Catching Stories

A Practical Guide to Oral History

Donna M. DeBlasio, Charles F. Ganzert, David H. Mould, Stephen H. Paschen, Howard L. Sacks

• Publisher: Swallow Press
• Year: 2009
• eBook ISBN: 9780804040402
• Topic: Social Sciences
• Subtopic: Social Science Research & Methodology
• Index: Social Sciences

In neighborhoods, schools, community centers, and workplaces, people are using oral history to capture and collect the kinds of stories that the history books and the media tend to overlook: stories of personal struggle and hope, of war and peace, of family and friends, of beliefs, traditions, and values—the stories of our lives.

Catching Stories: A Practical Guide to Oral History is a clear and comprehensive introduction for those with little or no experience in planning or undertaking oral history projects. Opening with the key question, "Why do oral history?" the guide outlines the stages of a project from idea to final product—planning and research, the interviewing process, basic technical principles, and audio and video recording techniques. The guide covers interview transcribing, ethical and legal issues, archiving, funding sources, and sharing oral history with audiences.

Intended for teachers, students, librarians, local historians, and volunteers as well as individuals, Catching Stories is the place to start for anyone who wants to document the memories and collect the stories of community or family.

Chapter Four

Legal Issues

By David H. Mould

You’re interviewing the former mayor of your city about his career as a public servant. It’s a lively session. The mayor has a treasure trove of stories about past political battles and intrigues. You ask for his opinion of the current mayor who defeated him in the last election. He doesn’t hold back. “That morally delinquent deadbeat? He’s just a sneaky, groveling office-seeker, a con man who buys votes, sells influence, and swindles the taxpayers. He serves the Mafia, not the people.”

This is terrific stuff, but you’ll be wise not to use it in your public program or radio series on the city’s history. The ex-mayor may have legitimate concerns about the conduct of the last election—especially those unopened ballot boxes discovered six weeks later at the city dump—but he is making a libelous statement. Indeed, in three sentences, I’ve used nine red-flag words listed by libel expert Bruce Sanford. The list of words and expressions in Sanford’s Libel and Privacy is gleaned from actual cases.¹ None of these words used alone will trigger a libel suit; that depends on the context and the person named. But it pays to be careful.

What’s the problem? You didn’t use the red-flag words; the ex-mayor did. Surely, he’s responsible for what he says. In fact, you are both responsible, and so is your organization. The ex-mayor used the words, but you published them and brought the libelous statement to the public.

Oral historians are less likely than journalists, photographers, plastic surgeons, and used car dealers to be sued. But there have been court cases involving the content of oral history interviews and legal disputes over the ownership and use of interviews. At universities, institutional review boards (IRBs) have attempted to place restrictions on interviewing. Oral historians need to follow basic guidelines to stay out of trouble and to be aware of developing case law.

The purpose of this chapter is not to provide a comprehensive review of state and federal statutes and cases or to summarize all legal issues that an oral historian could face. For the past twenty-five years, these tasks have been diligently and masterfully performed by historian and judge John Neuenschwander in Oral History and the Law.² Nor is the purpose of this chapter to dispense legal advice. That’s what lawyers do. So if you have a specific problem or question, consult an attorney. However, this chapter will provide an overview of legal issues and guidelines to help you stay out of trouble. We’ll start with that bankrupt, blacklisted, corrupt, cowardly, hypocritical (five more words from Sanford’s list) thing called defamation.

DEFAMATION

The good news is that I can’t be sued for publishing that last sentence. In the United States, only an individual person or an organization can sue for libel. Words, ideologies, countries, professions, domestic pets, and inanimate objects can’t. As a native Briton, I’m sometimes offended by American stereotypes of what it means to be British—some combination of binge tea drinking, gardening, hunting foxes, doting on the royal family, and living in a stone cottage in a village called Middle-Wallup-under-the-Wolds. But I can’t sue a travel magazine for an article that idealizes rural Britain because there’s no way to prove that the bucolic portrayal has injured my personal reputation. Similarly, as a university professor, I don’t think I live in an ivory tower, but I can’t sue critics who believe academe is out of touch with the world.

However, a corporation, religious group, labor union, or nonprofit organization can sue for defamation if it can prove that damage was done to its collective reputation and not to its individual staff or representatives. In business, where the value of a brand and customer goodwill may be a company’s greatest assets, this provides protection against unfounded claims by competitors or disgruntled customers. In the nonprofit sector, where trust and transparency are key currencies, a faith-based or charitable organization may sue if it is accused of misuse of funds on the grounds that such accusations reduce public trust and contributions.

