When Is Fiction Just Fiction? Applying Heightened Threshold Tests to Defamation in Fiction

Whenever a work of fiction can be reasonably read as stating actual facts about a real person, courts allow juries to decide whether the work actually conveys a defamatory meaning. As a result, current defamation law essentially forces fiction authors to write about unidentifiable people or unbelievable events. This Note examines the jurisprudence surrounding defamation in fiction and, for comparison, defamation by implication. After surveying policy arguments, the Note concludes that current defamation law is inconsistent, inefficient, and burdensome as applied to fiction. Finally, the Note suggests that courts apply a heightened threshold test to defamation in fiction claims, similar to the tests courts sometimes apply to defamation by implication claims or use to assess falsity or actual malice. The adoption of an appropriate heightened threshold test would retain protection for reputations while allowing authors to avoid liability through the use of contextual devices, such as disclaimers, and without altering the content of their work