: Re: What exactly is "fair comment?" From what I understand, truth is a defense against a charge of libel. More to the point, I've been told that a statement need not be true if it represents

@Odierno164

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One of the most interesting court cases was the one where a former Miss Wyoming sued Penthouse (and an author). She won an award of .5 million in a lower court, but the verdict was overturned on appeal. This largely set today's boundaries of "libel in fiction."

There are three major issues, of which two played a role in the trials. The first issue was that the heroine of the piece a thinly disguised version of Miss Wyoming. The jury found that this was clearly the case, and awarded damages because the judge (wrongly) told them that this was the crux of the case.

On appeal, an appellate court found that the plaintiff (Miss Wyoming) had failed a second test, establishing the alleged "fiction" as a factual statement. The reason was that the fiction had men "levitating" in mid air (a physical impossibility) after Miss Wyoming supposedly performed oral sex on them. That is, the court found that "levitation" sent a "strong signal of fiction" that would prevent "reasonable" people from taking the story as true.

A third issue was raised by a dissenting justice, "defamation." The judge conceded that the "levitation" was fictitious, but that the allegation of "fellatio" was defamatory. At that time, (the late 1970s), it was considered "deviant" behavior and standing alone, it might have been considered defamatory. The other justices found that the piece was distateful, but protected under the First Amendment because it did not meet requirements to be a (false) statement of fact.

It's interesting to note that the standard for "defamation" changes over time. In the late 1970s, contemporaneously with the above, a judge found that calling someone a "bastard" was not defamatory in part because one out of four newly-born Americans at the time were literally born on out of wedlock. After 2015, it's probably not defamation to falsely call someone a "homosexual," because a "reasonable" person would not find it highly offensive" (although an "unreasonable" person might. Standards for allegations of "unchastity" particularly for a woman, have also changed. Alleging that someone is not a virgin probably wouldn't be defamatory (80%+ of unmarried 20-year olds are not), whereas alleging that someone "has a different lover each night" might well be.

In the case of Red Hat Club, there was no strong "signal of fiction" that acted as a disclaimer. In fact, the "back story" was so true to life that people reasonably believed that the main story was similarly true.

I am not a lawyer but I have done "paralegal" work for company lawyers in my "day job."

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