Letters and the Law

American law, a process of trial and judgment, is also a process of trial and error; and, with all due respect, the legal minds of the nation don’t always get it right on the first try.

A case in point is the status of personal letters under the law. Among writers, at least, the art of the letter lives on, and recent litigation over the letters of three writers shows the law groping its way toward a resolution of genuinely conflicting rights. The three writers are J. D. Salinger, the late L. Ron Hubbard and the late Richard Wright. In all three cases, the conflict has pitted the First Amendment rights of a biographer against the property and privacy rights of a biographical subject. As an inveterate sender and receiver of letters, I have been by turns instructed and alarmed.

By scouring libraries that had received gifts of personal papers from friends of J. D. Salinger, biographer Ian Hamilton had been able to piece together an account of the early life of the notoriously reclusive author of “The Catcher in the Rye” and “Franny and Zooey.” When Salinger learned of the book, scheduled for release in 1987, he sued to stop publication. Hamilton’s publisher, Random House, then recalled the proofs; but by then many reviewers had read them. Though I myself saw little in Salinger’s letters worth either revealing or concealing, the choice, I thought, ought to be his to make. First of all, many readers were curious enough about him to want to read his letters. If Hamilton published them before their author could, wasn’t that money out of Salinger’s pocket? Second, a personal letter, even one that has found its way into a public library, is an act of private communication. To say that a biographer has a presumptive, First Amendment right to a writer’s letters is no different from saying that he has the presumptive right to bug the writer’s telephone.

Salinger won his suit. Hamilton was required to replace quotation from the letters with paraphrase. His paraphrase, however, followed the text of the letters so closely that Salinger sued again. By this time, the Assn. of American Publishers and a long--to my eyes, depressingly long--list of writers had joined Hamilton and Random House as amici curiae , all claiming that Salinger’s suit, if successful, would have a “chilling effect” on any writing that entailed the publication of previously unpublished materials.

Salinger won again, and the U.S. Supreme Court declined to review the decision. In the end, Random House published a collapsed balloon of a book in which Hamilton tried to make his duel with Salinger, rather than Salinger’s life, the main literary event.

I found myself out of step with the literary Establishment on this occasion because I feared the chilling effect of search-and-expose literary biography on writers’ correspondence much more than I feared the chilling effect of the protection of correspondence on literary biography. If Hamilton had won, then any writer--indeed, any moderately public figure--writing a letter to a friend would be forced to observe the same self-censorship on the page as on a tapped telephone. And since I believe that some of our best writers have proceeded by verbal prodigality, that they have required the “space” of reckless, uncensored correspondence as surely as a dancer requires a studio, I thought a decision for Hamilton to be inimical to the health of literature itself. To say this, of course, is to admit that, on extra-legal grounds, my sympathies were entirely with the plaintiff and against the defendant; that is, with Salinger and against Hamilton.

Three years later, in 1990, when the L. Ron Hubbard case was decided, my sympathies, to my own private embarrassment, did an about-face. I was with the defendant this time and against the plaintiff. New Era Publications, a publisher linked to the Church of Scientology, had sued Henry Holt & Co. to establish its ownership of letters sent by Hubbard to the U.S. government and thereby to block U.S. publication of Russell Miller’s biography “Bare-Faced Messiah.” The letters, which Miller had obtained through a Freedom of Information request, were evidence for his claim that Hubbard had fabricated his war record. Since I believed that Hubbard had fabricated that and a good deal more, my sympathies were entirely with Miller and with Holt.

New Era Publications failed, on a technicality, to block publication of “Bare-Faced Messiah.” On the merits of the case, however, the court decided in favor of New Era Publications as the holder of copyright to Hubbard’s work. As in the Salinger case, the biographer had secured the letters from a third party, in this case the U.S. government. As regarded property rights, there seemed to no legal distinction to be made between the two copyright-holders. And as in the Salinger case, the U.S. Supreme Court declined to review the decision.

Unfortunately, in the Hubbard case, the ominous implications that attorney Floyd Abrams, who represented the publishers in both cases, had warned about seemed only too evident. A large public had been well-served by the publication of Miller’s book. Would it be so well-served in a future case?

There were, however, a number of material differences between the two cases that, had the court chosen to address them, might have permitted it consistently to rule against Random House and Ian Hamilton but for Henry Holt & Co. and Russell Miller.

J. D. Salinger is alive, to begin with, and L. Ron Hubbard dead. There may be no difference in the property rights of the two copyright-holders, but there is a clear difference in the need of the two authors for protection of privacy. At the very least, the court would seem to be at liberty to determine that the privacy rights of a living subject exceed those of a dead one.

Second, there is the fact that Salinger may someday write an autobiography of his own that would be in competition with Hamilton’s biography. By contrast, it is inconceivable that New Era Publications, linked as it is to the Church of Scientology, would ever compete with Russell Miller in publishing an expose of Scientology’s inventor. To the extent that the court may determine that there is such a right as the public’s “right to know,” that right would be violated by finding for a plaintiff who wished to block publication permanently.

Third, if copyright law permits the “fair use” of a limited amount of published material, copyright protection notwithstanding, the court would seem to be free to permit “fair use” of unpublished material as well. Hamilton’s book, absent his heavy quotation from Salinger’s letters, was largely devoid of interest. The same was not true of Miller’s book, in which Hubbard’s letters figured to only a limited extent.

Considerations like these seemed to be working their way forward last month when the U.S. Court of Appeals for the Second District, the same New York court that decided the Salinger and Hubbard cases, ruled on a case involving the late novelist Richard Wright. Wright’s widow, Ellen Wright, had sued Margaret Walker, author of the biography “Richard Wright: Daemonic Genius,” and Walker’s publisher, Warner Books, over Walker’s use of unpublished writing by Wright. While reasserting the principle that unpublished work belongs to its author or to whoever holds the copyright, the court nonetheless ruled that quoting from such work did not constitute copyright infringement per se. In justifying its decision, the court said:

“We are convinced that the defendant’s use of Wright’s works is fair. Dr. Walker’s biography of Richard Wright is a scholarly work, one that surely will contribute to the public’s understanding of this important 20th-Century novelist.

“The book does not exploit the literary value of Wright’s letters or journals. Nor does it diminish the marketability of Wright’s letters and journals for future publication. While the biography draws on works that we have characterized as unpublished for the purposes of this appeal, it takes only seven protected segments from Wright’s letters and journals.”

The court’s decision has been received by the publishing community as a step in the right direction but far too small a step. Larger hopes are entertained for a bill, now passed by the Senate, that would explicitly permit the kind of use that the court forbade in the Salinger and Hubbard cases.

My own hope is that the judiciary and the legislature will converge at a point that neither has yet quite reached. The court’s characterization of Walker’s book would apply almost equally well to Miller on Hubbard; it would not apply to Hamilton on Salinger. As regards the protection of intellectual property, in short, the court’s most recent decision affords the serious biographer a “fair use” privilege without denying the legitimate rights of the subject.

Unfortunately, neither that decision nor the Senate bill seriously addresses the privacy question. What makes personal letters of such compelling interest is precisely that they are not written with a view to publication but rather in just the opposite expectation. If a change in the law disregards and thus changes that expectation, then in the long run biographers and their subjects may have many fewer letters to quarrel over.