It’s all Brandewyne, All the Time

Thanks to Darlene Marshall, who pointed me to the most excellent links (and gave me the kick in the pants I needed to finally consider subscribing to Publisher’s Weekly) we have some clever, and somewhat dishy news.

Seems Rebecca Brandewyne won a considerable settlement in a libel suit against a vanity publisher, AuthorHouse, for publishing a work written by her ex-husband. He wrote a book wherein he stated that she had committed illegal acts, threated his life, and – slap your grandma – plagiarised her books.

Miss Snark and Making Light both wrote about the verdict, in which a Kansas district judge ruled that Ms. Brandewyne be awarded $200,000.00, writing in his decision that AuthorHouse had “acted towards the plaintiffs with wanton conduct.”

What blows my petard out of the water is the comments: in both entries on both blogs, someone brings up the idea that the verdict is a threat to first amendment rights.

Are. You. Shitting. Me?!

This goes back to Jan Butler’s whinging that her first amendment rights were restricted when someone disagreed with her position and called her on her homophobic, bassackward reasoning. Candy went off on a wicked-sharp rant about, among other things, people crying about their first amendment when someone disagrees with them.

Let’s get some First Amendment education on the table, shall we? First up: The ACTUAL FIRST AMENDMENT to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Does this give you the right to say anything you want should your knickers get in a twist?

That’d be “No” for $200,000.00, Mr. Trebek.

Per the Supreme Court decision in 1964 in New York Times Co. v. Sullivan, public officials and public figures “can sue for libel if the publisher published the statements in question with ‘actual malice.’”

“Actual malice” can be difficult to prove, but it includes the idea that there was present “knowledge that the information was false,” and that the item was published with reckless disregard of whether it was false or not.”

The term, for your curiosity, comes from existing libel law, because it is hard to prove malicious intent (see also: ‘hate crimes legislation’), but it is possible to prove that the writer knowingly published a lie.

In this case, Gary Brock, the author of the book, Paperback Poison,, “had informed AuthorHouse during contract negotiations that iUniverse had rejected the manuscript on the grounds of possible libelous content,” according to Publishers Weekly.

The requirements for “actual malice” are a rather old standard in free speech cases, and Rebecca Brandewyne was able to prove in not one but two courts that both parties proceeded with the publication of the content without regard for the potential liability.

It’s not a free speech issue for either party. Gary Brock lied. Period.

And AuthorHouse knowingly published material containing libelous content, and, per Judge Goering’s decision, failed “to act when it had information that would have placed a prudent publisher on notice that the content of Brock’s book was harmful to the plaintiffs.”

(What cracks me up is the judge’s comment that a publisher “dealing in volume” cannot be expected to “read every book cover to cover.” How blithe! How kind to excuse them of responsibility for what they publish! What’s next, a publishing house team of AuthorHouse, Alloy and Kaavya Viswanathan called Unconscious Internalization?) 

Bottom line: it’s not a free speech issue. As Darlene Marshall, who asks that I make sure y’all know she’s not a lawyer, said to me, “The courts have established the burden of proof in libel cases, and Brandewyne made her case.”  Well said. And good on Brandewyne.

And for the love of the National Enquirer, I hereby declare that no one can gripe about abuse of the first amendment unless someone has placed Super Glued duct tape across their mouth. It’s old. It’s cliche. And nine times out of ten, it’s wrong.