The first principle of the medical doctor’s Hippocratic oath is: above all, do no harm. And I think that applies to the fiction writer, too, presuming his subject is worthy of such caution. In fact, most book contracts from major publishers require a guarantee from the author that the prospective manuscript’s contents will not cause injury: will not, for example educate the reader on constructing a firebomb from hair gels and shaving cream or give lessons on how to hotwire a Cadillac – though such information is possibly available on the internet.
And then there is the matter of libel, the injury to a living person’s reputation caused by misrepresentation. Some important elements of that definition need to be restated: to be libeled, the person needs to still be alive and needs to demonstrate that the false picture of the subject would cause a goodly bunch of people (a judicial phrase) to think a lot less of the plaintiff. The victim does not have to prove to the court that the writing was done with malicious intent, as many believe. Even accidental calumnies can be libelous. But at least in the United States judicial system, such rules do not all apply to book subjects famous enough to be considered public figures. The reasoning seems to be that celebrities often have adequate means of self-defense for their reputations and that a firm judgment or opinion of their actions, character, demeanor, and motivations previously has been formed and is not likely to be altered by one writer’s perspective. Also, the Court is at pains to emphasize 1st Amendment values, especially the importance of vigorous discussion and criticism of public officials and the famous, even if sometimes falsehoods creep in.
Writing that is purportedly non-fiction is examined far more stringently for libel than a fictional text, but there are instances in which fiction writers have had to justify their material against claims of libel, or have had their novels rejected by publishers because of fears of legal action.
Consider The Public Burning, Robert Coover’s imaginative retelling of the 1953 execution of Julius and Ethel Rosenberg following their federal conviction for supplying the Soviet Union with nuclear secrets. E. L. Doctorow had handled the Rosenberg material in his 1971 novel The Book of Daniel, but names were changed and Doctorow’s focus was on the fictionalized life consequences for the children of executed spies in the Cold War period. Whereas in Coover’s 1977 satire, the facts were often authentic, Time magazine and other news sources were quoted extensively in a sarcastic way, and a still-living historical eminence, the Watergate-stained ex-President Richard M. Nixon, was mocked by a fictional romance with Ethel Rosenberg and by a finale in which Nixon submits to anal sex with Uncle Sam. Calculating that the novel would collect significant review attention, the publisher of The Public Burning initially printed a stunning number of copies so books would be available even if there was a legal threat that halted print runs. But there was, in fact, no litigation. Coover’s portrayal of the ex-president, the Rosenbergs, and America in the fifties was manic and even cruel, but in the case of Richard Nixon the fictional narrative was so outrageous that no one could have believed the scenes authentic, and were a formal complaint actually made it would only have called more attention to a novel that Nixon and his friends wanted Americans to forget as quickly as they forget the tabloid headlines about aliens or Nostradamus at the supermarket checkout line. And cold feet caused the book’s own publisher to let The Public Burning sell out and pretty much disappear.
Harper’s Magazine recently has been serializing John Robert Lennon’s Happyland, a zany satire about Happy Masters, the founder of a doll company who uses her fortune to finance the renovation of Aurora, New York, home of an all-female Wells College. The problem was that a woman named Pleasant Rowland, the founder of the American Girl line of dolls, sold the line to Mattel for $700 million and formed a foundation to oversee renovations in Aurora, New York, and Wells College, her alma mater. Happyland was originally scheduled for publication by Norton, but in an August 27 New York Times article Lennon claimed that when he “handed in the final draft in mid-January 2005, ‘I wasn’t in touch with my editor anymore, I was in touch with a lawyer . . . They were asking me to remove any reference to dolls or a doll company. I basically refused.’” And Norton backed out, as did Lennon’s British publisher, Granta. Was it that Pleasant Rowland cannot be considered a public figure, or that thirty years after the appearance of The Public Burning we are a far more litigious society in which uncomplimentary resemblances in print are sure to invite a subpoena?
