Lance Armstrong's latest legal headache centers around two autobiographical books he published in the early 2000s, It's Not About the Bike and Every Second Counts, and the now-familiar lies he told in them. He misled readers by repeating lies about never doping or using blood transfusions in his cycling career. (The assertion was bogus, as he extensively detailed to Oprah in January.)
But can he be held legally responsible?
That's the claim being made by two readers of It's Not About the Bike, who filed suit against Armstrong and his publishers in January, labeling the book false advertising and asking for refunds and other compensation. Not everyone has agreed. Bloomberg Businessweek dubbed it "the dumbest lawsuit yet about Lance Armstrong," and the cyclist's own attorneys and publishers have vehemently claimed the books are protected by Armstrong's First Amendment rights.
Now that arguments have wrapped up, U.S. District Judge Morrison England is expected to reach a decision soon, USA Today reports. The thorny element is that Armstrong's lawyers are largely correct in their claim: it's not illegal to lie in an autobiography. As they've pointed out, "No American court has ever sustained a fraud action against a publisher for false or inaccurate statements within the pages of a book, and no plaintiff has successfully pleaded a fraud claim against an author based on ... the contents of an autobiography."
But the lawsuit isn't just about the contents of the memoirs, which clearly contain false claims. It's about false advertising allegedly used to market the books, which is not protected:
By marketing himself as a drug-free All-American hero, Roddy argued that Armstrong induced consumers into buying books they would not have purchased if they had known the truth about his cheating and doping. If they had known Armstrong's story was a "fairy tale," Roddy said, "nobody would have paid more than a penny" for the books.
"He engaged in commercial speech," Roddy said.
The plaintiffs have pointed to Armstrong's promotional appearances, including an interview with Charlie Rose, claiming he used his lies to sell books. One of them, Gloria Lauria, is a cancer survivor as well, who claims she wouldn't have purchased the books had she known Armstrong was guilty of doping. Seeking class-action status, the plaintiffs filed on behalf of other readers.
Such is the curious distinction between free literary expression and commercial speech in the legal sphere: only in the latter category can author be held legally responsible for falsehoods. (The notable exception is when the lies involve or damage other individuals, which could then be classified as libel.) Armstrong is certainly not the first author to make dishonest claims in a work of memoir, as Wikipedia is only too glad to detail. But he is one of the few to face legal action.
Probably the most memorable case involved James Frey, the writer who was famously pilloried in 2006 after The Smoking Gun exposed major fabrications in his memoir A Million Little Pieces. (Like Armstrong, Frey opted to make his big confession on Oprah—where he had earlier promoted the book.) Multiple class-action lawsuits were filed against Frey; they were subsequently consolidated, and in September, 2006, The New York Times reported that a settlement had been reached. Frey and Random House paid a little over $2 million, including "the cost of refunding customers, lawyers’ fees for both sides and a yet-to-be-specified donation to charity"; readers seeking a refund had to submit proof they purchased the book prior to January 27 and a sworn statement claiming they wouldn't have bought the book had they known it was partially fabricated. In other words, like Armstrong, Frey was only really legally responsible for benefiting from false advertising.
Five years later, in 2011, The Wall Street Journal reported that class-action lawsuits against writers had "multiplied." That was the year Simon & Schuster came under attack for publishing Jimmy Carter's memoir, Palestine: Peace, Not Apartheid, which was said to contain falsehoods and "outright lies." And Penguin faced multiple suits regarding Greg Mortenson and David Oliver Relin's Three Cups of Tea (both for including falsities and for alleged racketeering). Naturally, James Frey was credited with sparking the trend. But none of the lawsuits were successful.
To win, Armstrong's readers must do as Frey's did and prove that his books' lies were more than deceitful—they were central to the book's marketing appeal. Certainly they were central to Armstrong's athletic appeal.