In the compelling memoir The Fact of a Body, Alexandria Marzano-Lesnevich braids together the life history and her feelings about a convicted sex offender whose story she investigates, and her own story of abuse from a beloved grandfather. You may be writing self-help content, a memoir or other work that may avoid such tough waters, but still need to share names and details, raising the question of what’s legally allowed when depicting others, and how authors navigate emotional aspects of truth telling.
Here is a recap of what I’ve learned from digging into the legalities and from discussions by authors of how their interactions with people they’ve written about have gone (Note that I’m not a lawyer, so none of this is professional legal counsel, and should be double-checked with other sources).
The 3,000-Foot Perspective
First off, you’re not going to jail because you called Aunt Jane a bigamist. Matters related to naming names get handled by civil courts; as a result, compensating the person who feels injured, and/or having your work canned before publication, are what could happen. The chances of an author being sued are slim, writes Jane Barrington, the author of Writing the Memoir, partly because taking someone to civil court requires hefty lawyer fees; she tucks a section on legalities into the back of her book, perhaps partly for this reason.
In addition, Barrington and every memoirist I know have applied the same rule to writing while worrying about how those portrayed will react: Don’t think about that stuff until the draft is done, just as avoiding thinking about others' responses is the best approach for writing any draft. You need to be as raw and honest as possible. And, as the Pulitzer Prize-winning feature writer @MitchellSJackson put it at a 2021 conference I attended, he follows an old mentor’s advice to focus on "writing towards the danger.”
In part, as Mary Karr (@marykarrlit) alludes to in The Art of Memoir, trying to play nice with the facts could keep your truest, most engaging emotions and recap of an event from rising to the surface. And Bird by Bird author Anne Lamott reminds that: “You own everything that happened to you. Tell your stories. If people wanted you to write warmly about them, they should have behaved better.”
The Legalities of Potential Written Harm
But it helps to consider where to draw the lines, legally speaking. Here are the ins and outs of being accused of defamation because someone thinks your brought harm to their reputation or livelihood, or you have been called out for supposedly invading someone’s privacy (even with these explainers, authors who self-publish should hire a lawyer to make sure they're protected if they have any concerns).
Libel is the legal term for defaming someone in writing, which can include harming someone through words in books, while chatting on a listserv, in a blog post, or on social media. You want to avoid publishing information that isn’t true about someone (even getting one fact of several wrong could be a problem), with the legal question being whether your factual error(s) have damaged them in some way—damaged their reputation or chances of business success, caused a loss of finances, or of relationships.
There is a plus side: libel rarely is an issue if the person you cover is dead. It is also harder to be sued for libel in general because the statement shared must be written as if true, be stated as fact (opinions are often safe), and must be found to be false. So, if you have access to criminal or other public records that show something is true, you should be good. If you’ve written about an event instead, where other people might be called on to share their view of what happened in court, then the safest bet is to confirm they remember things like you do (and presumably get a record of that shared consistency in memory).
A toughie is that you can still be sued after changing someone’s name, if they are still identifiable by physical appearance, personality and such—even if you've turned them into a fictional character and stated that none of the characters are based on real people. That doesn’t mean you might not want to change the name of a character at times, as discussed in the second section.
Invasion of Privacy is about people’s rights to be left alone, particularly people who are not celebrities, politicians, or public figures. Those individuals often miss out on this legal coverage because they chose to be in the limelight and aren’t considered private individuals; one of the rights non-public individuals have is a lack of (intentional) intrusion into their solitude or private affairs.
You could be sued for invading a non-celebrity type’s privacy if you publish something that’s embarrassing, misleading when it comes to facts, or offensive. The public disclosure of private facts is especially important to avoid, but all of these factors apparently are usually considered.
The truth of what was shared doesn’t matter, making privacy lawsuits likelier to be won, because private individuals have rights related to being publicly exposed about a private matter considered embarrassing. The law also applies if your work produces publicity that shows someone in a false light (or if you seek to profit personally or financially from using their name or picture—remember: selling your book is seeking to profit from the words in it).
As an aside, there are also issues to consider related to mentioning peoples’ content in your own—and things to know about copyright law protection of your writings—which I covered in my last post. For understanding the verbal equivalent of libel, called slander, this editor’s post is a good resource, and includes more tips for legally protecting yourself.
