Sunday, January 15, 2006

James Frey, the Tip of the Iceberg

The mini-scandal around James Frey's memoir A Million Little Pieces reveals again the general confusion over how fact-checking is done in the various media. The more you know about it the more you realize that caveat emptor is an especially sound rule for consumers of information . . . which means all of us.

Twenty-seven years in and around non-fiction book publishing have made me very aware of practices in that industry in particular. Here's what readers of books need to know.

To begin with, there is no such thing as fact-checking in trade book publishing. ("Trade publishing," by the way, means the opposite of what you probably think; it refers not to specialized publishing for a particular profession or industry but rather to general-interest commercial publishing, the category in which books like James Frey's would fall.)

Trade publishers rely on authors to get their facts straight. This applies to all kinds of trade books, from histories, biographies, and political exposes to cookbooks, travel guides, and, of course, memoirs. If an editor finds some of the contents of a book questionable, he or she may ask the author to double-check or provide documentation, but that is strictly based on the inclinations and interests of an individual editor, and it happens rarely.

This reality of book publishing surprises many people. We are raised to think of books as somehow authoritative. Books have a longer shelf life than newspapers or magazines and are far more prestigious; if you tell people that you have authored a book on a particular topic, they will probably assume you are an expert until you demonstrate otherwise. So without thinking about it, most people assume that books get some kind of careful vetting process before they are released. Not so.

The reasons for this are primarily ecoomic. Tens of thousands of new books are published every year. (No one knows the exact number, but last year over 86,000 ISBNs--International Standard Book Numbers--were issued in the US alone, which is a pretty good proxy for publications.) The large publishers (Random House, Simon & Schuster, Harper Collins, etc.) publish thousands of these titles, and a given imprint (i.e., brand name) with a handful of editors may publish several hundred books all by itself.

Any serious effort at fact-checking would take many, many hours per book--think about having to somehow track down and confirm the spelling of every name, the accuracy of every date, the currency of every statistic, the truthfulness of every anecdote. With most publishers so understaffed that many books are scarcely edited, it would be absurd to expect publishers to somehow find the time to make fact-checking part of their routine practice.

Furthermore, most editors of non-fiction books publish works on a wide range of topics. It wouldn't be odd for a single editor to publish, in a given year, biographies and memoirs by politicians and entertainers, books on American and world history, and books on other fields such as architecture, science, and popular culture. There's no way any one person could be sufficiently expert in all these areas to detect subtle or obscure factual mistakes or even out-and-out lies in all of these books.

In that case, you might ask, why not hire one or more experts to vet the manuscript and highlight possible factual errors? This process of so-called peer review is actually used in textbook publishing, as well as in the worlds of university press and scholarly publishing. There are a few trade houses that publish scholarly or semi-scholarly books (companies or imprints like W.W. Norton, Basic Books, and the Free Press) which also use peer review.

But most trade publishers don't engage in this practice. Why not? Three reasons, I think. It's partly to save money--one would have to pay the experts anywhere from a few hundred to a few thousand dollars to review the manuscript and write up their notes, and most books aren't felt to warrant such an expense. It's partly to keep relationships with authors trouble-free--it's easier and less painful to simply accept the author's ideas and words on faith rather than to challenge them. And it's partly to save time--peer review would probably add anywhere from six weeks to six months to the publishing process. Since most trade books already take a frustratingly slow five to nine months to get from manuscript to bound book, publishers are loath to protract the process still further.

Unimpressed by these reasons (excuses, you might call them), you might ask: Wouldn't the expense in money and time be offset by the avoidance of legal and PR problems caused by factual gaffes in books (as exemplifed by the Frey mini-scandal)? Maybe so. But risk avoidance is where the concept of the "legal read" steps in.

As an editor and publisher, I participated in many legal reads of books. These are quite a different matter from fact-checking. First of all, at most publishers only a fraction of the books get a legal read (again, there simply aren't the necessary staff resources to do more than this). I doubt that Frey's memoir got a legal read--it's not the sort of book that normally raises red flags in the eyes of a publisher. Legal reads are normally reserved for the Kitty Kelleys of the world--authors who take pot shots at people with the intention of creating a storm of negative publicity.

