Earlier this month a New Jersey federal court judge dismissed a lawsuit filed against Penguin and author Michael Capuzzo that alleged his 2010 book THE MURDER ROOM was negligent in recounting an extramarital affair. Significantly, as we’ll detail below, the judge accepted standard publishing process for relying on the author’s work and warranties and not performing detailed “fact-checking.”
As we reported in March 2011, plaintiff Joan Crescenz sued for defamation claiming that a 30-year relationship with employer and forensic sculptor Frank Bender described in the book never happened. Crescenz also said the allegations violated her privacy and that she wasn’t enough of a public figure for her interpersonal relationships to warrant such scrutiny.
But Judge Noel Hillman ruled that even if Crescenz doesn’t qualify as a public figure, she “cannot meet her burden to demonstrate that defendants were negligent” since a number of “undisputed facts” about her relationship with Bender were already in the public record. Furthermore, both Bender and one of his daughters reviewed an advance copy of THE MURDER ROOM and neither requested changes to the description of his relationship to Crescenz. (Bender, before his death in July 2011, also testified in discovery hearings that his relationship with Crescenz was of a sexual nature; she continued to work as his business manager until he died.)
Hillman’s summary judgment in Penguin and Capuzzo’s favor is significant for setting down a clearer stance on what burden, if any, a publisher has to fact-checking a work of non-fiction. Hillman said Crescenz “has not produced any evidence, from an expert or otherwise, to demonstrate that a book publisher must independently check every fact.” Judge Hillman was persuaded by Penguin’s declarations that “the custom and practice in the publishing industry is for book publishers to rely on their authors to warrant and stand for the truth of the words they write, which warranty is memorialized in a signed agreement with the authors.” On that basis, the judge said there is “insufficient evidence that the fact-checking process at issue here was negligent.”
Penguin had also noted that “publishers do, however, have most of their non-fiction books vetted prior to publication by outside counsel experienced in publishing matters, and THE MURDER ROOM was so vetted prior to publication.” Hillman also praised Capuzzo for being “an experienced, Pulitzer-Prize nominated non-fiction writer who spent seven years observing, interviewing, and interacting with Bender, his close associates, his family, and Crescenz,” saying her objections in not being contacted for fact-checking purposes did not supersede Capuzzo’s own reporting and Penguin’s publication processes.
Summary judgment ruling