Anthony Elia

The New York State Court of Appeals dismissed a libel case against an independent newspaper– in which the plaintiff had already been awarded a substantial damages verdict at trial – because the statements made were merely opinion. 

The newspaper printed an editor’s note stating that the plaintiff, Monroe Mann, the town attorney, was the true power behind the throne in the town’s politics, was a “political hatchet Mann,” and was leading the town to destruction.  

The Court reiterated the three major factors in determining what constitutes opinion: whether the language used has a precise meaning; whether the statement is capable of being proven true or false; and whether in the full context of the statement readers understand that the statement is opinion rather than fact.

The Court of Appeals emphasized that the key to determining whether a statement is opinion or fact is its context, and that figurative or hyperbolic language is not determinative.

The decision affirms existing New York law, which generally gives broad protection to opinions.

Ballantine has called off publication of author Sherry Jones’s racy historical novel about Aisha, the young wife of the prophet Muhammad.  Random House was set to publish the novel, “The Jewel of Medina,” on Aug. 12.

According to an Op-Ed in the WSJ (Aug. 6, 2008), Thomas Perry, deputy publisher at Random House Publishing Group, said that the company received “from credible and unrelated sources, cautionary advice not only that the publication of this book might be offensive to some in the Muslim community, but also that it could incite acts of violence by a small, radical segment.”

The publisher and Jones have entered a termination agreement so that the book can be shopped to other publishers.  Other details about the termination, including the advance have not been released.

As the “The Jewel of Medina” situation illustrates, an author should seek an objective standard for manuscript approval and publication such as “professionally competent and fit for publication.”  Such contract language may give an author some recourse, even if it doesn’t change the publisher’s actions.