in the sense that it was fiction it has to be truth as your only defense in a libel suit. On the other hand infection nothing she published about this guy was truthful. His name wasn't Dr Simon her for he wasn't a psychologist. He didn't look the way she described him and he didn't say what she said he said. So now we get into this gray area about because he didn't say what she said he said even though he admits that that isn't him. He's not Dr. Simon Fairford suddenly the publisher is on the hook for the libel. I have a

little less sympathy with the author here and I think I have it like the jury does. They went in leading with their chin by having signed this contract and then turned around and violated it. That wasn't the subject of the suit but it does color your feelings towards them. Now the end result was they have to pay both parties together what is the legal expression. Well it's joint and several liability which means that the successful plaintiff here Dr. Benjamin can recover his damages from both either or just one to the tune of about 75000 Well you have 2000 from both and then he has a special award of punitive damages of twenty five thousand against Doubleday. Now John tell you if you were a lawyer who specializes in publishing cases are you going to look at this case in Massachusetts any differently than you would when you when you review documents or novels brought to you in future. Well I really shouldn't in the sense that I don't believe that I was searched by the Supreme Court

puts any kind of a primer to on this decision but I think if we're seeing the way courts are necessarily reacting generally to the to the First Amendment rights of the press I would be much more careful and I've advised publishers to be more careful after you get a notice saying there's something in what you just published that's wrong. And rather than just proceeding on the basis of confirmation from the author I guess I. I would. The more concern now with that so-called notice than I would like to see the publishers doing that but do you send a telegraph to Greenwich Village to Thomas Wolfe as he's leaning over his refrigerator writing. You Can't Go Home Again no to earth can Caldwell saying in out just watch it boys because when you write be be careful of this. I don't think that that authors can respond with the same alacrity as publishers publishers could know to be careful but Kanag creative writers can't know when they're publishing a work of fiction because there's no facts to

deal with. Because if you trust and rely on your author which publishers should do and the author tells you these aren't real people. There's nothing to check with Dr Bindra and have sued Ms Mitchell If the obscenities had not been in the language. I think he would have. I think he was mad as a hornet because she broke a contract with him. And from her point of view of course she obviously has the potential of losing a great deal of money in royalties and but nevertheless the book Touching seems to be a rather successful book. I have unfortunately or fortunately maybe one of them the stigmata you bear in these kinds of things is that usually the book has increased sales with this kind of publicity. Of course you haven't really touched the under part of the iceberg which are the legal fees that. The defendants both publisher and author will of accrued in all these appeals to the various courts but read hearings and the underlying publisher's

agreement with Ms Mitchell makes her completely responsible for all those legal costs as well as all the awarded damages. So it is got to be quite successful for her. Well I've learned my lesson I'm going to write my novel and assign all sorts of contracts saying that I have never attended as I've testified nude encounter groups and what other things have I not attended. I think I will write a very revealing and scathing and virtually verging on the obscene novel. But take the precautions of saying I never did any of these things with any known person on earth. JOHN TAYLOR Williams As always it's been a pleasure in this case discussing the factors in vs. Mitchell before the California Court of Appeal. Second appellate District Division for no that's legal or stick to the nth degree. A case in which the Supreme Court refused to to review for this addition Bernard Reuben.

The First Amendment and a free people a weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Margo Garrison and the program is produced by Greg Fitzgerald. This broadcast has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University which are solely responsible for its content. This is the station program exchange.