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The Insanity Offence
The Fleisher/Ellison/Comics Journal Libel Case
Charles Platt

The case sounded ridiculous. Harlan Ellison, interviewed by Gary Groth for The Comics Journal in 1979, had made a few offhand comments about the work of Michael Fleisher, author of the notoriously violent DC Comics Spectre series. Ellison said the series was "bugfuck"; you had to be crazy like Robert E. Howard or H.P. Lovecraft to write like that. Fleisher said he was "devastated and appalled" by Ellison's remarks, and decided to sue for libel.

Late in 1986, the case reached Southern District Federal Court in Manhattan. Judge Vincent Broderick's court room was smaller and more intimate than I'd expected: I wandered in on 11 November and had to pick my way between lawyers and defendants sitting on ancient green-vinyl-upholstered chairs, ranged around three big wooden tables. As I sat down in one of four plywood pews reserved for (nonexistent) visitors, the prosecuting counsel had just started his opening statement.

Attorneys can say what they like in opening and closing statements, which are exempt from the strict procedural rules observed while interrogating witnesses. Fleisher's attorney told the jury of 5 women and 4 men that Ellison was "a controversial person. Controversial people stir up trouble, they attract attention... Not only does he not deny this, he markets it." As for The Comics Journal, it was an "elitist, muckraking" magazine: "every time you open it you can find some kind of hate, some kind of argument." Their transcript of Ellison's 5-hour interview was "nasty, hostile and attacking." Ellison attacked John Wayne, and he attacked John Updike, but he attacked Michael Fleisher worst of all. The libel supposedly consisted of three separate statements:

First, Ellison variously described Fleisher as crazy; certifiable; twisted; derange-o; bugfuck; and a lunatic.

Second, Ellison (mis)quoted a Publishers Weekly review as having said Chasing Hairy, a novel by Fleisher, was "the product of a sick mind". The review had said no such thing.

Third, Ellison said Fleisher's Spectre series had been discontinued by DC because "they realized they had turned loose a lunatic on the world." In other words, DC killed Fleisher's series because they thought he was mentally unbalanced.

As a result of these statements, Fleisher's "business reputation has been destroyed." The attorney summed up: "Freedom of speech doesn't go this far. There is no protection for lies that are knowingly published." As compensation, he was asking for total damages of $2,000,000 from Ellison, Groth and The Comics Journal.

After lunch, Groth's attorney took his turn. He claimed that Fleisher's gross income had actually doubled in the years following the supposed destruction of his career; that Fleisher had described himself as "a lunatic" in an interview; and that Fleisher's work was indeed deranged. For instance, in his comic- book story "The Night of the Chicken", a farmer picked up a prostitute, forced her to dress in a chicken costume, hacked her to pieces with an axe, then fed her to his chickens. And Fleisher had stated that out of all his stories, this was one of the three he was most proud of.

As for Chasing Hairy, it portrayed foul-minded men acting out their hatred for women. (In a deposition under oath, Fleisher had explained that "hairy" refers to "pussy".) At the climax, after getting a female hitch-hiker to participate in "unnatural sex acts", they poured gasoline over her in the back seat of a car, set light to it, and watched the explosion scatter her parts across the landscape.

But Ellison hadn't been condemning Fleisher when he called such stuff "bugfuck". On the contrary, he was praising it. "Bugfuck", the defence claimed, was a word Ellison used to describe people he admired. he even used it on himself. At other times (the attorney said) Ellison had happily described himself as "crazy as a bedbug".

So Ellison had described himself as crazy; and Fleisher had described himself as crazy; but the trouble started when Ellison said Fleisher was crazy.

In case the jury might think there wasn't really much to choose between the behaviour of these two mature adults, Ellison's attorney tried to elevate the proceedings to a higher plane. He reminded the jury of the vital importance of writers who take a radical stance. The work of Thoreau was a powerful influence on Gandhi, who liberated a whole continent from colonial oppression. Gandhi in turn inspired Martin Luther King, whose marches through the South ushered in liberation for American blacks. And guess who participated in those courageous marches? Why, none other than Harlan J. Ellison! (It so happened that of nine jurors listening to this homily, three were black.) Ellison, like Thoreau, was a brilliant writer, who had won every imaginable award for excellence in his field. Yes, he was outspoken sometimes – even using hard-hitting language like "bugfuck" – but that's the way great radicals are. He certainly shouldn't be confused with mere comic-book writers.

