Garden Design

**Rich Pomerantz rich@richpomerantz.com>**

Larry Maupin wrote:
< Everyone had attorneys fees, and everyone lost in the end.
Though you may say, "it's only us with some comments on the internet" 
but the court did not see it that way. A precedent has now been set. We 
are liable for malicious comments that may or may not be founded in 
truth. A lawyer friend of mine says that the defense for either libel or 
slander is truth. If you speak the truth and can back it up, even in 
court, fire away.>

Not so Larry, not so at all.

I am a lawyer, and one of the most clear and memorable phrases law 
students remember is "In a liable suit, truth is an absolute defense". 
Period. Malice or absence of it doesn't enter into the situation except 
where you are talking about a public figure. And here you still have it 
backwards also because you can say UNtruthful things about a public 
figure, but still not be liable for libel so long as you have an absence 
of malice. That's the way it works in the USA. That's how the tabloids 
get away with their nonsense all the time. The few celebs who sue & 
occasionally win have to prove the tabloid used malice in printing the 
untruth about whatever scandalous material they printed. Most don't sue, 
because the tabs can usually show they had a source, or it wasn't malicious.

This discussion is incredible. If half of the myths perpetrated in this 
thread were true, free speech would have disappeared a long, long time ago.

I read the story about the Pets Warehouse case & (a) there is no 
precedent, it never went to trial, and (b)there were some lawyer fees 
involved but not much because many of the defendants settled before 
their fees went very high. (We're talking hundreds of dollars & a few 
thousand dollars, and a domain name given up) yes, not what any of us 
poor freelancers want to lay out, but certainly not any great win for 
the Plaintiff, who is still busy filing new suits & amended suits. 
Here's the key - He has no lawyer. He represents himself. We can wonder 
why this is. I'd suggest it's because no lawyer would take the case 
without a big retainer, & he wouldn't (or couldn't) pay it.

It's sui generis, a unique case filed by a very angry & litigious 
person. We are trying to discuss garden writing here, specifically 
whether any of us have experience with a certain publication to share 
with others. It's been done before, I am always reading about this 
writer or that's experience with different publications on this list. 
Usually there are good things said, but that doesn't mean this should be 
a "Garden writers who only have good things to say" list.  This should 
be one of the reasons for being on this list, so I agree with Tom Ogren 
when he wrote:  <I thought that this was a list server for garden 
writers. For professional garden writers. As such, whether or not a 
magazine actually pays one of us, or does not, for requested work, would 
certainly seem to me to be a topic worth discussing. >

Heck, look at EP (Editorial Photographers.com) - they have entire 
databases and charts set up for you to peruse with comments about many 
publications, and the list discussions there regularly include 
information about problems with individual publishers. In fact the 
entire organization, now one of the largest photographer trade groups in 
the country, was started three years ago by a group of photographers who 
banded together to discuss and then fight against the unfair and 
unethical trade practices of one publication: Business Week. Their 
actions resulted in major changes in the way BW treats and deals with 
photographers.

So please, lets encourage, not stifle, discussions that can only make us 
all stronger and better business people.

Rich Pomerantz

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