The First Amendment; Publishers' Roundtable: Manning, Williams, Bellof

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 Reuben. I'm delighted to have today on the program for a very creative people Nora BELOFF. Many of you have read of books such as the transit of Britain freedom underfoot and her latest book Inside the Soviet empire which has just been published by Times Books. Also John Taylor Williams who is a well-known attorney specializing in literary and communications law especially on the First Amendment. He is the chairman of the American Bar Association's Committee on authors Robert Manning. Suffice it to say he is the editor in chief of The Atlantic Monthly. Former editor of Time formerly Washington and foreign

correspondent and also a former assistant secretary of state for public affairs. And lastly we're not at the end of this discussion. The novelist and Bernays whose books include The New York ride short pleasures Prudence indeed the first to know and the last two are growing up rich which was published by Little Brown and the school book which will be soon published by Harper and Row one would wonder about what your worries are. As concerned people of freedom of expression in the United States are you talking now about about I presume about discussion over the possible chilling effect that recent court decisions and court attitudes in the United States military have I mean in the United States imposed on not just journalism but even that we now know on fiction itself. I think Mr. Williams you probably agree with me that as recently as a few years ago it would be very rare that an

attorney for a publishing house or an author would be asked to look over a novel for possibilities of heat or libel or invasion of privacy. That's happening more and more now. The novelist as frequently as Hemingway's term inventing out of knowledge which means that the novelist is drawing on real characters but doing some invention beyond that but the concern over whether these characters might represent real people to the point where they can be sued has become an actuality. And there's a big case in front of Doubleday and the author of both of them out in which the court has ruled in favor of a man who claims to be a person in the book and has persuaded the court that he indeed is even though the author maintains that. Shane Bennett the true character in the book I have been very much affected by this First Amendment thing I was sued myself in a case that wasn't that was much more clear cut than either the bin them or I was

I don't know whether it's called the bin Laden case or the Davis case the one that Manning was tossed right out of the novel touching. That's right where this is where the psychologist sued but. I was sued myself by someone who claimed that I had put him into a novel in fact he had gotten people to testify under oath that I had known him for 20 years when in fact I hadn't ever remember meeting him. So that's who I was. This is a very personal issue in my life my my new book called the school book is about an imaginary school in a real city called Cambridge and the day before it went up to the Supreme Court. My editor called me on the phone and she said I'm from New York and I'm worried about your novel and I said What do you mean well. She said I think we're going to have to get this right by lawyers. So I said OK I mean that's all right with me there's nobody real in it. And she she must to spend three quarters of an hour on the phone with me going over all the characters in the book and all and all the things

that happened and say is did this really take place did anything like this happen. Well nothing like this is ever happened. In my experience that is novelist are not usually bothered by this kind of inquisition. I couldn't blame her for doing it because our Primero doesn't want to be up to the ears. But. If it does I think give us kind of in the back of your head there it is. You must you must be terribly careful to censor yourself. Maybe it will make you a better novelist in the end I don't know. I somehow doubt it. The so-called chilling effect of some recent Supreme Court decisions and comments even footnotes have reached the smaller the publication the Shakers economic foundations the publishing house or a magazine like the Atlantic or a weekly newspaper in the Midwest. The more this chilling effect works because you simply cannot afford to be sued even and the end to be

right and whim. I know many case including a suit against the Atlantic which has been going on for seven or eight years. It has cost us far more so far and legal fees were not even close to the end of this and this company has made a profit in a given year and each time I can remember that find you was an editor sending more and more things to the attorneys talking with writers about being careful and just being careful about it. And sometimes you find yourself saying the risk may be too great here. Maybe we'd better drop this and that is it. By any definition I think had a chilling effect on an editor and it's transmitted by the editor to the author. Can anything stop an author from really creating the work that he wants to do in today's environment. It's my feeling that self-expression is so compelling for him telling that people are going to write it or paint it or

sculpt it or do whatever they're going to do. The question is really at the publication level I don't think you're going to stop the creator from creating I think the question is does the creativity reach the pub. And that's the censorship level that we're really talking about. That's why I guess I was more concerned about economic censorship in a sense are these publishers of magazines such as the Atlantic were finding their legal bills are outstripping that revenue in particular years television or movies or anywhere else is that going to stop them from publishing that that to me is the level it seems to. Let me just try to write to the editor of The Atlantic and say What do you think about I think that I think I think John is correct in that it's at the next stage of the creation whether it's the painting or the short story of the novel is probably going to be going to be written especially if we're talking about creative and none not nonfiction nonfiction is another matter. There are other economic reasons why the man fiction the biography or the Book of repartees

