A Writer's Guide to the First Amendment: Be Careful Who You Libel

What is freedom of the press and how does it differ from freedom of speech? In one sense, it is merely a subset of freedom of speech. But speech that reaches the masses—or has the potential to—creates additional concerns. On one hand, it can do greater damage. On the other, the potential to reach a larger audience tempts government to take more severe measures to surpress any attempt to use it to speak out against the government. It was this latter concern that caused the founders to create a separate freedom for the press.

At the time, the clause applied to newspapers and pamphlets and books that came from a printing press, because those were the media that could reach large audiences. But if the size of the potential audience is the reason behind the clause, it should expand beyond these traditional media to include television and the Internet, and that is how courts tend to apply it. It can even cover blogs like this one. (See Obsidian Finance Group, LLC v. Cox, (9^th Cir., Jan. 17, 2014).)

The U.S. Supreme Court developed the rules for media in a line of cases that began in 1964 with New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In deciding the case, the Supreme Court noted that America is committed to “uninhibited, robust, and wide-open” public debate on public issues. Recognizing that no test is perfect, the Court believed it was better to err by protecting some false speech than by hindering truthful speech. According to the Court, requiring a speaker/writer to guarantee the truth of his statements at the pain of paying large libel judgments would inhibit criticism even when the speaker believed his statements were accurate.

For that reason, the Court held that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’.”

The New York Times case was limited to comments about public officials. The Supreme Court later extended the same test to comments about public figures (e.g., the athletic director of the University of Georgia). It’s much harder to get away with libelous statements about private individuals, however.

But even the President of the United States can sue you—and win—if you libel him or her intentionally. You may even be liable for libel if you just don’t care whether you are telling the truth about a public official. That’s because of the exception for actual malice.

So what is actual malice? We’ll talk about that next month.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

Dee Henderson's Undetected

                                                          By Kelly Bridgewater

As a young girl, I gravitated toward mysteries as my chosen genre. Yes, I owned every Baby-sitter Club and  Sweet Valley High or University book when they came out. But the mystery books in both of their series where my favorite. Going to the library during the summer for their summer reading program was an hour bike ride away from my house. My mother would load all three of us children up on our bikes around nine o’clock once the chores were done, and we would head to the library. I devoured every single Nancy Drew (there were only 60 when I was reading them) and Encyclopedia Brown book. Returning home, we stopped at White Castles for lunch and pedaled the rest of the way home. Arriving at home, I would lie on the floor and absorb the words Carolyn Keene wrote on the page. Usually by the end of the day, I would have one of the books done. By the end of the week, I would need to return to the library to check out more books because I already finished what I read.

            This love of mysteries expanded to my adult life. Working at Light and Life Christian Bookstore right out of high school, I became more knowledgeable about Christian authors besides C.S. Lewis, Robin Jones Gunn, Max Lucado, and the Left Behind Series. While working the late shift at work, the bookstore wasn’t as busy, so we were allowed to read books while there were no customers around. One of my fellow employees was reading a book with an interesting cover. It turned out to be The Healer by Dee Henderson. It had just come out, and he was totally invested in the plot line. Up until that point in my reading life, I didn’t know there were Christian authors who wrote in the suspense genre. Another perk of working at the bookstore, we could check out any book on the shelf, read it, and then return it. Being curious, I checked out The Negotiator by Dee Henderson. My love of Christian romantic suspense blossomed. Within a week, I tore through every single book by Dee Henderson. Still today, I recommend all her books to anyone wanting a new book.

With the release of Dee Henderson’s new book, Undetected, I’m excited to tear into the plot poured on to the page. Unfortunately, after finishing the 476 page plot, I wasn’t as impressed as I was with her O’Malley’s series. This book would be better categorized as contemporary romance than a romantic suspense. Being a writer of romantic suspense, I have studied authors such as Dee Henderson, Kathy Herman, Colleen Coble, Brandilyn Collins, etc to learn the craft. There is NO suspense in the entire book. The plot revolves around the budding relationship between Commander Mark Bishop and Gina Gray. A suspenseful moment occurs during the black moment, but nothing happens to put either of the hero or the heroine’s life at stake.

          As a writer, one of the first things told not to do in a story was to bore the reader with back-story or technical jargon or the author will lose the reader. The first 100 pages are basically filled with submarine and sonar vernacular. I, however, flipped the pages skimming for dialogue to show some action happening on the page. Because of this problem, the story that didn’t center around the romance of Mark and Gina dragged and had me skimming through the story.  

        Dee Henderson did a good job at developing their relationship slowly like a real relationship would happen. But one of other problems I had with the plot was the idea of Mark Bishop and Daniel, a fellow sonar Navy man, who was interested in Gina. Mark and Daniel have a few discussions about their joint interest in Gina. Mark and Daniel talked about Gina in a polite and non-argumentive way, which I found really, really unrealistic. I, personally, would have enjoyed seeing Mark and Daniel argue with each other about who would earn Gina’s heart and, ultimately, her hand in marriage.

      In my opinion, the book should delete the first 100 pages, and be labeled as a contemporary romance with more heat between Daniel and Mark Bishop as they fight to prove themselves worthy of Gina.

If you have read the book, do you agree with my review or did other plot points bother you?

Kelly Bridgewater holds a B.S. in English and a M.A. in Writing from Indiana State University on the completion of a creative thesis titled Fleeting Impressions, which consisted of six original short stories. She has been published in the Indiana State University Literary Journal, Allusions, with her stories titled “Moving On” and “Life Changing Second.” In fall 2011, she presented her essay, Northanger Abbey: Structurally a Gothic Novel, at the Midwestern American Society of 18^th Century Studies Conference. Kelly’s writing explores the ideas of good prevailing over evil in suspense. Kelly and her husband reside with their three boys and two dogs.