Why can you write about some people and not others?

Your publisher cleared the senator chapter without a comment. The chapter about your old business partner came back covered in flags, and he’s never held office in his life. From where you sit, it looks backwards, or political, or personal.

The review followed a list. Six questions, run on every name in your manuscript. I know the list because I ran it. I was general counsel of a US book publishing company with global reach and read the flagged passages every week.

The law does the first sorting, on purpose. American defamation law gives writing about public people more room than writing about private ones, wide enough that one sentence can be fine in chapter four and expensive in chapter five. The publisher owns the rest of the list. The full map of publishing exposure is in What You Can and Can’t Say. Defamation and privacy law vary by state, so this page is general information rather than advice about your manuscript. Where the law splits, I’ll say so.

Why does the law protect writing about public people more?

The Supreme Court built room for error into debate about public life by raising the bar public plaintiffs must clear. A public official suing over your account of his official conduct must prove actual malice. Your neighbor, in most states, proves something closer to carelessness.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), held that a public official cannot recover for a defamatory falsehood about his official conduct unless he proves the statement was made with actual malice: knowledge that it was false, or reckless disregard of whether it was false.

The word malice misleads almost everyone who meets it. The test asks about your knowledge, and the Supreme Court made it subjective in St. Amant v. Thompson, 390 U.S. 727 (1968): reckless disregard requires evidence the publisher “in fact entertained serious doubts as to the truth of his publication.” The same opinion holds that failure to investigate does not by itself establish bad faith. The half I rarely heard quoted back: the standard protects a careless writer more than a worried one, because the careless writer never formed the doubt.

Three years after Sullivan, Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), carried constitutional limits past government officials to public figures. The Justices divided on the formulation, and a majority favored the same actual-malice standard, which is the version that governs now. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), then set the floor for everyone else: states may define their own standard of liability for defamatory falsehoods that injure a private individual, so long as they do not impose liability without fault. States answered, negligence being the common choice.

Gertz explained the line: public people usually have better access to the channels that answer a false statement, and they accepted scrutiny when they stepped forward. A private person did neither. The gap between actual malice and negligence is the gap between the senator’s chapter and your neighbor’s.

What makes someone a public figure?

Two routes, and Gertz named both. Fame so pervasive the person is a public figure for all purposes. Or, in the Court’s words, having “thrust themselves to the forefront of particular public controversies” to influence the outcome, public for a limited range of issues only. Gertz calls the second route the more common one.

The cleanest articulation comes from Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), which asks three things in order. Was there a genuine public controversy, a real dispute whose outcome affects people beyond the participants? Did this person play a prominent role, seeking to influence the outcome? And was the statement germane to that role? Formulations differ by state, and classification is decided by the court hearing the claim, but those three questions run underneath most versions.

Waldbaum ran a large supermarket cooperative and lost on classification: he had publicly championed policies reshaping his industry, so the court held him a limited-purpose public figure for that fight. The same opinion carries the warning for business memoirs: an executive title at a prominent company does not, by itself, make someone a public figure. Your former CEO can be famous inside the industry and private in the eyes of the law.

Can a private person become fair game by entering a controversy?

Rarely, and almost never by accident. The Supreme Court spent the late 1970s refusing the conversion, three times, in ways that map onto your manuscript.

In Wolston v. Reader’s Digest Association, Inc., 443 U.S. 157 (1979), a man who ignored a grand jury subpoena and drew press coverage for it was still a private figure: involvement in a newsworthy matter does not automatically transform anyone, and a defendant must show “more than mere newsworthiness” before the actual-malice burden applies. In Time, Inc. v. Firestone, 424 U.S. 448 (1976), a heavily covered society divorce was not a public controversy, going to court was compelled rather than voluntary, and a few press conferences changed nothing.

Hutchinson v. Proxmire, 443 U.S. 111 (1979), answers the move authors reach for first. A senator ridiculed a scientist’s federally funded work, then argued the resulting attention made the scientist a public figure. The Court refused: those charged with defamation “cannot, by their own conduct, create their own defense,” and media access that exists only to answer the attack does not count. Applied to your manuscript: your book cannot promote its own subject into a public figure. The status has to exist before you publish.

Why do publishers ask questions the law never asks?

A publisher is pricing a claim rather than predicting a verdict, so the review runs on four more factors no fault standard mentions.

Newsworthiness of the passage. Defamation needs falsity; the privacy claims mostly run on truth. In the states that recognize a claim for public disclosure of private facts, the question is whether a truthful intimate disclosure served a legitimate public concern, and states weigh that concern differently. In my own review practice, the tether decided it: a disclosure tied to the book’s public point survived far more often than one that read as score-settling.

Provability. Courts test fault after a claim arrives. A publisher tests evidence before the book ships, because the house may one day need to stand behind every word of the passage, on a schedule it does not control. In my review years, the file decided more flags than the passage: contemporaneous documents, corroborating witnesses, your own records.

Living or dead. Defamation generally requires a living subject, and in most states a claim over statements about the dead fails. One exposure shrinks. Others stand. Living relatives can be identifiable in the same passage, some states protect a deceased person’s name and likeness by statute, and a false claim about the dead still costs the book its credibility.

Litigiousness. Publishers ask whether your subject is the suing kind. The question embarrasses people, and it belongs in the analysis: a weak claim from a litigious subject costs real money before any court reads a word, and a strong claim from someone who will never sue may cost nothing. Prior lawsuits, wealth, counsel on retainer, public threats: counsel weighs all four, and the cost math is the subject of “I don’t care if I get sued.” Your publisher does.

The sixth factor explains the strangest pattern in review. Some portrayals end the release conversation before it starts, because nobody signs a release for the chapter that calls them a thief. When no release would ever cover the portrayal, the publisher moves from permission to proof, which is why two authors can get opposite instructions about the same kind of person. What to do when the answer is no is in What to do when they refuse to sign a release.

How do the five kinds of subjects compare?

Fault standards are the law; the practice column is what I watched houses do with them.

Each row states a tendency. Classification and fault are decided case by case, under the law of the state where a claim is brought.

One habit to break: renaming a person does not move them between rows. A renamed neighbor is still a private figure when her circle can recognize her, because identification runs on job, place, timeline, and relationships rather than the name. Does changing the name actually protect you? walks that test in full.

How does a publisher’s counsel sort your cast?

In about an hour, into four rough bins, and the last bin drives the flags.

What should you build before you turn it in?

A cast list, in five columns: the person, public or private, what the manuscript claims about them, what evidence supports each claim, and their realistic response. Build it in an afternoon, attach it at delivery, and you have answered the six questions before anyone asks them.

The middle columns do the real work. Writing the claims out makes you read your chapter the way a legal reader will, one assertion at a time. The evidence column shows you, before anyone else, which passages rest on documents and which on memory. The last column is the underwriting question, and you know the answer better than any lawyer: what will this person actually do?

"Every author thinks the review is inconsistent, and from outside it looks that way. Inside, the same six questions ran on every name in the manuscript. Answer them yourself, in advance, and the review stops feeling like weather."

Guy Muller, former general counsel of a US publishing company with global reach

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