Will the legal battles sparked by the fabrications in James Frey's A Million Little Pieces—at least 16 lawsuits have been filed against the author and his publisher, Doubleday—have a chilling effect on the publication of memoirs and other nonfiction? Other publishers are understandably concerned about finding themselves in court answering such complaints. But they should keep in mind that, with some exceptions, legal precedent is on their side.
So far, the suits related to A Million Little Pieces include claims of consumer fraud, breach of contract, unjust enrichment, misrepresentation and deceptive business practices. The plaintiffs argue that Frey's claims of truth, promoted by Doubleday, deceived readers into buying a book they otherwise wouldn't have bought. But according to First Amendment principles, publishers aren't responsible for verifying the truth of claims made by their authors.
Free expression—assuming a publisher (i.e., Doubleday) did not intentionally deceive—should always prevail. In the past, courts have properly sided with publishers against claims that they have a duty to check the truth of every factual claim made by authors. Take the case of mushroom enthusiasts Wilhelm Winter and Cynthia Zheng. According to the 1991 decision in Winter v. Putnam, Winter and Zheng went mushroom hunting after having consulted The Encyclopedia of Mushrooms, published by Putnam. Upon cooking and eating their harvest, the plaintiffs became critically ill. Both sued Putnam, claiming the book contained erroneous information concerning which mushrooms were deadly.
A California court found the publisher had no duty to investigate the accuracy of the book's contents, as it was "not inherent in the role of publisher to do so." Among the many cases cited by the court also holding no duty on the part of the publisher to investigate were lawsuits involving investors who suffered financial losses due to reliance on inaccurate financial publications; a claim against the publisher of a book on how to make tools by an individual injured while doing so; and a claim against the publisher of a diet book brought after one of the diet's adherents died.
If these lessons hold true for purely informational books, courts should be even less prone to find a case against Doubleday for publishing Frey's memoir, as memoirs by their very definition are subjective narratives. Still, there are limits and exceptions. In the mushroom case, for instance, the court did note that publishers aren't always off the hook. If a publisher takes on a duty of care, such as conducting an independent examination of a particular product, it must abide by it. For example, Hearst was held liable in 1969 for a defective product after Good Housekeeping gave it a "Good Housekeeping" seal of approval.
While Doubleday shouldn't be held liable for printing the "false statements" in Frey's book, the law is a bit murkier with respect to advertising material (i.e., book jackets, press releases, etc.). These cases usually turn on whether the court views such material as core, noncommercial speech or commercial speech. Some courts have found that the sole purpose of a book jacket and associated promotional material is to sell a product, and therefore not subject to heightened First Amendment protection. Others have found that in addition to helping sales, promotional materials have the noncommercial, expressive feature of conveying the contents of the book and are therefore protected under the First Amendment.
Given these contradictory rulings, publishers may want to avoid republishing factual claims made in the book in the advertising copy, or at least tie the ads to claims made by the author. For instance, don't say, "Emissions from carbonated gas are destroying the ozone!" Instead, try, "The authors studied the effects carbonated gas emissions have on the ozone, and conclude that the harm is worse than feared." It's not as punchy, but it's safer.
But in no event should publishers hesitate to publish or promote memoirs, nor should courts entertain any lawsuits that would encourage such a chill. Doing so would deprive the public of both potentially great books and the important debates that books such as Frey's have launched.
