For those who haven’t heard the background story:
Ellora’s Cave has been in the news much over their failure to pay authors, editors, and cover artists, while engaging in significant shenanigans. One of the people who has collated and distributed news about Ellora’s Cave’s failures is Jane at Dear Author, who wrote this post.
Jaid Black and Ellora’s Cave sued Jane for defamation over that post, which has caused an outpouring of support for Jane.
In response to aforementioned support, Jaid Black tweeted:
That’s true if you’re a private citizen and people are talking about your private affairs. But in this country, we want to make sure that people have the right and ability to talk about matters of public concern, to express their opinion on them, and to speak freely without worry that their speech will be chilled. So if you inject yourself into an issue of public concern, you may be a limited purpose public figure–that is, someone for whom the standards differ.
This is not legal advice–I cannot give legal advice–but I set this out to explain what I am about to do next.
It seems to me that the business of Ellora’s Cave–a multi-million dollar business, one where the owner has sought and obtained media attention from national news media, a business that deals with hundreds if not thousands of authors, editors, and cover artists, and who has thousands if not hundreds of thousands of readers who take an interest in it–is a matter of public concern. It seems to me that Ellora’s Cave and its owner, Jaid Black, by seeking out that media attention, by broadcasting announcements to its authors–announcements that were reprinted and referenced in publishing news ranging from Publishers Weekly to The Passive Voice–is a limited purpose public figure.
And the standard for defamation actions for limited purpose public figures is substantially different than for private citizens. The standard is that the speaker must be acting with actual malice: that is, they must know (or be reckless about knowing) that the statements they are speaking are false. What that means is that if I say something and I have a good-faith belief that what I am saying is true–even if it later turns out to be false–I am not going to be held liable for defamation.
I point this out because I am extremely, extremely pissed off about this lawsuit. I believe that this lawsuit was filed for the purpose of chilling speech–and for the purpose of chilling true speech about a matter of imminent public concern. And I think that despite the outpourings of support, it’s working. This lawsuit is about teaching authors to sit down and shut up, even if their livelihood is at stake.
And I can’t blame people who do sit down, and who do shut up as a result. Because the truth is, knowing that some blowhard will spend $3,000 to put together a shitty complaint to threaten you? That you’re going to have to pay an attorney to fight that bullshit suit, and that if you want a good attorney, that might cost you well into the tens of thousands of dollars? That’s going to shut up a lot of good people. Even if they know they will prevail at summary judgment because it’s a bullshit complaint, having to pay an attorney sucks, and it sucks balls. (For those surmising that Jane may be able to get attorney fees back–I wish it were that simple, but I put the likelihood of that near zero, both from the legal perspective and also from the ability to recover the money even if she got the judgment.)
But me, personally? I can handle a lawsuit. I know I’ll prevail in court, and if push came to shove, I can afford the attorney.
So I’m going to be tweeting harsh things about Ellora’s Cave that I believe to be true, and that I am confident will not be held defamatory under the limited public figure test because they are not made with actual malice. If they sue me, they sue me, and I’ll consider it money well spent.
I can’t give you legal advice about what to tweet. I can’t tell you that tweeting is safe and that it won’t harm you. But I’m going to be tweeting these things under the hashtag #notchilled–because I refuse to have legitimate speech about a matter of public concern chilled by a self-important bag of farts who happens to have access to a lawyer.
If you’re willing to join in, do so.