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June 28, 2004

Yes, but is it libel?

John Scalzi journalist and blogger at Whatever gives an excellent explanation of libel.

If you're like me, you live in a conceptual demi-monde in which slander, libel, and defamation seem synonymous. So, I thank Mr. Scalzi for setting me straight. I hope he will turn this into a series. I'd love to hear his explanations of slander and defamation.

Bear in mind with what follows that I am not a lawyer. However, I have been a writer for newspapers and magazines for years, and as an editor I had to keep an eye out for potentially libelous material. In short, I have a reasonably good grip on what constitutes libel.

Now then: Let's say that one day I'm wondering around the Web, like you do, and I come across the following tidbit on someone's blog:

John Scalzi is crack-smoking cat sodomizer. It's true. I've seen the pictures.
Naturally, I am outraged. How dare someone suggest I sodomize my cat while smoking crack! It's time to lawyer up! Or is it? There are questions to ask:

1. Is it true?
I mean, if I actually do sodomize my cat and smoke crack, then I have no grounds to claim libel. I probably wouldn't want people to know about my feline-violating, drug-huffing predilections, because it will make for a lot of awkward conversational pauses at parties and would probably keep me from being confirmed by the Senate for any really interesting government posts. But if in fact I do those things, I have no recourse. But let's say that indeed, my urine runs clean and my cat runs without sexually-originated hip dysplasia. Next question:
2. Is my accuser aware that he's spreading untruths? If in fact I don't sodomize my cat or smoke crack, clearly there are no actual pictures of me doing either. If my accuser hasn't actually seen the pictures but says he has, we've cleared another hurdle for libel. On the other hand, if for some reason someone has gotten creative with Photoshop and ginned up fake pictures of me, my cat and a crack pipe, and then my accuser sees them and believes them to be real, then although he's wrong he probably hasn't committed libel (if he created the pictures and purports them to be real, then we're back into libel country).
3. Is my accuser's intent malicious? If my accuser is a member of PETA and has been shocked by the faked Photoshop pictures of me cornholing my cat, then one might reasonably argue that he's accused me out of genuine concern for the poor feline who is the object of my unwanted attentions. That's not libel. On the other hand, if the accuser hates my friggin' guts and wants nothing more than for me to die bastard die, then libel is back in business. Clearly, it would be good for me if the URL this accusation resides at is something like www.scalzisucks.com.
4. Have I been materially affected by the accusation?If someone says I'm an enthusiastic ravisher of animals, and yet my wife stays with me, my family and friends shrug it off and my employers chalk it up to the Web being the Web, then I don't have much of a case. But, if I was about to sign a contract on a book on cats, and the publisher rescinded the offer on the basis of the rumor I love cats too much, and a concern that the cats I don't penetrate I'll sell for drugs, then yes, I have a case. I also probably have a case if my wife leaves, my kid is picked up by Child Protective Services and all my friends stop returning my phone calls.

Note that for a really good libel case, all of these have to be in effect. And that's for private individuals -- which is to say, normal people with normal lives. If for some reason I'm judged to be a public figure (say, due to my extremely low-bore celebrity via the Web and my published work), then I have fewer libel protections. Note also that if the information is expressed as opinion (i.e., "I believe John Scalzi sodomizes cats and smokes crack. I've heard rumors of photos that show this"), I'm out of luck. I'm also out of luck if the language used is "heated" ("Goddamn motherfucking John Scalzi likes to poke his fucking cat with his tiny little meat and then shove a crack rock the size of a fuckin' rat into his crappy tinfoil pipe and suck on it like a Hoover on the overload setting") or if the work is satire ("Scalzi the Crack Smoking Cat Violator: A Musical Play in Three Acts").
And what do I get for it being so hard to prove I was wronged? Well, here in the US we have really excellent freedom to say what we want without worrying that opening our mouths to express an opinion will get us hauled into court -- or into jail. Let's also note, by the way, that stricter libel laws don't actually mean that less libel happens; the United Kingdom has far stricter libel laws than the US but the UK press is just vile when it comes to rumors. Given a choice, I'll personally take a little less protection against libel for a little more protection of free speech.
For the record: I don't smoke crack and I don't violate my cat, and no pictures exist of me doing either.
Although if someone whomps up something in Photoshop, be sure to send me a copy. I could use a laugh.

[To see what Scalzi's reader's came up with click here].

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