Law.com reports on a case in which the Georgia Court of Appeals has committed the crime of attempted murder — of literature. 
The Book – The Red Hat Club, by Haywood Smith
The case, Smith v. Stewart, 660 S.E.2d 822 (2008), arises from the book, The Red Hat Club, by Haywood Smith. For those of you who don’t know, the Red Hat Society is a real group. It describes itself as a dis-organization. It has few rules, except members must be women over the age of 50 and must wear purple dresses and red hats while they go out to lunch and flip the bird to age-ism.
The book is the story of five women who have been best friends for thirty years. Georgia, SuSu, Teeny, Diane, and Linda meet up once a month for what the author’s website describes as “a delicious monthly serving of racy jokes, iced tea and chicken salad, baskets of sweet rolls, the latest Buckhead gossip, and most of all–lively support and caring through the ups and downs of their lives.”
The drama to the story kicks in when Diane finds that her husband has purchased a condo for his mistress with the family’s retirement funds.
[T]he Red Hats swing into action and hang him with his own rope in a story that serves up laughter, friendship, revenge, high school memories, long-lost loves, a suburban dominatrix, and plenty of white wine and junk food. From the 1960s to the present, The Red Hat Club is a funny, unforgettable novel that shows the power women can find when they accept and support each other. (source)
Google Books). provides some excerpts from the work. The whole book isn’t there, but you can get the picture by scanning a few pages. More importantly, you can read some of the introduction to the character, SuSu by reading here.
Enter the character, SuSu, and the real-life woman, Vickie Stewart
The fictional character, SuSu, shares some key similarities with the real woman, Ms. Vickie Stewart. SuSu and Stewart both graduated from the same high school, and they both lost their first husbands to car accidents and they both had a hard time collecting the insurance settlements due to the interference of a subsequent lover. Both became flight attendants later in life and SuSu’s friends in the book call her the “world’s oldest stewardess.” (source).
Despite the resemblance between SuSu and Ms. Stewart, SuSu has many unflattering personality characteristics, which Ms. Stewart denies sharing with SuSu, and to which Ms. Stewart takes offense. SuSu is an Atheist, a “right-wing reactionary”, a drunk, and is very promiscuous. The book says, for example, that when SuSu was on a layover, the term was “a double entendre of galactic proportions.” (personally, I think “Atheist” is a compliment, but that’s me).
Ms. Stewart and the book’s author have, apparently, been life-long friends. That probably ended when Stewart filed suit against Ms. Smith for defamation. Stewart claims that the character identifies her, and defames her.
The Case
Stewart filed suit against Smith, St. Martin’s Press, and the secondary publishers, asserting claims for defamation, invasion of privacy, and infliction of emotional distress. Stewart claimed that there were so many significant similarities between her life and that of SuSu that they would lead a “reasonable person who knows [her] and who reads the book to reasonably conclude that the character SuSu is Vickie Stewart.” The complaint also charged that, as a result, Stewart is falsely depicted as an “alcoholic slut who drinks while working as a flight attendant” and that such depiction is defamatory per se. Smith v. Stewart, 2008 Ga. App. LEXIS 393 (Ga. Ct. App. 2008)
All of the defendants moved for summary judgment on the ground that the book is a work of fiction. “They also argued that Stewart could not establish the facts necessary to sustain her claims and that the novel could not reasonably be understood to be stating actual facts of and concerning Stewart. ” Id.
Stewart filed her own motion for partial summary judgment and showed that Smith knew about the key events in Stewart’s life, told Stewart that her life story was interesting, and that she had used information about Stewart’s life to create the SuSu character. Smith admitted that she used details of Stewart’s life for the character, but that she fabricated other events and details, and based some other parts of SuSu on other people.
In this case, in addition to the numerous unique facts about Stewart which Smith used to create SuSu’s character and background, as outlined above, the book includes many other references to distinct, albeit more common, similarities between Stewart and SuSu. These similarities include their propensity for being chronically late, their hair color (red/auburn), their chain-smoking and smoker’s cough, and the descriptions of their parents’ occupations and their childhood homes, as well as other facts about Stewart that were not matters of public knowledge until the publication of the book. In fact, the court trial found at least twenty-six specific examples of similarities between the two. As noted above, these similarities led many readers to immediately conclude that SuSu was based on Stewart.
Further, the defendants have conceded that SuSu was inspired by and based in part on Stewart, that there are numerous similarities between Stewart and SuSu, and that SuSu is recognizable as Stewart. The defendants argue, however, that there are also many differences between SuSu and Stewart, such as their names and the names of their friends, and the fact that, unlike SuSu, Stewart was not a high school cheerleader or a member of a sorority and does not belong to a group called The Red Hat Club. Those differences, however, merely create a jury issue as to whether the character of SuSu was a portrayal of Stewart. Id. (citing Fetler v. Houghton Mifflin Co., 364 F2d at 653-654).
Under these circumstances, Stewart should be allowed the opportunity to prove that, despite the fictional label, the character of SuSu bears such a close resemblance to Stewart that a jury could reasonably conclude that the character was intended to portray her. Whether the book was actually understood by third parties to be about Stewart is, of course, a question of fact for the jury.
But it is “fiction”
It is a common lay-person’s error to think that labeling something as “opinion,” means that it automatically loses any ability to be defamatory. While opinion is always protected and can never be defamatory, merely labeling it as such does not give it a magic blanket of legal protection. Conversely, failing to label something as opinion does not strip it of its First Amendment protection.
Similarly, while fictional events and characters are per se not defamatory, the mere label fiction does not act as a magic talisman against a defamation suit. “In other words, the test for libel “is not whether the story is or is not characterized as ‘fiction,’ or ‘humor,’ but whether the charged portions, in context, could be reasonably understood as describing actual facts about the plaintiff or actual events in which she participated.” Id. (citations omitted.)
