On limited purpose public figures #notchilled

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:

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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.

32 thoughts on “On limited purpose public figures #notchilled

  1. I know there is plenty of material available online, both current and past, about Ellora’s Cave and its principal(s). Thank you for taking a stand on this, Ms Milan. My hat is off to you.

  2. Courtney — I love your strategic mind. Now I have to figure out what I know about Ellora’s Cave that I could tweet using that hashtag. And I need to start following your Twitter, I guess.

  3. Applauding you here and couldn’t agree more about the negative consequences of this suit for ALL authors, and bloggers, too. Thanks, Courtney. Expect to see my retweets!

  4. Standing up and applauding you. I know nothing about Ellora’s Cave and so cannot join you in your #notchilled tweeting efforts, but I stand behind you in spirit.

  5. Well said! If I could add trumpets blasting and applause to this comment I would. It is times like these that I truly appreciate being part of the whole Romancelandia community. This isn’t just an issue of EC attacking one of our own. It’s an issue of them trying to silent voices and bully. THAT SHOULD NEVER BE TOLERATED! I hope EC is ready for some heat.

  6. “If they sue me, they sue me, and I’ll consider it money well spent.”

    Just when I think you couldn’t get any more badass … makes me SICK that there’s no Anti-SLAPP law in Ohio (and apparently many other states). I grew up with that as part of the legal norm here so it never occurred to me that other places didn’t have those kind of protections.

  7. YES!! I have some of your work and love your writing. And right now, I’m proud to be an author! Thank you for standing up like this. Ellora’s Cave isn’t the only publisher having issues or threatening to sue. (I have one from an ex publisher, including the speech he cited, as well as back up stuff of what I said, so could prevail, but I don’t have the money for it.) I have spoken my mind when asked, anyway. I wish I could do more. I am backing up the fight for Ellora’s cave with tweets and comments. Thank you for so eloquently pointing this point about public interest out. Much like your books, you rock!

  8. @Isobel Carr: an award of costs to the winner, except in exceptional circumstances is the norm in Canada and judges use this tool regularly at all stages of litigation. It is a very effective tool to discourage frivolous and vexatious lawsuits and lawsuits with very little chance of success. It also allows those with fewer resources to defend against threats like EC makes because it levels the playing field a bit – the issue of the impecunious plaintiff is always a problem though.

  9. When this was just about sympathy for fellow cover artists who had all been let go at once and not been paid, the stories about the editors and authors in the same boat — it was just bad. Companies fail, it happens. It’s shitty for all involved, but it happens.

    But this lawsuit. This. This is something else. And you are exactly right that this is about people’s opinions and voices being chilled and that is sooo not cool. I applaud you for your courage and the risk you’re taking for the betterment of authors, editors and cover artists who can’t speak up, but for the writing community as a whole as well. I’ve been working in this industry for a bunch of years now and as wonderful as it is, there’s a lot of “shut up” and take it. So thank you for not shutting up or taking it. YOU ROCK!

  10. I’m seeing the lawsuit get a lot of publicity and none of it is making Ellora’s Cave and Jaid Black look good. I think it’s getting precisely the opposite effect she’s hoping for. I know a lot of people are scared. But a lot of people are speaking up and out too and the audience has broadened considerably, which makes me very happy.

  11. @Kaetrin: I think the trick is going to be to continue to spread the word in the long term.

    I usually don’t have too many readers, but I plan on keeping track until this is resolved, one way or the other.

  12. You should probably have Jane send a note to Popehat.

    That is a lawyer blog, that looks into issues on liberty and the chilling of free speech and then lights the “popehat” signal to get people who do need this kind of help, mainly free representation.

    Here are examples: http://www.popehat.com/tag/popehat-signal/

    Probably have to write Ken White, an email explaining, or log into the forums and get a message to them that way. But it’s worth a shot.

  13. Courtney,
    You are seriously one kick-ass chick! I am horrified by what Tine Engler is doing and I hope it stops soon. I found some of my favorite authors at Ellora’s cave but have stopped buying the books due to how expensive they became and because word started getting out about how her author’s and staff were treated.
    I will retweet like crazy if it helps shut down her strong arm tactics.

  14. Thank you. I was considering reviving my blog with a post about this, but the truth is that while I have an umbrella LLC to encompass my author works, I haven’t tied that blog to the company paperwork well enough yet, and I don’t have the money to even get a summary judgement. Plus, my state’s anti-SLAPP laws only provide protection about reporting on government or environment-related issues, from what I can tell. I will limit what I say on the background information to directing to other people’s articles.

    This brings up an important point: IANAL, but I think it is important to read the actual legislation on anti-SLAPP laws as it pertains to the state in which you reside if you are a blogger. Just because there is an anti-SLAPP law on the books doesn’t mean that it protects all forms of public speech from frivolous lawsuits.

    Bravo to Ms. Milan for staying on top of this issue, and I wish Jane Litte all good fortune in prevailing against EC.

  15. I’m a minor minnow in the river – aka just a reader – and I have no personal interactions with anyone involved here. BUT, I support you and Dear Author (aka Jane) in everything that you’ve mentioned.

    My worry, and this is probably hidden in the small print of the US legal system (of which I know nothing about), is that if EC win ANY component of this suit, what is there to say that an author (ANY author) can file a complaint of defamation against any blogger or reviewer in the future, who does not like a particular book that that author has written??

    The ramifications are enormous, and totally against any interpretation of “Freedom of Speech”. OK, this is probably extreme; but a possible worthwhile thought should Jane’s defense slip up – which I hope it will not!!

    Just sayin’ 🙂

  16. Thank you, Courtney, for doing this! I’m not an EC author, but I have a close friend who is, and I enjoyed a brief stint in the erotic romance epublishing industry (with a smaller, but well-run epublisher who, as far as I know, continues to do right by their authors to this day) back in the day. I remember how powerless we all felt for our fellow affected authors if their publishers began having troubles. It kind of brings to light how imbalanced the distribution of power is in the industry. I’ve got no pull and no information I can share, other than to lend my support and thank you for your #notchilled hashtag.

  17. Courtney you are one of the smartest and bravest women in the publishing business. Thank you for helping the rest of us to understand the big picture and our value as authors.

  18. Thank you for standing up and standing out! I applaud you taking to the airwaves to stop an entity from curtailing speech. It’s shameful and ironic considering EC is a publisher and has had to face censor/censure. If enough people speak out, this matter will not become a precedent by which other companies/larger more powerful beings seek to suppress opinion contrary or otherwise. Namaste.

  19. Thank you, Courtney, for vocalizing what so many of us are thinking, and for taking a stand against the tyranny of Jaid Black. This is your own “huzzah” moment.

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