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Maverick
Maverick, Attorney
Category: Personal Injury Law
Satisfied Customers: 5767
Experience:  20 years professional experience
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I am publishing a book on strict construction of the U. S.

Customer Question

I am publishing a book on strict construction of the U. S. Constitution. There are several places where, using actual quotes of some well-known personalities, I show where they are incorrect when it comes to the Constitution. Recently, I left the quotes in, but took out the names in an effort to deflect any personal liability as these folks have the financial means to easily take me to court...not to win, but to break me and get the book out of print. Someone suggested that was plagiarism, by using the quotes, but not attributing it to the named person. I do not know whether or not to use the names now or not. In court, there is no way any of these folks could win a case, but they could make my life very hard. I also do not know if an LLC would be any protection to me personally in this case.
Submitted: 11 months ago.
Category: Personal Injury Law
Expert:  Maverick replied 11 months ago.

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1. Are you leaving their names out because of being concerned about defamation suits?

2. Why do you believe they could not win in court?

Customer: replied 11 months ago.
1. yes, winnable or not, they could bring the case to suppress my distribution of the book and to punish me personally.
2. Because what they say can be proven to be incorrect. Not opinion, just fact. For example, if Mark Levin writes in his book that he is offering an amendment to restrict government spending and his amendment, if passed, spending will be "restricted to 18% of the GDP", that's not correct. There is no authority in the Constitution to link spending to anything other than the enumerated powers, i.e. the subjects they are authorized to address. There is no authority to link spending to revenue, inflation, population growth, or anything else. Accordingly, this is not a "restriction". It is an additional spending authority to spend up to 18% of the GDP that does not presently exist in the Constitution. His amendment would grant additional spending, not restrict it. That's not an opinion.
Expert:  Maverick replied 11 months ago.

ANSWERS:

I do not know whether or not to use the names now or not. In court, there is no way any of these folks could win a case, but they could make my life very hard.

1. Plagiarism would be if you used their quotes or ideas and then tried to pass them off in your book as your own. So, that does not appear to be an issue here since you are critiquing their quotes. Copyright laws, however, protect a writer's words as his legal property. So, normally to use their quotes you would not only have to identify the author but also get the author's permission to use it unless there exists a legal exception such as "fair use". Quoting another's work for purposes of review or criticism typically qualifies as a fair use exception to copyright infringement.

I also do not know if an LLC would be any protection to me personally in this case.

2. The other concern we discussed is a defamation suit. If you say something about a person that is NOT TRUE and is likely to harm their reputation, then you could be held liable for defamation.

In Texas the elements of a defamation claim are

(1) The defendant published a statement;
(2) The statement was defamatory concerning the plaintiff;
(3) The defendant acted with
(i) actual malice, if the plaintiff was
a public official or public figure, or
(ii) negligence, if the plaintiff was a
private individual, regarding the truth
of the statement

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998).

“Defamation” takes two forms: libel and slander. Slander is a false oral statement that is published to a third person without a legal excuse, which refers to an ascertainable person. Randall's Food Markets. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995). Libel is written or printed defamation.Rogers v. Dallas Morning News, 889 S.W.2d 467, 472 (Tex.App.-Dallas 1994, writ denied).

NOTE: Because a statement must be false to be defamatory, an opinion itself cannot form the basis of a defamation claim because it cannot be proven true or false.

An LLC will not shield you from being personally liable for a tort such as defamation.

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