RPS Reality Check
by Dara Sloan
In the words of author Harlan Ellison, "Everyone is entitled to an informed opinion." Kit Mason's column on RPS was filled with misinformation.
There are nice, polite, legal words concerning writing and publishing stories saying that real people did things they never did. They are said by polite attorneys in their $600 suits, in front of judges in their official robes. Those words include, but are not limited to: libel, slander, invasion of privacy and defamation of character.
This is true if the author of the story is claiming it to be factual. Yes, publishing an RPS story without a disclaimer is highly unwise, to put it mildly. A story clearly labeled as fiction, however, is by no means guaranteed to meet the legal definition of libel. In one notable case, former Miss America contestant Kim Pring sued Penthouse Magazine for publishing a story in which a character with many of her defining characteristics engaged in sex acts during the Miss America competition. She won a multimillion dollar verdict, which was subsequently thrown out on appeal. The appellate court concluded that the story could not reasonably be understood to describe actual facts about Ms. Pring. Likewise, one would be hard-pressed to claim that a story stating "This is fiction" at the top is an assertion of fact.
All of these words I'm defining and explaining describe activity that a judge and jury may well consider as illegal. How illegal? You could go to prison for it, or pay million-dollar fines. [...] If the charges are misdemeanors, you won't lose your right to vote as a side effect if a court convicts you of any of them, but it does mean that for the rest of your life if you're applying for a job and the application wants to know whether you've ever been convicted of a crime ...
Her statements that RPS authors could be sent to prison or convicted of crimes are just flat-out wrong. Libel and slander are torts, which fall under civil law, not criminal. It is also worth noting that every multi-million-dollar libel judgment has been levied against a publishing agency with millions in assets, and millions of readers. Let's look at the logistics of RPS: a webpage that gets a few thousand hits in a good month, run by a fan who, in all likelihood, doesn't have ten thousand dollars to his/her name, let alone ten million. The plaintiff would spend more on lawyer fees than he/she had any hope of recovering in damages, on the uncertain chance that fantasy stories would meet the definition of libel, and the publicity from the lawsuit would do more to put the stories in the public eye than the original website did.
Sure, there may be some celebrities so homophobic that they would sue an RPS writer just to make an example of him or her. Writing a story where Tom Cruise and Mel Gibson shag like rabid weasels is probably a bad idea. But do they joke in interviews about having sex with each other (like Matt Damon and Ben Affleck), grab each other's asses on national television (like Ryan Stiles and Colin Mochrie), or kiss each other on stage (like Bono and Edge of U2)? Many RPS-bashers are presuming a level of homophobia on the part of RPS subjects that probably isn't there if the celebs in question are comfortable enough to do things like these in public.
Here's the practical political reality: this isn't the 1960s or 1970s any more. This is not a time when liberalism and radical thought are particularly acceptable in political, legal or governmental circles. This is a time when the backlash against "promiscuity" and "sexual misbehavior" and "pornography" is strong, and when the vast majority of judges in our fair land are right-wing, hard-line, law-and-order, by-the-book Republicans.
Please. The USA is not going to turn into the Republic of Gilead just because a Republican is in the White House. We didn't return to the Dark Ages during twelve years of Reagan and Bush Sr., and chances are we won't now. I don't recall the existence of legalized gay marriage/domestic partnership, or even any top-rated tv shows with gay main characters during those supposedly-enlightened halcyon days of the 60s and 70s, either. There is more acceptance of homosexuality in the US today than ever before, and we are still moving forward. That is not going to change overnight. Plus, there were law-and-order, by-the-book Republicans on the Supreme Court that unanimously decided in favor of pornographer Larry Flynt in Falwell v. Hustler, another landmark First Amendment case. The job of a judge is to interpret the law, and the law does not decisively say that fiction can be libelous.
You have every right to be as stupid as you want, and act as irresponsibly and illegally as you want -- and to have to live with the consequences.
That much is true, but to claim that RPS is legally riskier than character slash is an act of ignorance at best and hypocrisy at worst. Writers of fictional character fanfiction can be, and have been, targeted by copyright holders. As I write this, Warner Brothers is considering legal action against writers of Harry Potter slash. Authors like Anne Rice and Anne McCaffrey have aggressively pursued writers of any fanfic, not just slash.
Face it: if a writer is that worried about getting into legal trouble, he/she would be well-advised to stick to writing original fiction.