Literature and litigation

A sort of exchange of professions is going on in the worlds of literature and litigation. Judges are reading novels, like book reviewers. And critics are now reviewing legal decisions, like lawyers.

The most sensational of the cases that have the book reviewers on the edges of their chairs -- just unable to put that brief down! -- is Bindrim v. Mitchell and Doubleday.m In 1971 Gwen Davis (now Mitchell) wrote a novel, "Touching," about an encounter group in California. Paul Bindrim was the leader of an encounter group in California that Gwen Davis joined for a marathon just before writing her novel. Bindrim claimed to see himself in Simon Herford, the guru of "Touching." He produced witnesses who agreed. Furthermore, he made the case that the vulgar language Gwen Davis put in Simon Henford's mounth constituted defamation of his profession (psychologist) as well as of himself.

A jury awarded $75,000 in libel damages to Bindrim, and a California appellate court upheld the verdict. When the Supreme Court refused to review the case, Doubleday filed its own suit against Gwen Davis for $138,000 -- its share of the damages ($50,000) plus interest and all court costs.

Elliot Fremont-Smith, book editor of the Village Voice, concluded, ironically , that "had Davis written a nonfiction work describing Bindrim factually, there would have been no libel."

There was conjecture that Scott Fitzgerald -- for just one example -- would have been vulnerable to libel for "The Great Gatsby" (not to mention "The Last Tycoon") according to the Bindrim precedent.

John Hersey advised his fellow novelists: "We have finally begun to pay the price for blurring the distinction between fact and fiction."

the argument broadens beyond the rights and responsibilities of novelists when the case of United States v. Sneppm is considered. Frank W. snepp III, a former CIA agent, wrote "Decent Interval" (1977), a well-documented essay critical of the conduct of the American government during the last days of the vietnam war. Snepp was not accused of making public any classified information. He was sued simly for violating his employment contract, in which he pledged "not to publish . . . any information . . . relating to the Agency" without prior approval. The Supreme Court, by a 6-3 vote, upheld the judgment of breach of contract, maintaining that Snepp had been "unjustly enriched" and compelling him to forfeit his earnings from "Decent Interval" -- about $120,000 so far.

The law-and-lit. reviewers point out that a small army of Watergate authors have been enriched by their best-selling restrospectives of far less blameless days as government employees without suffering Snepp's fate. The analysts have also raised a more fundamental question: Was Snepp's contract a violation of his rights under the First Amendment?

The First Amendment -- this finally becomes the issue behind all the other issues. Ralph Nader, whose very function as consumer advocate rests upon freedom of speech, sued the columnist Ralph de Toledano for alleged abuse of that right. De toledano accused Nader of falsification and distortion in his famous indictment ("Unsafe at Any Speed") of the Corvair. Writing in the Village Voice -- which has become a regular commentary on the First Amendment -- Nat Hentoff suggest that Ralph Nader is now playing General Motors (the powerful vested interest) to little-fish de Toledano. Hentoff does not defend de Toledano's argument; he does contend that Nader should have answered the argument in kind: "With words alone, Nader could have pulverized the conservative columnist. But he hired a lawyer instead. If there is ever an epitaph for free speech in America, the tombstone should read: 'They hired lawyers insteads.'"

Is freedom of expression too important to be left to the courts? A lot of literary courtroom-watchers also feel this way about the suit being brought by Lillian Hellman against Mary McCarthy for remakrs on the Dick Cavett Show. Like Ralph Nader, Lillian Hellman used to be on the other end of the free-speech question, back in the witch-hunt days of Senator McCarthy.

We have become a litigious people who seem to hold others more and more strictly accountable even as we feel less and less responsible ourselves. And so a man who claims his marriage was ruined by his drinking is suing a vodka company.

Once the courts tended to be protective where the First Amendment was concerned, even when those protectec were pornography pedlars or native-fascist demagogues. Free speech was perceived to be a rare and delicate seed that ought to be allowed to grow according to the parable of the tares and the wheat.

Now the mood appears to have changed, and one is held as accountable for one's words as a manufacturer for dfective brakes. Opportunistic writers will not be hampered -- opportunist never are. The danger is that serious writers and serious publishers will become more cautious, more self-censoring -- less ready to rish what Fremoth-Smith eloqently calls "that loveliest and lowliest of abstactions -- routine and everyday freedom."