Libel Claims May Stick to Self-Published Memoir

(CN) - The Iowa Supreme Court extended the First Amendment umbrella against libel to Internet publishers, but declined to protect the Internet activity of private individuals also.

Writing for a five-member majority, Justice Edward Mansfield said the court preserved a distinction between media and nonmedia, even though the digital age has leveled the playing field for writers to reach mass audiences.

The proliferation of social media has given anyone "with access to a computer a ready platform for spreading falsehoods or engaging in cyberbullying," Mansfield wrote. "Yet unlike the media, these individuals may have fewer incentives to self-police the truth of what they are saying. For example, they may speak anonymously or pseudonymously. Also, because they are not in the communications business, they may care less about their reputation for veracity. In short, as compared to a generation ago, nonmedia defendants may have a greater capacity for harm without corresponding reasons to be accurate in what they are saying."

With this in mind, the court preserved libel charges against self-published author Scott Weier but granted summary judgment to his printer, Author Solutions Inc.

Weier had hired Author Solutions to help him self-publish his memoir, "Mind, Body and Soul," wherein he detailed a religious resurrection from a tumultuous marriage.

One passage of the book, which is generally critical of Weier's ex-wife Beth, alleges that Beth developed either bipolar disorder or borderline personality disorder because her father, Gail Bierman, molested her as a child.

For about $3,000, Author Services formatted and typeset the manuscript, designed the cover and gave Weier 250 copies of the book to self-distribute.

Scott distributed a couple of dozen copies of the book around Clear Lake, Iowa, and Beth and Bierman filed suit after deeming the passages about them libelous.

A Polk County judge refused to grant either Weier or Author Solutions summary judgment, but the Iowa Supreme court gave the publisher relief on Friday.

The 68-page ruling refuses calls from Weier and Author Solutions to revise the standard for defamation under Iowa common law.

"ASI and Scott argue that the Internet is 'a great equalizer' and has rendered libel per se obsolete because the targets of defamation can respond quickly at minimal cost," Mansfield wrote. "We are not persuaded, however, that the Internet's ability to restore reputations matches its ability to destroy them."

Weier's case illustrates the need to preserve a distinction in libel law for the media and private individuals, according to the decision.

"A generation or two ago, it is entirely plausible that if Scott had decided to write a memoir about his life, it would have stayed by his typewriter and never been copied or distributed," Mansfield wrote. "Now, however, for a relatively modest price, it is possible to print 250 copies of a professional-looking book alleging that one's ex-wife is a victim of child abuse from her father. We think libel per se plays a useful role in helping to keep our social interactions from becoming ever more coarse and personally destructive,"

Author Services qualifies as a media defendant, even though Weier paid it "to publish his book, rather than the other way around," according to the ruling.

"Both our precedents and the United States Supreme Court's have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for," Mansfield wrote.

Author Services deserves summary judgment because there is no evidence that it published Weier's words with "legal malice."

"There is no indication in the record that ASI doubted the veracity of the book or had a specific reason to do so," Mansfield wrote, abbreviating the publisher's name. "Although Scott's book vented at times about his ex-wife, it did not do so to a degree or in ways that would have put ASI on notice he was making things up. Much of the book consists of Scott's religious reflections."

There is still a triable issue of fact, however, as to whether Weier's conduct was "outrageous," according to the ruling.

In a separate opinion, Justice David Wiggins said he concurred in the result only.

"I think the majority bypassed an important opportunity to articulate a test or factors that would assist our courts and attorneys in identifying a media defendant in future litigation," Wiggins wrote.

"By not providing a test or factors, the majority fails to perform one of our primary functions and gives credence to the dissenter's argument that technological developments in communications and the proliferation of new electronic media will make it difficult, if not impossible, to distinguish between media and nonmedia defendants," he added. "I believe the orderly development of common law requires such an analysis, and this court could - and should - develop principled standards to differentiate between media and nonmedia defendants."

Justice Daryl Hecht partially dissented, saying that Weier also deserved summary judgment from the libel claims.

"Technological developments in communications - including the ascension of the Internet and electronic communications - lead me to conclude libel per se is a doctrinal relic that is not worth preserving," Hecht wrote.

Precedent concerning libel law sought to avoid "'intolerable self-censorship' caused by the harsh rule of strict liability in the common law," according to the dissent.

Considering this purpose, and recognizing the right to free speech under our constitution is a right belonging to media and nonmedia speakers alike, I would hold article I, section 7 permits no distinction between media and nonmedia defendants in the law of defamation. As I believe proof of fault is required against all defendants in libel cases under our constitution, I would ... abandon the doctrine of libel per se."

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