The implication was that from his lofty literary plane, Ellison knew little of comicdom; consequently he couldn't have known that what he said about Fleisher wasn't true; and without deliberate untruth, or reckless disregard for truth, there could be no libel.

Fleisher's lawyer didn't buy this. He didn't think Ellison was as naive about comics as he made out: next day he had him on the witness stand, admitting that he had received as much as $3000 for being a celebrity at comics cons, had written comics scripts for both Marvel and DC, and had often allowed his stories to be adapted for comics. At this point the attorney pulled out a stack of lurid magazines whose paper had turned yellow during the years taken for the legal machinery to bring this case to trial. Wasn't it true that Ellison once planned to adapt a story he co-wrote titled "Would You Do It For A Penny?"

Imagine the confusion of a juror at this point. There you are, a retired subway token-booth clerk, perhaps, or an insurance salesman. You walk into the court to discover one writer suing another for stating he's insane. The term "writer" makes you think of poets or best-selling novelists. But no: it turns out that Fleisher used to write comic books describing motorcycle gangs, zombies and psychopaths chopping women to pieces with axes and power saws. He's the one sitting meekly at the table nearest the judge – a shy, stooping man with glasses and thick bushy hair, like the protagonist in the movie Eraserhead. The other writer, Ellison, is wearing a dark blue blazer with gold buttons, like an elderly diplomat, or something out of Lifestyles Of The Rich And Famous. His grey hair is immaculately coiffed, and he has an air of grim detachment, as if he can't believe he's being forced to associate himself with such lowlifes. Ellison's attorney lists Ellison's literary awards, claims he even helped to liberate the American Negro, for heaven's sake. But now Ellison's on the witness stand, and Fleisher's attorney is showing him back issues of Heavy Metal and a comic called Creepy: "Is this your story, here? Did you write this?" And Ellison is reluctantly agreeing that he did. So you, the juror, begin to wonder: How can it be that this latter-day Thoreau sold his stuff to the same kind of sleazoid publications that printed Fleisher's sicko stories about people getting hacked into a bloody pulp? Harlan Ellison – and most SF readers – wouldn't agree, but to the outsider, comics, horror and SF can seem much the same, all using lurid images to give kids cheap thrills. Is Ellison's award-winning "I Have No Mouth And I Must Scream?" really that much better than "Night of the Chicken?" Maybe it's better written, and maybe it has an implicit social message, but to the outsider it looks as if we're making microscopic distinctions between two grades of trash.

This case initially promised to be a serious test of a respected writer's legal right to express trenchant literary criticism. As I sat there, however, listening to the list of absurd story titles and the asinine, inaccurate epithets that had been exchanged, the veneer of respectability began to seem totally bogus. SF people have a notorious tendency to take themselves too seriously, and here they were all dressed up in business suits, paying attorneys thousands of dollars a day to make them sound impressive, while the case really seemed little more than a namecalling competition.

I'm not questioning anyone's sincerity. During the trial I began to realize that Fleisher had been genuinely distressed by the "crazy" epithet. At first he recoiled in seeming horror when I introduced myself and said I might write something about the case. But as the days wore on, the artificial environment of fluorescent ceiling panels, acoustic tiles, scuffed plywood panelling and wrinkled brown carpet seemed to close in: like hostages who learn to love their captors, everyone developed a guarded camaraderie. I filched a copy of Fleisher's novel from one of the defence attorneys and found, contrary to the way it had been described, it was a carefully considered, perceptive book about the inhumanity of common men – the kind of novel, in fact, that Ellison claims to write himself, yet never seems to publish. Publishers Weekly did not, as Ellison stated, call it "the product of a sick mind... so twisted and nauseating, it has absolutely no redeeming social value." They said simply that it was "a very ugly book" about "hideous sexism". I found it no more ugly or hideous than the realities it rather objectively described.

So Fleisher wasn't a mere comics hack, and did feel genuinely wronged, and had genuinely suffered, despite the efforts of the defence attorneys to portray him as a venal, perverted opportunist.

However, proof of libel doesn't depend on the personalities involved, or even on emotional distress. Four circumstances must exist. A defamatory statement must have been made (one likely to subject a person to ridicule and abuse from friends or co- workers); the maker of the statement must have known it was false or must have acted with reckless disregard for the truth (that is, with awareness of probability of falsity); and actual injury must have occurred to the reputation of the victim (not just his feelings). Only after libel has been established can damages be assessed: these can then reflect any distress that may have occurred.

