Reality-based fiction has suffered another major blow as a Georgia jury awarded $100,000 in damages to a woman who claimed that a character in the best-selling novel “The Red Hat Club” falsely portrayed her as an “alcoholic slut.”

Vicki Stewart, 63, was the inspiration for a character nicknamed "SuSu" in Haywood Smith's whimsical book about five middle-aged women who have been best friends for 30 years. Even though “The Red Hat Club” never describes Stewart as alcoholic or promiscuous, she sued Smith in August 2004 for defamation and invasion of privacy.

In what one First Amendment expert called a “moronic” decision, the Georgia Court of Appeals last year allowed the case go to trial. And a Hall County Superior Court jury found Nov. 18 that  the character of SuSu was a portrayal of Stewart and that the allegedly defamatory statements in the book could reasonably be understood to state actual facts about her.

Plaintiff's attorney Joann Brown Williams had brandished a clean, white piece of fabric before the jury in her closing argument and written the word “slut” on it with a permanent black marker.

“This is what [Smith] did to the fabric of Vicki Stewart’s life,” she said. “She made her into a slut, an atheist and an alcoholic. Ms. Smith’s irresponsible words have stained the fabric of Vicki Stewart’s life. These stains will never come out.”

The damages award may not even cover Stewart's legal costs in her five-year court battle. The jury declined to award her attorney fees.

But the finding of liability against Smith and her publisher, St. Martin's Press, is further evidence that “libel-in-fiction” lawsuits -– once surefire legal losers -– are gaining traction in the courts.

In March 2008, for example, a New York judge stretched libel-in-fiction precedent by ruling that an attorney could sue the producers of “Law & Order” for falsely portraying him in an episode about judicial corruption. Ravi Batra was the model for the character of Ravi Patel, a case-rigging lawyer.

If anything, Stewart's case was more of a stretch since she does not even share any of her name with the character of Susan Virginia McIntyre Harris Cates, aka SuSu. Under the libel-in-fiction standard of Springer v. Viking Press, 458 N.E.2d 1256 (1983),

the identity of the real and fictional personae must be so complete that the defamatory material become a plausible aspect of the real life of the plaintiff.

The “real issue” in these cases, as the Legal Satyricon blog has noted, is that there is a legal “difference between a character being based upon someone and a character identifying and describing someone.”

Smith has known Stewart since they were growing up in Atlanta and used events from Stewart's life for the SuSu character, including the death of her first husband in a car accident and her engagement to a man that ended after he stole her insurance settlement. SuSu, a flight attendant, is also portrayed as so promiscuous that when she talked about having a “layover,” it “was a double entendre of galactic proportions.”

“The Red Hat Club” falsely depicted Stewart as an “alcoholic slut who drinks while working as a flight attendant,” she said in a complaint filed in August 2004.

The Court of Appeals said the case was triable in part because the “negative depiction [of SuSu] is commingled with specific references to SuSu’s background, references which Smith admits were drawn directly from Stewart’s life.” It also noted that Stewart's friends had “gossiped about her and questioned whether Stewart was, in fact, the promiscuous alcoholic portrayed in the book.”

But during the trial, friends from Stewart's bridge club testified that the novel didn’t make them think less of her. “They understood SuSu’s promiscuity was not Ms. Stewart, they understood that SuSu’s drinking was not Ms. Stewart,” Smith attorney Thomas Clyde argued to the jury.

Hugh Ruppersburg, an English professor at the University of Georgia who testified for the defense, cited Ernest Hemingway’s "The Sun Also Rises," F. Scott Fitzgerald’s "Tender is the Night" and "The Great Gatsby" and Flannery O’Connor’s "Good Country People" as examples of authors basing characters on real people.

Peter C. Canfield, another lawyer for Smith, told the Fulton County Daily Report that the jury "were essentially instructed that, in Georgia, modeling a fictional character after a real person is a strict liability offense."

"Under that standard, as the jury was instructed on Georgia law, a whole host of authors that we all know and are highly esteemed would be considered serial tortfeasors," he said.

Unfortunately, Smith has indicated she will not appeal the verdict. “I hope this is healing for Ms. Stewart,” she told the Gainesville Times. “It was never my intention to bring her any harm. I hope this is healing for her and she can put this behind her, which I certainly plan to do.”

In another libel-in-fiction case, a Los Angeles judge earlier this month said the First Amendment does not protect the writer of an episode of “CSI: Crime Scene Investigation” from being sued for using the names and likenesses of two realtors in her script.

By Matthew Heller
11/19/09