The Emotional Side of Truth Telling
For authors like the late Joan Didion, writing is a way of making sense of the world, no matter what. That included, as she mentioned in a Netflix-funded documentary The Center Will Not Hold, getting her author husband to provide feedback about her words on their marriage in disarray. What she perhaps didn’t say was that she was a straight shooter. Or, as Karr put it in her memoir guide about having early family review The Liar’s Club, “they knew I was shooting for a 3D portrait, not a burn-your-house-down tell-all.”
So, the first piece of advice is to play fair in how you portray others. For one thing, readers are rarely going to trust or find interesting a writer who hasn’t sought nuanced portrayals of others as well as themselves. Being fair also greatly reduces the chance of people shooting your words down. Here are tips from Karr and others on what being fair looks like, and the larger value of shining a light on subjects others may initially insist you leave alone.
Karr’s general advice in her “Dealing with Beloveds” guidebook chapter is three-fold: let people know that you are about to write about some topic well in advance so they can protest before you dig in, only share content that’s fully fleshed out, and then share what you’ve written long before it goes to print. For instance, you might do so when you've worked through the initial draft of the whole manuscript, but before the revision stage—or when select chapters are about to be sent out in a book proposal.
Dinty Moore (@brevitymag) discussed sharing content in advance at a recent memoir workshop both to reduce surprises, and to get others’ perspective on what happened. Someone’s less likely to feel blindsided by how you portrayed them or a situation if they get time to process it, that is. And there may be—and often are—more than one point of view about how and why some situation unfolded the way it did. Hearing about what others thought of an event may confirm your take on it, or allow you to develop a more nuanced version of the situation, both win wins.
What do you do, though, if someone doesn’t like what you’ve shared in general? There is always the option of “providing cover” by changing names, as Karr did when her ex-husband asked for that in her first memoir, and as Marzano-Lesnevich did for her sister, who was also sexually abused, and a few others.
If someone’s take on a story is different, you’ll find that authors handle things differently, with how certain they are of the reality playing a role to a lesser or greater extent. Rule 10 of Karr’s, for instance, is that she will delete anything that someone completely denies. That relates to what Mitchell S. Jackson shared at the 2021 Agents & Editors conference, about wanting to “be sure you’re writing the truth.” The realities shouldn’t be called truth if they are second-hand shares, unless you have verifiable information to back what you write up. As @JaneFriedman shared in her memoir workshop with Dinty Moore, memoirists, unlike journalist, “can’t tell other peoples’ stories, or it takes away their agency.”
Karr will mention in passing if someone saw things completely opposite of her (presumably, when she also had direct knowledge). Otherwise, she shares that she seeks to present her own “prejudices and gesture there might be another opinion”—that is, she makes herself stick to providing the nuances that most truths include to a situation she had active knowledge of.
With The Fact Of A Body, Marzano-Lesnevich was in the room at times when her younger sister was molested; so, even though she shares that her adult sister states she no longer will talk about the abuse as having happened, the author doesn’t pretend that abuse didn’t happen. She’s not insensitive about covering this, though; no scenes are included of the sister’s abuse. But Marzano-Lesnevich still shares, for instance, a pivotal scene where the sister inadvertently exposes the sexual assaults to their parents, who then chose to bury the events and just supervise all the grandparents’ time with the children.
Potential Lasting Benefits
Why put yourself through the hand-wringing that decisions like this involve? For some, the unpredictability of what relationships might get harmed, or the right that strangers might suddenly feel to ask about your personal business, might lead to some regrets. Other authors feel like the impact they've had, such as on survivors of similar challenges to the one described, make publication worth it. Marzano-Lesnevich writes of another impact in her memoir: "The silence my parents kept may have allowed more children to be hurt." And, in fact, she learned after publishing her work of at least one other abuse victim, a cousin.
Some of the people you run the review gauntlet with might also come to some new understandings. Karr shares in The Art of Memoir how her mother calls herself an “asshole” after flying to visit and to read about her behavior in The Liar’s Club, and how, “Ultimately, she said something that rattled me to my core: ‘I didn’t know you felt this way.’ ”
The ripping-off-the-ancestral-band-aid approach appears to help some family directly too. For instance, there’s a telling scene with Marzano-Lesnevich’s mother in The Fact Of A Body where they discuss the author’s search for the burial place of an infant sister the parents whose death for medical reasons they chose to never discuss. Her father initially responded to the ask for cemetery details. But later in this scene at a café, her mother shares through tears, "At least now there will be a record she existed." Or, as Karr notes of her family, after a hometown reading of her work, “Something about having all the bad news out in open air freed us even more.”
Barbra A. Rodriguez
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