Tuesday, February 4, 2014

The Unreliable Narrator: Lance Armstrong's Books Are "Protected Speech" and the court rejects claims of "False Advertising"

The story as reported in Cycling News "US judge rules Lance Armstrong lies are protected speech"
A little background from Cycling News:

Five readers of the 'It’s Not About the Bike' and 'Every Second Counts' had filed a suit in Sacramento federal court against the books publishers Random House, Armstrong, his manager Bill Stapleton and associate Thomas Weisel, asking for more than $5 million in damages, claiming they were fooled by the books and that they should have been described as fiction.

At the time the books were considered as inspirational, especially for cancer sufferers, and true accounts of Armstrong['s] career and comeback from testicular cancer. Their contents were shown not to be true after Armstrong was suspended by the United States Anti-Doping Agency (USADA), lost his seven-Tour de France victories and then confessed to doping.

The legal ruling from late last year (as reported in publishers marketplace)...

A month after holding a hearing on a proposed class action lawsuit against Lance Armstrong for making false statements in his books IT'S NOT ABOUT THE BIKE and EVERY SECOND COUNTS, California Federal court Judge Morrison England threw out most of the suit. Siding with Armstrong and his publisher Putnam (named in the suit along with new parent company Penguin Random House), he wrote: "The Court concludes, despite plaintiffs' allegations that the Armstrong books contained false and misleading statements, that the content of the books is afforded full First Amendment protection," England wrote in his 39-page ruling, issued Tuesday afternoon.

The plaintiffs, who sought $5 million in refunds and other damages, tried to make the case that Armstrong's untruthful claims that he never used performance-enhancing drugs constituted false advertising that deceived customers into buying his books. Importantly for publishers in general, England found that the publisher's materials were as protected as the author's work: "The promotional materials relating to the Books are inextricably intertwined with the books' contents, which is non-commercial speech...Thus, these promotional materials are also entitled to full First Amendment protection as noncommercial speech."

In addition, England ruled, "The conduct at issue is the speech about the book and Armstrong's speech about whether he used drugs. Armstrong's lies about his use of drugs are simply not criminal conduct." Separately, Judge England clarified that Armstrong's books were not "advertising for a product" but his "account, albeit partially untruthful, of his life and cycling," and thus again met the standard for protected speech, and did not need to be classified as "fiction."

It's an interesting case, and something to consider as we create our characters and figure out who's telling our stories to the reader.

How reliable are OUR narrators?

How reliable are our characters?

Illustrate and Write On,

p.s. If you want to know more about Lance Armstrong's fall, you can check out Oprah Winfrey's interview with him here.

1 comment:

Jennifer Tzivia MacLeod said...

Another fascinating question - how reliable must we be when we're creating memoir? I've seen many of those little disclaimers where the authors tell you they are recounting conversations as they recall them, to the best of their ability. Perhaps this is similar...

However, I also don't understand how FIVE readers can claim $5 MILLION in damages. Seems like a ridiculous suit to me.

Jennifer at WriteKidsBooks.org