Memoirists sometimes worry about being sued for libel or slander or defamation.
Here’s the good news: you can’t be sued for what you’ve written until you make your work public. You can’t be sued for writing you keep in your notebook or on your laptop. And writing and publishing are two very separate enterprises.
Don’t even think about being sued while writing and revising. Wipe those thoughts from your mind.
Remember that no one sees what you are writing until you take the next step: publication in print or other media, or in a public reading. And this step doesn’t happen by accident or by itself. It comes after the writing, sometimes long after.
So that’s the simple answer to how to write a memoir if you’re worried about being sued: by recognizing that writing and publishing are separate. You can write about love and terror and tenderness and violence. You can blame people, and write bad things about them. No one is seeing it while you’re writing it. Write your best. Don’t worry.
What makes a piece of writing likely to be the subject of a lawsuit for libel or slander or defamation? Wait a moment while I put my law school hat on.
Libel suits can be brought for false statements published in writing. Slander suits can be brought for false statements made verbally. Defamation is “a false statement presented as a fact that causes injury or damage to the character of the person it is about.”
Notice that all three require that the statement be false. If I call someone a murderer in an essay, and the person has been convicted of murder, it doesn’t matter how pissed off he is that I’ve written that about him. He is out of luck because I told the truth.
“Can be brought” is in italics because bringing a lawsuit is not easy to do. Most people want or need to hire lawyers for that. And, believe it or not, lawyers don’t take any case that comes their way; the case has to be both winnable and worth significant dollars, or the client has to pay up front.
Some jurisdictions also require that the false statement was made with an intent to cause harm. In all jurisdictions, harm as a result of the false statement is required for damages to be awarded.
“Harm” is usually monetary harm. Here’s an example: I lie and call Mr. X a thief in my memoir, and he loses his job because of it. As a result of my false statement, he suffered the harm of losing his paychecks, and maybe future paychecks if my memoir is so widely published and read that everyone believes it.
So let’s say I self-publish a memoir and sell 200 copies. In the memoir, I falsely state that my neighbor, Ms. X, poured kerosene on my vegetable garden. Ms. X works as a psychologist. She sues me for libel, claiming that my memoir has ruined her counseling practice.
But my memoir only sold 200 copies, and most of those copies were purchased in another state. Ms. X is not licensed to practice in the other state. The harm she suffered is minimal. The judge finds in her favor, awards her $100 in damages, and orders me to withdraw my memoir from further publication until I delete any references to Ms. X.
On the other hand, if I sold 10,000 copies in my home state and Ms. X owned a landscaping business that went out of business as a result of bad publicity from my book, then her damages would be higher. She might even be able to convince a lawyer to take her case.
And remember, lawyers don’t take on cases that aren’t worth money unless the clients want to pay them a substantial retainer based on a high hourly rate.
So don’t worry about being sued if you are telling the truth. Truth is an absolute defense to these sorts of cases.
Once you feel your memoir is finished, then think about these two questions:
- Does your work have a whiny or bitter tone?
- Have you told the truth?
Tone is not always evident to the writer. Double-check your tone by asking a friend or writing partner to read with an eye for whining and bitterness. Both tones will dilute — or even destroy — any wisdom or beauty or excitement or analysis you want to share. Also, the market for whiny and bitter writing is teensy-weensy.
If you want to pre-empt whining and bitterness, consider putting some distance (spatial or chronological) between yourself and the events of your story or poem. Distance coats a story with compassion, revealing how external events shape mistakes or even cruelties. Distance makes it possible to see the complexity of events. Distance is a ladder that lets you get down from a high horse or climb up from a slough of self-blame. It’s a lens that lets you see all the love you might have missed.
What about telling the truth? Like George Orwell, I believe in an objective truth when it it comes to facts. However, we all remember events in slightly different ways from others. Don’t worry if your memory doesn’t exactly jive with your sister’s about some event from your childhood. But if memories differ significantly, that might be interesting enough to include in your piece.
Publishers may fact-check your nonfiction writing as insurance against libel or slander actions. This happened to me with an essay about my nephew hiding in a suitcase from DEA agents. In both nonfiction and fiction, publishers may fact-check your science, or your assertions about other disciplines. This happened to me with an essay about marriage and bird-watching for O, the Oprah Magazine.
What about the kind of truth that doesn’t rely on facts, sometimes called emotional truth? If it’s not about facts, it’s not slanderous. Writers and critics disagree about the nature of emotional truth. For me as a reader, it happens when I’m so enveloped in the sensory details of a real or imagined character’s joys and sorrows, I empathize with the character. For me as a writer, it happens when I remember to invest my essays and poems with those sensory details, and with plenty of love.
Writers are always trying to get at truth. When we succeed, it’s magic. When we fail, it’s a lesson. And since writing demands learning, those failures are lessons we need.
Don’t let worrying about being sued get in your way while you’re writing. But once you’re ready to send your work out for publication, check your tone and your facts, and aim for truth.