may not get written because it takes a year or two of work and I must the better person can find enough funding in advance to take on the two years. There is another economic reason and that causes the creation not to be created but and I agree that you can put in fiction music film. While film again has some economic problems too but there the Creator will create whether man gets published or get hung in a museum. Could I just say that the engine is just shaking your head after six books six novels. Well yeah of course you're right but but the writer writes to get published after all the word publish means to go public and if you if you mind up against a stone wall that is a rejection for one reason or another you will eventually say what's the use. What about a Solzhenitsyn. You say even taking of Manning's position that report tosh and factual material won't be written if there's no market. Then you transfer it into

fiction. George Orwell asked about how many said so. So to Newtons are there and then in the USSR who were not getting published and it was horrible never see the light of day. My my impression at the moment is that despite all of the handicaps of these cases which were iOS under the First Amendment in this country the chilling effect that Manning talks about and similar situation that we're in a very vibrant period of American writing and American literature and American criticism and I think it's the tension of our times is what the writer needs to stir the vital juices bubbling my heart I think there's a great deal of creativity going on. I think a lot of the creations do not meet high standards. I think a lot of trash is being published but the flow the amount of poetry for example it comes into the Atlantic Monthly now is in the last two or three years as it has been higher than ever. We are constantly being flooded with with short stories. Not as many that are publishable

as it is I would like. The same goes for first novels as there are so many first novels being written that really deserve publication and many publishers are in difficulty because they can't read the mix on their list and doesn't allow for as many as they know that they feel they should publish. The Atlantic Monthly Press is currently in that state we have probably twice as many first novels coming out this year as makes economic sense. But we like them and will have to find some light in the hope that we'll get some bestseller or something that will make up for for what are going to be certainly the last it will take on his first book even on the lesser level than the Atlantic Harper's New Republic Saturday Review or any of the eminent books that are coming out on the novels of various their use backgrounds. The people the ordinary person whether is reading is John Oates. Is that the right name. The history of the American the American story told through a novel after novel after novel it seems to me that the level of

that sort of thing which we tend to depreciate is quite hard considering the fact that millions tens of millions of people are available for that particular genre of work. I find that somewhat encouraging that it is not lower than it is and I have little magazines are flourishing I think the amount of poetry I was I was going to finish your sentence for you Arthur when you said the number of poems we received I was going to say is staggering because I think I know that everybody writes poetry. And a lot of it is getting published. I wouldn't say that the people are still reading the written word and people are still writing the written word. I'm a little worried now for the last. Getting back to this about the First Amendment and what it is. What is this going to mean for fiction and any any person who picks up a book can say oh there I am or there's my Cousin Harriet. Let's

sue. And no matter what the circumstances the author is going to lose on that has to lose. I'm curious what would your predecessors say about Manning. Let's say Mr. Weeks if he's sitting in the I just chair of the Atlantic. How is his life totally different than yours aside from the fact that it's a more leisurely time. Well I think. I think in this in this area of litigation that is that is one area I think that the country simply has become more litigation minded and the incidence of recourse to the lawyers or the courts has just increased tremendously since his time I think he would agree with that. It's my recollection that in his long period as head of the Atlantic. Did you like when it was threatened only once in some 30 years 30 some years with a libel suit and that didn't get anywhere because it was plainly nonsense on the face of it. We had in my shorter time the line I could have have had at least half a dozen that have gone

very very directly various degrees. We haven't wound up in court yet but there is one under way in which we might very well nor value I'd just like to ask you why do you think this is happened that it hasn't happened in our country I wondered why. Well just just just as I was saying about in the in the area of medical practice the rash in the last 20 years or so of of suits against doctors against hospitals is just not applied by a hundred people use the legal profession but I did already realize there was money more and more lawyers being educated Yeah and therefore more and more are available to take cases and there are plenty of them who take them on a on a contingency basis and if they can get a large settlement they get a large chunk of it and I would have to say you know with all due courtesy to Mr. Williams and his professionalism. Getting out of business in history and it doesn't sound like a good plot for a future NO NO NO NO ONE Oh well because well maybe a funny novel I

