Literature and Libel

This article explores cases in which publications that purport to be fiction have led to claims of defamation. It begins with an analysis of the common law, which shows the central importance of proving that the defamation was "of and concerning" the plaintiff. Next, the article considers the impact of recent constitutional developments in the area of nonfiction defamation. The authors argue that fiction is entitled to no more and no less constitutional protection than nonfiction publications.

They thus reject absolute privilege on the one hand and strict liability on the other. Then then develop analogies to the Times-Gertz privilege that they consider appropriate to the special nature of fiction. Four paradigms are analyzed with attention centering on the reason why the trier of fact concluded that the allegedly fictitious character was in reality the plaintiff.