The issue of group and individual identification becomes difficult in smaller communities. There’s no problem with the statement “All politicians are crooks,” or even “All politicians in the state are crooks.” But if your interviewee states, “All members of the city council recycling committee are hypocrites because they throw aluminum cans in their trash,” and the committee has only six members, they are easily identifiable. It’s a matter of scale; a phrase that would cause offense (but not a lawsuit) in a large city may be considered defamatory in a smaller community. It’s also a matter of time. Most states require a plaintiff to sue within one year of the first publication of defamatory material. The purpose of the statute of limitations is to prevent people from dredging up old offenses to settle new scores and to prevent frivolous suits by cranks and professional litigants.

It’s often said that we should not speak ill of the dead. However, there’s no law against it. If the mayor of our fictitious city files a libel suit against you, your organization, and the ex-mayor but then dies from a blow to the head with a tape recorder, you may be questioned in the criminal matter, but the suit will die with the plaintiff. This limitation provides a measure of protection for oral history programs because, as Neuenschwander wryly notes, interviewees “are often recounting events involving participants who have long since gone off to their graves.”³

Defamation is a false statement that injures the reputation of another. Words that may injure a person’s reputation are classified into five categories:

1. committing a crime

2. acting immorally or unethically

3. associating with unsavory people or otherwise acting disgracefully or despicably

4. demonstrating financial irresponsibility or unreliability

5. demonstrating professional incompetency⁴

A written defamatory statement is called libel; a spoken defamatory statement is called slander. The courts have viewed slander as a less serious offense because the utterance is usually spontaneous. Libel is more serious because the act of writing is considered deliberate. This places the oral history interview in a somewhat ambiguous legal position. Defamatory words, at the time of utterance, are slander. But recording and publishing them—in a book, exhibition, or documentary—are clearly deliberate and not spontaneous actions, so defamation in interviews is generally considered libel.

A plaintiff needs to prove five elements to establish a claim for defamation:

1. The words used were defamatory.

2. The defamation was about the plaintiff.

3. The defamation was published to a third person.

4. The plaintiff’s reputation was damaged.

5. The defendant was somehow at fault.

An oral history organization cannot dodge responsibility by using phrases such as “it is alleged” or “so-and-so claims.” It has republished the defamation and is legally liable along with the interviewee.

Bruce Sanford’s Red-Flag Words and Phrases

addict

adulteration of products

adultery

AIDS

alcoholic

altered records

atheist

bad moral character

bankrupt

bigamist

blacklisted

blackmail

boozehound

bribery

brothel

buys votes

cheats

child abuse

collusion

con artist

confidence man

corruption

coward

crook

deadbeat

defaulter

divorced

double-crosser

drug abuser

drunkard

ex-convict

fawning sycophant

fraud

gambling den

gangster

gay

graft

groveling office-seeker

herpes

hit man

hypocrite

illegitimate

illicit relation

incompetent

infidelity

informer

insider trading

intemperate

intimate

intolerance

Jekyll-Hyde personality

kept woman

Ku Klux Klan

Mafia

mental illness

mobster

moral delinquency

mouthpiece

Nazi

paramour

Peeping Tom

perjurer

plagiarist

pockets public funds

profiteering

prostitute

rape

rapist

scam

scandalmonger

scoundrel

seducer

sharp dealing

shyster

slacker

smooth and tricky

smuggler

sneaky

sold influence

sold out

spy

stool pigeon

stuffed the ballot box

suicide

swindle

thief

unethical

unmarried mother

unprofessional

unsound mind

unworthy of credit

vice den

villain

__________________________

Source: Bruce Sanford, Libel and Privacy (New York: Aspen Law and Business, 1991), 4.13.

Most libel cases in the United States in the last fifty years have involved journalists or authors and their organizations—newspapers, broadcasting companies, and book publishers. There are so many similarities between how oral historians use interviews—in public programs, museum exhibits, articles, books, radio and television programs, and Web sites—and how journalists and authors use interviews, that it is clear that th...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Preface
• One Why Do Oral History?
• Two Planning an Oral History Project
• Three Ethics and Politics in Oral History Research
• Four Legal Issues
• Five Interviewing
• Six Transcribing Oral History
• Seven Catching Sound and Light
• Eight Audio and Video Recording
• Nine Archiving Oral History
• Ten Funding
• Eleven Sharing Oral History
• Contributors
• Index