In this case, libel was never established. On the afternoon of 9 December, after four weeks of tiresome quibbles between lawyers, scurrilous attacks on the integrity of witnesses, half- truths delivered under oath, mountains of xeroxed documents showered on the jury, and a final summation by the judge that filled most of one morning and referred repeatedly to "Harvey" Ellison... the jury took less than 90 minutes to acquit Ellison, Groth and The Comics Journal on all counts.

In a sense, it was the right decision. The case seemed personally important to Fleisher, but to everyone else it seemed silly. Henry Holmes, Ellison's second attorney, who flew in from LA for some of the proceedings, said that on the West Coast no judge would have accepted the case for trial in the first place. But consider the four circumstances for establishing libel. In my opinion (opinions based on public facts are generally exempt from libel), Ellison's statement was defamatory; it was false; and it was made with reckless disregard for the truth. He himself almost admitted as much in the interview: after describing Fleisher as "certifiable", he added, "that's a libellous thing to say." Under cross-examination he claimed the remark to have been a joke: but Fleisher's lawyer suggested that Ellison realized (at that moment in the interview) he had "gone too far", which sounded about right to me. Moreover, after the interview was published and protests were received, Ellison referred to his own "unnecessary vitriol" in a letter to Groth. and added "I am unsettled. I am remorseful. I must watch my mouth."

The fourth requirement for proving libel – injury to Fleisher's reputation – was harder to demonstrate. As Ellison's attorney put it, "If someone is injured in his professional reputation, it will show up on their income-tax return." Fleisher's returns showed an increase in gross writing income from about $27,000 in 1979 to $50,000 in 1983. In at least one instance he seemed to benefit from notoriety: after Ellison's interview compared his craziness to that of Robert E. Howard, Fleisher was commissioned to script a Conan comic....

But, as Fleisher put it: "I found myself having difficulties with my work that I had not experienced before... I was unable to produced the plots that I was required to do... It's intrusive to go through life dealing with people... who've been given the impression you're some sort of lunatic." There was indeed evidence that professional colleagues no longer viewed him the same way, especially after The Comics Journal started publicizing and ridiculing his lawsuit. "Month after month they used his name to promote their magazine and to mock him." At one point they even mailed invitations that said, "One of the reasons we're giving this party is because we're making Michael Fleisher so unhappy." Nor were they entirely fair when they gleefully described Chasing Hairy as "the most repulsive piece of fiction ever written in English." One could only admire their prescience, though, when in an ad for a back issue that said, "Bet you this turns up in some legal paper." The ad itself was offered as an exhibit by the prosecution.

Personally, I don't believe in libel laws, because the only kind of printed statement that really hurts is the kind that exposes truth ***, and in the USA, truth cannot be libellous. People sue when someone offends their dignity, or when they take a statement more seriously than it was intended. If Fleisher had been able to laugh at Ellison's accusations, everyone would soon have forgotten them. By choosing to sue, Fleisher attracted the notoriety he said he sought to avoid.

So I feel Fleisher was wrong to bring the suit (and I ventured to tell him this in person); but having brought it, it seemed to me that he should have won it.

In a way, justice was still done: Fleisher refused to say how much the case had cost him, but I suspect much of his legal costs to have been on a contingency basis – his attorney wouldn't receive the full fee unless he won damages. By contrast, Ellison, Groth and The Comics Journal had to pay their four attorneys at least $150 an hour, win or lose. Insurance may have covered some of the magazine's expenses, but Ellison was telling people that the case had cost him $85,000. Perhaps this will be an incentive for him to speak a little more circumspectly in his next interview – or, at least, check some of the facts before publication.

*** Editorial disagreement registered at this point.

Though I cut Charles' report with the usual tasteless savagery, it appears at length because I'm fascinated and terrified by the thought of frames of reference switching suddenly from fannish give-and-take to courtroom analysis. "The accused, Langford, a being erect upon two legs, and bearing all the outward semblance of a man, and not of a monster, took it upon himself to state in print – heedless of damage to my clients' reputation and finances – that the announced organizational plans for their science fiction convention were... 'daft'. This cold-blooded accusation of mental imbalance..." etc. I have some sympathy for H.E. – Dave Langford