The legal read involves a careful review of the manuscript by a lawyer with training and experience in intellectual property law, especially the laws related to libel, invasion of privacy, trademark violation, and other possible legal problems. (For example, you don't want the recipes in a cookbook to include potentially lethal ingredients.) The purpose of the review is simply to make the book as proof against a lawsuit as possible.

This means that the questions raised by the lawyer are generally as follows:

1. Is there anything in the contents of the book that could get us (the author and the publisher) sued? In other words, does any part of the book libel someone; violate someone's privacy; violate a copyright, trademark, or other intellectual property right held by someone; or expose us to some other kind of legal hazard?

2. Who, specifically, is likely to sue us? What are the odds they'll actually do it? (Public figures like politicians and CEOs have to overcome relatively high legal hurdles before they can sue for libel, especially in the US; some people and companies are known to be more litigious than others; those with deep pockets are more likely to sue than those without, etc. etc.).

3. What can we do to reduce the risk of a suit, or, failing that, to improve our chances of winning in court? If libel is the chief concern, one way to improve the legal case is to bolster the evidence supporting the allegedly libelous statements, since you can't be sued if what you say is demonstrably true. So getting documentation or testimony from a second or third witness is important.

So is examining and fine-tuning the exact wording of written statements that put another party in a negative light. You can't be sued for statements of pure opinion. For example, writing that "Russell Crowe is a lousy actor" would be legally protected and practically lawsuit-proof. But if you write, "Russell Crowe is a drunk" or "Russell Crowe slept with the producer to get his last role," and can't prove your assertions, you could be sued for libel.

A writer also needs to be quite precise about making sure that the scope of his evidence matches the breadth of his assertion--especially where a possible lawsuit is at issue. If you have evidence (a bar tab, for example) that Russell Crowe had twelve shots of tequila on a particular night in Guadalajara, you would be well advised to write exactly that. This is not equivalent, either factually or legally, to writing "Russell Crowe is a drunk."

(Note to Russell Crowe's lawyers: The above examples are fictional and illustrative only. I'm sure Mr. Crowe is very good at holding his tequila and I thought he was excellent in A Beautiful Mind even if he did sleep with the producer.)

The lawyer who conducts a legal read highlights portions of the book that seem legally problematic and walks the author (and sometimes the editor) through the relevant rules and distinctions. Publishing lawyers differ in their attitudes and methods. Some get very nervous about any passage that could arouse the ire of a potential litigant and will try to convince authors and editors to drop or rewrite such passages. (If the nervous lawyers had their way, every book would be turned into pabulum.) Other lawyers are more aggressive about defending freedom of speech and will work carefully with authors to help them exert their rights as far as possible.

The legal read sometimes devolves into a long, tedious in-house debate over just how far the book ought to go. On the one hand, editors, authors, and publishers know that edgy and controversial assertions fuel controversy and book sales; other the other hand, they also know that lawsuits are expensive and can destroy reputations. Hence the debate. Close calls are ultimately refereed by someone with executive responsibilities--the publisher or even the company CEO.

But notice that all of this does not amount to fact-checking. It's an exercise in lawsuit-anticipation-and-avoidance, which may use fact-checking as one of its tools, but only one.

As you can see, the process whereby the accuracy of trade books is monitored is pretty sketchy. It's filled with holes, and publishers generally do a lot of hoping-for-the-best. And yet, every year, the number of books that end up involved in Frey-type factual controversies (or for that matter lawsuits) is very slim. How many can you recall from recent years? Probably not more than three or four (unless you're an intellectual property lawyer yourself). And remember, that's out of 80,000 new books published every year. So most publishers take the attitude, "Hey, we're doing all right this way. Why rock the boat?"

Which explains not only how A Million Little Pieces got published, but also how every year new books that recount alien abductions, psychic encounters with the dead, incredible methods for easily making millions in real estate risk-free, and the real story behind the Kennedy assassination are published--many of them by large, prestigious, mainstream publishers.

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