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LIES, LIBELS, AND THE TRUTH OF FICTION / Naomi Jacobs ALL LITERATURE IS SCRAP art, manufactured out of old sights, -¿A. sounds, conversations, rumors, memories, visions, which are smelted down and recycled, or cut into patterns and stitched together, or simply relabeled like old bottles, retaining their original shapes but wearing new names and containing different potions. This insistent acquisitiveness of literature, this itch to capture, preserve, replicate, or transform the things of the world, is particularly characteristic of the novel, which from its inception has claimed truths more referential than those of most poetry and drama, establishing that referentiality by the baldfaced lie, "The story you are about to read is true. Only the names have been changed," or by the subtler persuasions of recognizable small truths, including recognizable people, that seem to corroborate the big lies. Even before Defoe and Richardson, the earliest "novels" drew upon truths of history as the threads for their fabrics of deception. As far back as 1593, in Thomas Nashe's Unfortunate Traveller, Jack Wilton follows Henry VIITs war to the continent, travels to Italy with Henry Howard, Earl of Surrey, meets Erasmus and "merry Sir Thomas More," and sees Luther debate Carolostadius ("Luther had the loudest voice, Carolostadius went beyond him in beating and bouncing with his fists"). From famous battles and battlers to scholarly entertainments given by the Duke of Saxony, these recognizable events and people give Jack's picaresque romance-memoir the air of truth, despite its exuberantly picturesque and literary language. Less than a century later, Aphra Behn had an enormous success with her Love-Letters from a Nobleman to his Sister, which presented in epistolary form an imagined account of the weU-known scandalous elopement of Lord Grey with his sister-in-law. Today the book would be called a nonfiction novel; then it was probably taken quite simply as truth. And this danger of being taken literally raised a central ethical question for writers: to what extent can a writer legitimately use another person for fictional ends, possibly exposing that person to unwanted attention, ridicule, or contempt? The ethical question raised a legal question as well: whether, and to what extent, a work of fiction can be termed libellous. Through the masking tactics of changed names and circumstances, most novelists have managed to evade both of these questions. But in recent years, the increasing importance of nonfiction elements in serious fiction has again brought them to the fore. According to one authority on civil law, William Prosser's Handbook of 164 · The Missouri Review the Law of Torts, "A great deal of the law of defamation makes no sense," and perhaps nowhere is this more true than in the law's application to fiction. For that law has accreted like a coral reef from the dessicated skeletons of thousands of legal cases, most of which concern nonfiction or journalism. Novels charged as libellous have generally been squeezed into a Procrustean bed of precedents based on genres with very different methods and effects, even though legal commentators and literary ones alike have tended to feel that fiction should be treated differently than accounts which present themselves as factual. The history of libel cases involving fiction, except for those cases where novelists have sued each other or, like Fenimore Cooper, have sued a critic, is generally a history of unknown works by unknown writers, perhaps because the talents of more skillful writers can turn even an unflattering portrayal into a sort of distinction, perhaps because better writers more completely integrate their original materials, perhaps simply because their fame makes them less vulnerable as targets. For whatever reasons, only a handful of cases exist that have dealt with the unique qualities of fictional truth as it might constitute the "falsity" demanded by most definitions of libel. But the threat of libel prosecution still produces a peculiar form of writer's cramp for those novelists who want to tell a certain kind of truth. Literary depictions of real people have always come under legal restraints, particularly when the writer has actually named names. The first Roman legal records, the Twelve Tables, invoked the death penalty for only two practices, one of which...

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