take it back a comic novel a comic not because it's too abstract an idea that it isn't that it's an idea rather more than a successful novel QB to about an actual case in a British court about a doctor accused of practicing illegal practices and human beings and in Nazi Germany you recall that. He didn't write. I forgot I remember American press and I said no you didn't make quoting I didn't read the book but I don't have a gripping story. When I said No what I meant probably was it wasn't a good idea for me. And people say well where do you get your ideas or ideas that millions of ideas are floating around and the one that resonates in you was the one that you write. This might be a wonderful book for somebody else. And I can see that it does have possibilities but it is starting out rather in an abstract way when when the pen meets the organizational

writers what some of the commentary that they are concerned with know are they concerned as we are about this First Amendment. Well I can't speak for all of Penn I can only speak for Penn the England and we did a questionnaire survey of. Our membership in our. Mailing List which numbers about 400 people. It was fairly evenly divided between people who wanted to do more panels on the market place. That is these very problems of the publisher author relationship and the money and. The mechanics of translating the written word into a book. And what happens to it afterwards. Between that and the purely let's say artistic side of it where for instance you have somebody reading from his or her work. So it's it's divided. Would you agree. And I'm really asking about their very strong views myself I never thought about it very valid but would you agree that it is objectionable if pretending it's

fiction you in fact are writing about a human being and exposing something. I think it's very objectionable Now I did not read the Davis novel but it seemed to me reading all the literature on everything that was published about it in the paper and in Publishers Weekly and that she was treading on very thin ice here and that in fact. I think I would be a bit surprised if this doctor in the novel. Why too much of a resemblance and that he had a case in you no way. What do you mean what about something like rag time doctor at right time or cover story book on Nixon where real people some of them still living and saying in the case of the Kuiper book it's a book I didn't care I haven't read the couldn't care for it all I was very uncomfortable reading it yeah I'm sure the authors and those involved in publishing it would say that was creative. Well I doubt any doctor I stopped short of the virtuous virtuous purpose but Ragtime is mostly about the dead people isn't it. I think for the most part you know something I go back further in time but I hear he's trying something that's more or less innovative.

This is a slightly different case. I have to confess not enormously enjoyed that space of novels that came out often want to gad and I think one of the reasons why people didn't go to court about the waltz the story of the dunce's cap if you say well I'm with you I want that if it's you know what I mean. And and so I think that point of view it probably probably probably did get away with it but I think I come back to this. Sister you're only going to say different is that if it was unjustifiable it will to the pot possible and you had a very unfortunate case that you said that people are proud of themselves and showed on truth on as one of most of that happens in any case is impossible but I think it should be plain to anybody who does take it up that if they're risking it it may cost them a lot of money not their expenses any but your expenses. True this is not the way it works here. I'd like to know from Bob how he feels about this. DAVIS been dream thing.

Have you read about and I'm sure I've read about this case you know. I haven't read his book and in principle I found myself feeling very sorry for the author to get to maybe and maybe a trash book I don't know but the principle still is here I am. Unless unless she was so unhappy that she really didn't in any useful way disguise this person down. What surprises me in that case if that's the case is that the publishing house like Doubleday which has been in this business for a long time didn't arrive at that conclusion before they did the same I know you have people on and of course this is why there's so much controversy in this one of things that comes up at Penn meetings too and I was in a controversy over the so-called warranty clause and book contracts year in which in which the author assumes I want to pay for the troops and the failure and the absence of libel and invasion of privacy in his work and I was deemed the author's Reagan pen and others have taken strong positions that the publisher should not have that protection. And I think the

purpose of having too much on their own side over the years on that so I'm sympathetic with the attack on the warranty provision but you can't go the other direction where you just raise your point Lee and the editor in a publishing house may not have facts at his command and has to rely on the integrity of the officer or an editor of The Atlantic Monthly which has no research operation can't afford one has to rely on the integrity and the factual accuracy of the of the author of a of an article. So there's no way that an author can maintain that he or she is a professional and denying that he or she's got any responsibility for the consequences that his or her work. There was a curious case that arose in the last several months of a publisher who published something about a real man who was a bank robber. Eleven years ago and they wrote something that inferred rather directly that he was had just robbed a bank. He had been rehabilitated he had been convicted. He was now living with an honest and good family and all the rest of it.

