I have the right to say it, but should I?
As an American writer, I am an unequivocal supporter of our First Amendment right to free speech and free expression.
I also believe that speech should be honest, but that’s not the rabbit trail I want to go down today.
What I want to discuss is the right to privacy of the person you want to write or talk about.
Just because you know something, and just because it’s true, should you share it with others?
As you have the right of free speech, others have the right to privacy. As authors and storytellers, how do we balance those rights?
If you’re writing nonfiction and you want to share an anecdote that could be potentially embarrassing, you can always change names and details and add a footnote that names have been changed to protect the privacy of those involved. But what if a reader who knows the people—but not the details you’re writing about—recognizes them?
If you’re writing fiction and want to create characters based on real people, or you want to write a novel based on a real incident, you can alter enough of the facts so that the people or situation can’t be identified. But what if you don’t change enough? What if your story reveals information that damages the real-life person?
Truth can protect you from a charge of slander or libel, but not from an accusation of invasion of privacy. There are a lot of truths we might know about people that we are legally blocked from revealing under privacy laws (such as HIPAA regulations; privilege under attorney/client, doctor/patient, and clergy relationships). Some of these laws that are so complicated the courts are still trying to figure them out.
Then there’s the public figure factor. People who put themselves in the public eye lose a lot of their privacy rights. Does that mean it’s okay to publish what you know?
Of course, you can always go to the person involved and get permission to use them in your work. If they say yes, be completely clear about what you intend to write and get a signed release before you publish. If they say no, you have some decisions to make. Do you exercise your First Amendment rights without any regard for the harm it might cause someone else?
Sometimes you just shouldn’t write the story you want to. You could. You may have every legal right to. But should you?
If you shouldn’t, don’t.