FREEDOM OF SPEECH:WHAT DOES IT MEAN FOR WRITERS?

Today I’m going to poke around in the legal weeds again to talk about a tough but very important topic for writers: freedom of speech. As you read this, keep in mind that I am not a lawyer and this is not legal advice. It is meant only to help you understand what Freedom of Speech is and how it may affect authors. The first thing to know about Freedom of Speech (at least in the US, where it is protected by the Constitution) is that it only affects the behavior of the government and government entities towards speech. So, for instance, you are free to tell a government official that he is a weasel without fear of government reprisals, but your teenager is not free to call his dad a weasel without fear of parental reprisals. If he gets grounded, his free speech has not actually been attacked. And you cannot call your boss at a private company a weasel without fear of being fired. The Constitution is generally all about how the government behaves, but that can include how the law (as an extension of the government) behaves.

Low Value Speech
Freedom of Speech is not without limits, even in the eyes of the law. Freedom of Speech limits its protection over low value speech such as false speech that damages a person’s reputation, threats against others, speech intended to provoke another to violence, and things like some forms of pornography and obscenity. There are also limits on some areas of advertising (for example, years ago, Listerine was required to stop saying their mouthwash lessened the severity of the common cold, since it didn’t do that. Courts decided protecting people from being defrauded was more important than protecting the company’s write to freely claim untrue things). But even within these loopholes, the government treads carefully, protecting a person’s freedom of speech as much as possible without resulting in damage to others.

Freedom of Speech and Trademark
But what does that mean for writers? Are we free to say anything we like? No. In a previous post, we covered things like defamation and invasion of privacy in memoirs, but there are other legal things we can bump into. One of these involves the use of trademarked products. Mostly the court views fiction writers as relatively unaffected by trademark law. So legally, it’s fine to have your young characters build with Lego blocks or race inside for a Band-Aid after a bike accident. You really only run into legal problems with fiction if you appear to be trading on the product’s name or disparaging the company or its product. For fiction, about the only way you might be in trouble for trading on the product name would be if you put it in the title of your piece. So you wouldn’t use The Lost Lego Mystery as the title for your chapter book because it puts a trademark name right in the title. Similarly you wouldn’t use Band-Aids and Broken Hearts for your YA novel title for the same reason. You would probably not lose a case for using a title like that (because the court generally leans toward protecting the Freedom of Speech of a writer over the rights of a company), but why look for a lawsuit in the first place? When in doubt, leave it out—at least of your title.

The second trademark issue is a bit like the defamation problems you can run into if you publish something saying mean things about people. If you say negative things about a company, especially things you made up, then you can be face trouble for disparaging a company. For example, you wouldn’t want to set a series of murders in a Walmart as the company would likely see that as disparaging. Also if your serial killer always buys his duct tape and zip ties at Walmart, and quips that “Walmart is a killer’s best friend,” you could be in danger of crossing a legal line.

These issues aren’t fixed by tweaks of the company name (when it’s obvious to absolutely everyone that you still mean that specific trademarked product or company.) So if you have a tragic story where a child chokes on a handful of plastic Lego bricks, you still might have a problem with the company. Now, most of the time, even if a writer is sued over one of these kinds of issues, the courts have found in favor of a writer’s right to tell their story their way. But because publishers don’t enjoy lawsuits, even when they win, many will either require or request that you not use trademarked products or companies in your titles, and not disparage trademarked products or companies. Some publishers will even go so far as to ask you not to use trademarked products at all. Most magazines feel this way, for instance, but book publishers can vary in how comfortable they are with the use of trademarked products in fiction.

Businesses Are Free Too
My freedom to write whatever I like doesn’t mean a private business (a publisher) is required to publish it. We don’t have a government wing of publishing that is required to publish everything written. As writers, getting published involves a choice: working with a publisher or DIY. If you work with a publisher, they can make requirements of you. They can require that your book not include violence against women or require that your book not contain sex. Or, equally, they can push you to add in romantic elements or up the conflict even to the point of violence. Publishers are as free to publish what they want as you are to write it. So when you make the choice to work with a publisher, you must reach a middle ground where both sides are happy with the book that results, which may mean compromise on both sides. This is not constraining your Freedom of Speech. This is balancing the freedom of two different parties.

Sometimes a writer may create a book that doesn’t interest any publisher at all. Maybe the book is too edgy or maybe it’s too old-fashioned or maybe it’s simply not written in a style the publishers wish to invest in. Maybe the publisher thought they would like the book, but now feels the buying public won’t get behind the book for some reason so changes their mind about publishing. That doesn’t mean a writer’s Freedom of Speech is being affected. (It might be a breach of contract and there may be legal recourse, but it won’t be a Free Speech issue). The writer can still self-publish. As long as a writer has an alternative (even if it’s one he doesn’t much like) his Freedom of Speech is intact. It’s only when he has been completely silenced (thrown in jail, fined, or something similar) that there may be some Free Speech issues involved.

Freedom of Speech and Public Reaction
Sometimes books and publishers run into situations where the public has a big problem with something in a book. This can lead to backlash on social media (which can sometimes become quite harsh) and reduction in sales, as well as issues with booking public speaking opportunities. I’ve known of authors who were invited to speak at schools, only to have the school cancel when parents reacted to some of what they considered problematic content. Schools argue that their first responsibility is to serve the children and the community, not the writers. Writers argue that children aren’t well served if they cannot have access to the books that might help them navigate difficult situations. But overall, these are not free speech issues. Authors are free to speak, but when and where can be entirely dependent on who wants to host them. Censorship does not necessarily conflict with Freedom of Speech. We can argue that censorship is a serious issue, but it’s not necessarily a free speech issue as long as it doesn’t prevent the author from being able to publish a book (even if the author must use self-publishing) and speak his mind through his own outlets.

For some authors, having a book that is widely read is more important than confronting issues that may result in strongly negative reactions. Thus, some authors may shy away from controversial topics. Other authors may do the same, not because they are afraid of backlash, but because they do not feel they could deal with the topic in an authentic or useful manner. Authors self-censor for lots of reasons and that also isn’t a free speech issue. As children’s authors, we should always be aware of our responsibility to speak what is helpful for the reader and for society at large. This may mean you do choose to confront an issue that is controversial, because you feel it is the best way to write something helpful for the reader. If and when you do, it’s best to have your eyes wide open and be ready for any blow back that may occur, so that you can handle it professionally (and not be blind-sided by it emotionally). Many writers have careers full of confrontations with controversy. It takes courage, but if it’s where your stories go, then you’ll have to go with them, ready for the tough times that may come with them. Writing always requires a degree of fearlessness, so go with courage. Readers count on you.

With over 100 books in publication, Jan Fields writes both chapter books for children and mystery novels for adults. She’s also known for a variety of experiences teaching writing, from one session SCBWI events to lengthier Highlights Foundation workshops to these blog posts for the Institute of Children’s Literature. As a former ICL instructor, Jan enjoys equipping writers for success in whatever way she can.