The Secondary Publishers
The court avoided at least one very dangerous precedent. It held in favor of the secondary publishers: Those who published the audiotaped, internet, and large-type versions of the book. The court recognized that there was no evidence of negligence on their part.
Personally, I am not sure how anyone could hold ever a secondary publisher liable by applying a mere negligence standard. Imposing a duty of care on a re-publisher to independently verify facts, or fact-based fiction, in a novel would seem to be a judicial declaration that secondary publishers would need to go out of business altogether.
Defamation of character based on characters
Defamation cases brought as a result of movie and book characters are not all that uncommon. See, e.g., Davis v. Constantin Costa-Gavras, 654 F.Supp. 653 (S.D.N.Y. 1987). In that case, the SDNY held that due to the plaintiff’s status, he needed to demonstrate actual malice in order to prevail in a defamation case based upon a fact-based fictional character in the movie Missing. Failing to do so, the complaint could not go forward. Additionally, there were issues in that case (although I do not believe that they were dispositive) with regard to the dramatized character actually identifying the plaintiff.
In Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980), the Second Circuit came to a contrary opinion. In that case, the defendant published a book called “Match Set,” about a transsexual named “Melanie Geisler,” who engaged in lots of weird sex and in rigging tennis tournaments. A real girl by the same name was none too pleased, filed suit, and the 2d Circuit held that there were sufficient grounds to allow the case to get to a jury.
Both of these cases came to logical conclusions — unlike Smith v. Stewart. In Davis, would be awfully strange for a man who doesn’t share the name of a character to complain about the portrayal of a fictional character in a film who happened to share his common first name.
However, in Geisler, given the fact that the name “Melanie Geisler” isn’t exactly common, it seems reasonable to let a jury decide whether or not a fictional character was a defamatory portrayal of a real girl by the same name. The burden upon the author in that case was relatively low — take a little time to make sure that there is nobody out there by that name.
Commentary on Stewart v. Smith
Stewart v. Smith departs from this logical trend and creates some miserable law. While I agree that inaccurately describing Ms. Stewart (or anyone else) as a drunken, whoring, nut-case is likely defamatory, the book does not describe Ms. Stewart as such.
The real issue that the Georgia Supreme Court should cover, if this case is appealed, is to educate its lower court on the difference between a character being based upon someone and a character identifying and describing someone.
Anyone who has ever written a piece of fiction understands that there is no such thing as a truly “invented” character. From the Bible to Borat, authors of works of fiction base the events and people in literary works on real events, people, and things. No piece of fiction is woven from pure wool, but is rather a quilt of the author’s experiences, imagination, conscious, and subconscious.
The character SuSu is a fictional character inspired by real people, places, and events. Nevertheless, the book is clearly a work of fiction. You can take a scan of excerpts from the book here on Google Books). The centerpiece in the idiocy of this decision is found here:
The record shows that Smith based much of the book upon true stories, some of which actually involved Stewart, that she set the action in actual restaurants, hotels, clubs, and other buildings located in and around the city of Atlanta, and that she researched the details of the book to ensure their accuracy and to add “credibility” to the book. And the book is not just a “light-hearted romp” that simply describes a few “implausible” antics by the main characters; it also includes stories about real adult issues, including adultery, divorce, spousal abuse, mid-life crises, deceit, disappointment, and regret. In fact, in an e-mail message to a fan of the book, Smith admitted that her “books deal realistically with sexuality, anger, and women in crisis who make destructive choices[.]”
Perhaps the Georgia Court of Appeals would have been happier if The Red Hat Club were written with all of the literary skill and authenticity of “Doc Hollywood.”
Despite the fact that the SuSu is based upon Vickie Stewart, no reasonable juror could conclude that this book of fiction defames Stewart. In fact, any juror that did so should be immediately forcibly sterilized so as not to further pollute the gene pool, thus causing the continued devolution of the human race from Homo Sapiens to Homo Walmartus.
The standard for fiction liability should be much higher than the low bar set by this decision. In this case, the court found that there were 26 similarities between SuSu and Stewart. So, what is the magic number of similarities required for identification? Nobody knows. Under this decision, fiction authors will need to re-edit their works, making sure to wash away indicia of authenticity from any works that might portray any character in a non-flattering light. Essentially, the entire genre of reality-based literature is at risk. The First Amendment can not tolerate such a miserable, unworkable, and unclear standard.
I, myself, am briefly portrayed in Gentlemanly Repose, and the portrayal is none too flattering. So, anyone who wants to ask “how would you like it if it was you?” can kiss my Sicilian ass. It has been me. I recognize that Gentlemanly Repose is a book of literature, and that the author took a little dramatic license with his portrayal. I am happy to have been a piece of mortar in the literary edifice he constructed, and I’m not whining for a monetary handout from a court.
If this moronic decision stands, any author who sets a story in Georgia, talks about a Georgian, or even sells a book of reality based fiction in the State of Georgia, will have to carefully vet each character to make sure that it doesn’t resemble anyone at all, lest some unethical sleaze comes knocking, looking for a piece of the author’s success. The average book contract pays very little. We’re talking four figures here. What will become of our literary landscape if publishers and authors need to whitewash all literature in order to avoid the next Stewart? Is our culture not dumbed down enough by the marketplace? Does the fear of liability need to further dowse the flames of American creativity?
Ms. Stewart should, since she denies being an Atheist, pray to her god that her victory is reversed on appeal. If this case really was about her wanting to defend her good name, she should consider how she would like to be remembered. Would she rather be remembered as the basis for a fictional character? Or would she rather that her legacy be that of the ass-hat who killed American literature?
HT: Debra Weiss
