A Guide to Oral History and the Law (review)

The Oral History Review most often includes reviews of books that are built upon oral history; at other times, its contributors review books on how to “do” oral history—what one might term the methodology of history. This book, however, is about the substantive law underlying that methodology—the law governing oral history and, in many cases, history writing more generally. The Guide has about 110 pages of narrative on law and ethics—everything from institutional review boards, Freedom of Information Act requests for oral history recordings, defamation, and invasion of privacy to copyright and disclosure to interview subjects—and then an extensive set of forms to handle issues like assignment of copyright. It is, thus, not too different from the self-help manuals that have been the subject of study by cultural historians in recent years, like Micki McGree’s Self Help, Inc. (New York: Oxford University Press, 2005).

I want to start by treating the Guide to Oral History and the Law as an object of history, to ask what it says about our field that we need a book like this to keep us out of trouble. That we need to be cautious about defamation and invasion of privacy suggests that the work we are doing evokes strong, often negative, reactions. That someone might invoke copyright in their oral testimony suggests that our subjects think what they are saying is important enough to be worth some money.

Because people care about what we write (or they think there is some money in it) and may sue us, John Neuenschwander wrote a book to help us stay out of trouble. He tells us in the preface, that the “mission of this book is to help readers avoid legal controversy” (xvi). In fact, the law provides a lot of protections for historians. Defamation is a tort that protects only living people. That is, a dead person’s heirs cannot sue for defamation of their ancestor published after death (36). Moreover, truth is a defense to defamation and many, if not most, of the people historians write about are public figures. To prevail in a defamation action, public figures have to show that the historian acted with “actual malice” in telling a defamatory falsehood. The Supreme Court established that high standard in the 1960s to protect the New York Times from a suit by an Alabama official who claimed a National Association for the Advancement of Colored People advertisement in the paper had defamed him (38). Still, many readers of this journal need to be concerned about defamation suits, for even though suits are hard to win, the shadow of a threat of a lawsuit may chasten us as authors.

Historians have to be aware of claims of invasion of privacy—what Neuenschwander calls the “stealth torts”—that involve the disclosure of public facts. Many researchers are aware of these legal issues already. For instance, the University of North Carolina’s manuscripts library has a clear warning on its webpage about the problems with invasion of privacy. As with defamation, invasion of privacy claims are hard to win. Neuenschwander illustrates his narrative with compelling vignettes from a number of recent cases—most of which ultimately denied plaintiffs’ claims to invasion of privacy or defamation (e.g., 31, 33–35, 39–40). I suspect that some of his discussions of the nuances of the law (like discussions of the Restatement of Torts [35, 54]) may be a little difficult to follow. Overall, though, this is a fun as well as a sobering read.

Yet, even when our subjects are dead and thus have no claim of defamation, historians often run the risk of disclosing discomforting facts about ancestors. That can lead to interpersonal conflict, even if not a successful lawsuit. One of the most famous recent cases involved Martin Duberman’s publication of two letters discussing James Henry Hammond’s sexual behavior. That brought him into conflict with the South Carolina library, where...