In the nineteenth century, Happyland would have been considered a roman à clef, a work using the pretensions of fiction to represent actual events or personages that insiders would recognize. But in those nineteenth-century novels there was a certain decorum in handling such truths; the novel might begin: “In a dull rural village in France there once lived a Madame B— who, bored with her husband, a physician, entertained herself with an illicit romance.” Such vagueness strikes me as more ethical, courteous, and jury-friendly than the one John Robert Lennon chose.
Since historical fiction generally concerns people who are long dead, many of the constraints and worries of potential litigation are lifted. Courts have ruled that you cannot defame the dead. And there are, after all, two kinds of historical fiction. In one, wholly imagined characters shift about in a researched world of yesteryear, such as in Jean Auel’s pre-historic The Clan of the Cave Bear, or, as in The Three Musketeers of Alexander Dumas, cease their duelling or love affairs long enough to encounter the historic queen or Cardinal Richelieu. In the other, more difficult kind of historical fiction, the majority of the protagonists and antagonists in fact existed and are named, the situations and atmosphere are as authentic as possible, and only the most incidental characters and scenes are wholly imagined. I’m thinking of such stories as Jim Shepard’s indictment of Attorney General John Ashcroft in his collection Love & Hydrogen, and of my own novels Desperadoes, The Assassination of Jesse James by the Coward Robert Ford, and Hitler’s Niece. When my friend Russell Banks was writing Cloudsplitter, on the life of the abolitionist John Brown, he maintained that his obligation to history was negated as soon as he called the book a novel. I find that ethically problematic, for as Ken Manaster, a law professor at Santa Clara University, put it, “To deceive people about what was not only is disrespectful, but also undermines our collective conversation about our path, hindering our thinking about what could be.”
Of course, there is a certain arrogance in writing historical fiction at all since one can’t really say he understands his friends, let alone a person he’s never met, in a historical period that precedes his own. But that arrogance is mitigated by extensive research, and it seems to me the rules of the game require the boundaries of good guesses about what was earlier said and done, without varying from the factual or probable. And in America today we commonly have such an ignorance of history that it seems to me a kind of malfeasance, a violation of the public trust, to distort the record still further.
Plagiarism is so often inveighed against in university settings that it became national news when Kaavya Viswanathan, a Harvard sophomore who’d made a financially stupendous deal on a two-book package of young adult novels, was accused by the Harvard Crimson of borrowing many aspects of Megan McCafferty’s young adult novels for How Opal Mehta Got Kissed, Got Wild, and Got a Life. Viswanathan weakly apologized, admitting that Megan McCafferty was her favorite author, and saying she merely had a retentive mind and the lifting was unconscious. But further analysis showed that whole pages with only occasional variations in wording had migrated from the older author’s books to her own. I have no idea if there was a financial settlement with McCafferty, but Little, Brown and Company, the publisher, withdrew all editions of the book from stores and cancelled the contract on the second book in the series. Also stopped was a movie production by DreamworksSKG. Viswanathan’s plagiarism was costly.
But when is the accusation of plagiarism not in fact that? Recently the authors of Holy Blood, Holy Grail sued the mega-millionaire Dan Brown for incorporating their historical rubbish into his best-selling novel The Da Vinci Code. But they failed in court because they were forced to concede that their book was based on centuries-old legend and innuendo, and if so the findings were fair game for a fictional approach insofar as there was no close imitation of their language and thought. Ethically, it would seem Dan Brown was off the hook, but it was a form of bad manners not to cite or attribute his dependence on the hypotheses of Michael Baigent, Richard Leigh, and Henry Lincoln.
So what to do about pseudonyms? Some years ago critical praise was lavished on a novel about a Chicano family in East L.A., Famous All Over Town by Danny Santiago. But there was outrage, from some, when it was discovered the book was not written by a young Mexican-American, but an older Anglo named Danny James, who incorporated his experiences as a social worker into a fictional narrative. James never claimed to be someone he was not, he just adopted a Hispanic last name and let his readers jump to conclusions about who he was. This has been done by female authors who choose to write in the overwhelmingly male genre of science fiction, or male authors whose predilections are for the overwhelmingly feminine romance novel. Such pseudonyms strike me as ethically neutral.