The publisher said we did everything possible and they were let off by the court because of the curious defense which turned out to be true. They simply relied upon FBI documents and I lawyers relied upon FBI documents in other words who can you trust today and the court in effect said there was no malice if you did everything possible that you could to prove accuracy. And so everybody was off the hook a little bit there. Are you worried. People about the fact that there is so little active support for the first amendment by giant publishers and whatnot to to provide funding for studies to look deeply into there's a lot of lip service for the first amendment but it works best it seems when Time-Life is accused by somebody of having done something their lawyers immediately go to work and say we take this position on and they're prepared to spend any amount of money on it where the small author is prepared to collapse perhaps on it. And I've never heard of a. Publisher providing funding for any kind of study. It's a kill to

provide the funding and that there it is like the Literary Guild the Authors Guild rather and Penn and they just rely on the 30 dollar a year dues from their membership. I know we both they both have lobbies and lobbyists in Washington but it is these are essentially poor organizations when you compare them to something like Gulf and Western. Simon and Schuster but the publisher are the first some reason the publisher is generally not interested in pursuing it. I find 6 to me doesn't seem to be that should be necessary to have support from all of the industries oil agriculture whatever the short of the publishers to broadcast news in a font huge amount of money in Lisa organizations and it's in their own best interests. Then why why not follow there's a certain sensitivity or aloofness. What what causes this.

Well I think there's something about that that the First Amendment that brings to me to mind in the sort of lone writer that the First Amendment really is a very personal thing and deals and deals with individuals those who are accused of viable or invasion of privacy those who were claimed to have been had that committed against them. I'm not aware that the publishing industry is silent and motionless on this. Look I can come I can't come up with any and it happened to me since Henry Luce gave quite a bit of money many many years ago right after World War 2 to the University of Chicago to mount a huge commission on the free press because back to the forty seven hundred forty seven forty anybody's given money for journalism schools per se but not on the specific 20th Century Fund I think has put some money into these but of course that's money from one source not from the publishing industry it's from the foundation. One of the explanations is that it's one of the subjects on which there isn't unanimous agreement on the sanctity of the First Amendment. Yes but I'm what

Sankyo that means and what can be done and the name of not and there's not unanimity among people in journalism or in publishing. Is there a lack of awareness that there should be unanimity at least on the fact that will support results which so long as they are objective. Won't you worry about how they'll come out they will give us good learnings on this matter we'll we'll see all points of view. Is that too too much to ask of any industry. What I would ask is is more an unanimous feeling that some of the things we talked about earlier the so-called chilling effect and the pulling back of the Supreme Court from some of the earlier decisions on libel particularly public figures that there should be concern all across the industry and should be demonstrated. Much more in some fashion what I don't know. An organized campaign. I saw that the surprising snap book the CIA book cause publishers to meet in New York to discuss the implications.

And I'd like to know. I'd like you to know that you were overheard saying that to somebody and this was repeated to me from somebody in New York. Why. Why authors and publishers so adversary and I would like to see something done to make to make that end. Because I mean here is that the publisher needs the author the author needed a publisher and I had to since this is it as an adversary and I think that I know how active you are and you know having formed organized New-England Pam I find as an editor and a publisher. And being in a pen gathering can sometimes be very uncomfortable because there are a couple of meetings have meant a there was more talk about how awful editors and publishers are and then just by anything else it was discussed Well I know if I can tell I'm a pan MEMBER Yes I mean you know I've been there in a year and I invite you to come to my next minute right. I'm I'm I'm quite please with the the ebb and the flow of this discussion for several reasons it proves my point that we spend too much time arguing the legalities of the First Amendment and not enough time.

I'm doing about the background to it. The income clues have background to it and hopefully this this discussion I foresaw as being inconclusive Samoa's it was pertinent. We don't want that final decision remanded to the lower court we don't want that we have to discuss the issues and I think Nora BELOFF of Great Britain the reporter for being with us. JOHN TAYLOR Williams Robert Manning of the Atlantic and the novelist and Bernays for this edition 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 Barry Carter 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.