But then there is the case of Jeremy or J. T. Leroy, purportedly a male, teenaged hustler who was forced by his mother to work as a cross-dressing prostitute in truckstops across the South and finally wound up, a homeless junkie, on the streets of San Francisco. Because of these horrors, J. T., it was said, was pathologically shy, so others would read in his stead at public events from his confessional novels Sarah and the revealingly titled The Heart Is Deceitful Above All Things. Celebrity writers and movie stars championed the cause of an AIDS-infected waif presumably in his twenties, who reached out to them by an impressive network of faxes, phone calls, and e-mails – never in person. Soon he was being translated into twenty languages, making movie deals, and composing lyrics for the music group “Thistle.” But it was all a literary hoax. The ever-hidden J. T., with his feminine voice, seemed to be in fact a 39-year-old mother from Brooklyn named Laura Albert.
How is this different from other pseudonymous authors? Because it was a con. She had to preserve a false identity because the fame of the books was based not on their literary merit, but on their insistence that their horrific details, though overtly fictional, were in fact thinly concealed memoir. And since few readers were acquainted with Polk Street hustlers, the habits of johns, or the operations of methamphetamine labs, they could be fooled just as easily as those paleoanthropologists in England who in 1912 were taken in by the fraudulent Piltdown man.
But as fine a fiction writer as Mary Gaitskill noted in one interview, “It’s occurred to me that the whole thing with Jeremy is a hoax, but I felt that even if it turned out to be a hoax, it’s a very enjoyable one. And a hoax that exposes things about people, the confusion between love and art and publicity. A hoax that would be delightful and if people are made fools of, it would be okay— in fact, it would be useful.”
Another hoax was found out this year when the best-seller status of A Million Little Pieces and its sequel, My Friend Leonard, caused reporters to investigate some of the wild claims James Frey made in his supposed memoirs. The web site “The Smoking Gun” was particularly responsible for exposing both memoirs’ exaggerations and preposterous lies. And it says something about the age we’re living in that Frey, like J. T. Leroy, generally overstated the ugliness in his character: he was not in jail for eighty-seven days, merely five hours; he did not get into a wild and violent fracas with police; he did not beat up a priest in the Paris cathedral of Notre Dame; his girlfriend Lilly did not hang herself, nor did she slit her wrists as Frey later claimed in a public revision of his story, because Lilly, it would appear, never even existed. His face should bear a hideous scar on his cheek, according to his first book; it does not. And dentists scoff at his preposterous claim that he had root canal surgery on two teeth without anesthetic. Eventually an embarrassed Oprah Winfrey, who’d chosen A Million Little Pieces for her book club, forced James Frey to issue a public mea culpa on her afternoon talk show.
J. T. Leroy and James Frey have their heritage not in literature but in the nadir of the popular television talk shows of Jerry Springer and Maury Povich, to name just a few: confessional programs in which whatever is vulgar, salacious, idiotic, grotesque, and contemptible in a person’s history is given its hour of national exposure and serious consideration.
The ethical bankruptcy of these publishing fakes extends, of course, to the internet and the phenomenon called “sock puppetry,” in which some writers assume false identities in order to post positive comments about their own work, or enlist friends and family to post a bevy of five-star reviews of their latest book on Amazon.com. But there are so many ethical problems riddling the internet that this would appear to be the least of them.
I finally think fiction's ethics boil down to “Do unto others as you would have them do unto you.” The questions that have not been asked by some fiction writers I’ve mentioned, but ought to be are: Would you be irritated if someone quoted you in such a way without attribution? Is the work wholly your own? Would you be annoyed in this circumstance if you found out another person’s identity was a lie? Are your depictions motivated by the impulses of vengeance and cruelty, or by the Aristotelian standards of truth and beauty? Are you creating a work of art or simply a tawdry and meretricious vehicle for financial gain? And as years pass will you look back on this fractional period of your writing life with immense satisfaction or regret?
Ron Hansen is Gerard Manley Hopkins, SJ Professor in the Arts and Humanities at Santa Clara, and teaches creative writing and literature in the English Department. Kenneth Manaster in the SCU School of Law contributed to this essay.
January 2007
