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  People often ask why I quit being a lawyer. If I think they really want to know, and if I think I want them to, I relate the specific incident that led to my retirement, having to do with the judicial system’s persecution unto death of one of my less resilient clients. But there were more general reasons for my withdrawal as well, some having to do with the law and some having to do with me.

  As introduced in law school and made familiar in my five years of practice, the law was a decidedly mixed blessing—stimulating intellectually but daunting psychologically; exciting philosophically yet intimidating pedagogically; august in the abstract and slimy in too many of its earthly manifestations. Intellectually capable of digesting and even profiting from my legal education, I nevertheless lacked the temperament—perhaps some would say the courage—to enjoy the incessant hostilities that are endemic to the profession, at least the only aspect of it I was drawn to, which was trial work.

  By the time I figured out that I was never going to adapt to its demands, and that my clients were going to suffer more than I was from my inadequacies, I was thirty-five years old and convinced I had wasted the prime of my life. Which was approximately where I’d been when Bryce Chatterton had ridden in to rescue me those many years ago. Now, for good reasons of his own, Bryce had shoved me back from whence I’d come. I hoped I survived the trip.

  While I looked in the stacks for the reference set I needed, I prayed for a piece of luck that would save me from slogging through the leaden prose of Am Jur and ALR, or even the more sprightly accounts in Witkin, looking for a line on the libel case I told Bryce I thought I’d remembered. Luckily, my prayer was sufficiently modest to be answered, in the form of an entry in the Index to Legal Periodicals that listed several articles on the subject of libel in fiction. After an hour with the Brooklyn, Santa Clara, and Utah law reviews, and a quick dip into the Supreme Court and California Reporters, I had enough of the nuts and bolts of this peculiar aberration in the law of defamation that I could call them in to Bryce.

  “Here’s the deal,” I said after he came on the line. “Unfortunately, I was right—there’s a recent California case in which the court of appeals held that a writer had defamed a person in a novel. It’s Bindrim versus Mitchell, 1978.”

  “What was the novel about?”

  “A nude encounter group, sort of like Esalen. The way it happened was, the author went to a retreat run by this Bindrim guy, hung around and took the therapy, then went home and wrote a novel about it. The kicker was Bindrim knew who she was beforehand, and the kind of books she wrote, so before he agreed to let her in she had to sign a contract promising she wouldn’t write about the program.”

  “Then it’s breach of contract, not libel.”

  “That’s what it was, but that’s not the way the court described it.”

  “So why didn’t the author just change the guy’s name?”

  “She did. She changed his name and the way he looked, changed the name of the therapy and the way it was conducted, and put in a bunch of imaginary characters as well. But the court still found she’d defamed the guy.”

  “Why?”

  “Because the description of the guru wasn’t close enough to the way he was in real life, which according to the court meant he was defamed.”

  Bryce bristled. “Of course it wasn’t close—it was a novel, for crying out loud. That’s what novels do, they rearrange reality. If they’re good ones, they do it in the service of a greater truth.”

  “The court of appeals didn’t see it that way. It also said labeling something fiction isn’t decisive, it’s just one of the factors to look at to see if the book is ‘of and concerning’ the person who claims he’s been defamed. And the only thing it takes to prove that the book is ‘of and concerning’ someone is for one person to show up in court and say they thought the person portrayed in the novel was the person who claims the libel.”

  “One person?”

  “That’s it.”

  For one of the few times since I’d known him, Bryce Chatterton sounded incensed. “Wait a minute. You mean if I write a novel about a black teenager who’s ruining his life as a coke runner, and Dan Quayle can find someone to come to court and say he really thought I was writing about Quayle, then Quayle can sue me for libel because he really isn’t a coke runner?”

  “A jury has to believe the witness, of course, but that’s what this court said.”

  “That’s asinine.”

  “Worse. Luckily, that particular aspect may not be good law anymore. In the case where Jerry Falwell sued Hustler for printing a cartoon in which Falwell implied that his first sexual experience was with his mother in an outhouse, the Supreme Court seemed to approve the lower court’s dismissal of the libel claim because the implication in the cartoon wasn’t reasonably believable. So your Quayle example may not hold up. But the Falwell language on libel was dicta—the only claim before the court was the tort of intentional infliction of emotional distress. Plus, Falwell is a public figure, which means the cartoon had political implications, so Falwell may not be determinative in a case like Hammurabi.”

  “What if the book is ‘of and concerning’ someone? Then what?”

  “The jury looks to see if the book harms that person’s reputation by making a false statement about him. If it does, the person can collect damages.”

  “Even if the writer didn’t intend to say anything bad about him?”

  “Apparently the author has to have been negligent, or to have acted in reckless disregard of the truth if the real person is a public figure like your friend Mr. Quayle.”

  “Isn’t that the definition of a novelist, Marsh? Someone who recklessly disregards the truth?”

  “Not according to the courts. This particular one, at least. Which makes it pretty much a catch-twenty-two, as far as I can see. If you’re true to life you should have been false, because you’ve written about a real person; but if you’re false you should have been more accurate, because the bad things you’ve said about the person weren’t true.”

  Bryce sighed. “Jesus. Why didn’t someone appeal this nonsense to the Supreme Court?”

  “They did, but the Court wouldn’t hear it.”

  “What about the First Amendment? Doesn’t that help us somehow?”

  “If it does, you can’t tell it from some of the decisions. Robert Bork—you remember him, Reagan wanted him on the Supreme Court—doesn’t think a novel is entitled to any First Amendment protection whatsoever.”

  “Reason number two hundred to be glad Ronnie didn’t get the job done.” Bryce paused and tried to calm himself. “We’re just talking about one case, right?”

  “I’m afraid not. Penthouse printed a story a few years back that portrayed a fictional Miss Wyoming engaged in a variety of unnatural acts, and the real Miss Wyoming sued for defamation. Guess how much the jury wanted to give her for the mental anguish she claimed she suffered?”

  “How much?”

  “Twenty-five million dollars. That’s how much juries care about the First Amendment.”

  Bryce sounded frantic. “That didn’t hold up, did it?”

  “It was reversed in the Second Circuit, but only by two to one. And I’ll bet it cost Penthouse at least a million in attorney’s fees to get out from under the judgment. There are some more clinkers out there like that one, too.”

  “Jesus. I don’t know if I could go through something like that. I know I couldn’t.”

  “You’re lucky it’s not the sixteenth century. Back then they punished libel by pillory and loss of your ears. But the picture’s not entirely bleak. In the Springer case in New York, the author used the same first name, the same physical description, and the same personal background of an old girlfriend—same college major, same street address, same taste in jewelry, same ex-boyfriend—then made her a prostitute and a courtesan in his book. Despite all that, the court said there was no libel because the defamatory statements weren’t believable. It called the parallels betwe
en the real Lisa and the Lisa in the book ‘superficial similarities,’ and said that because the current circumstances of the real and fictional women were different, no one could reasonably believe they were one and the same, even though their background was similar. It’s a particularly strong case for publishers because the libel claim was dismissed by the trial judge, which means the author and publisher saved the expense of a trial.”

  “Thank God there’s at least one court out there with some sense.”

  “Too bad for you it’s not in California—that case isn’t precedent out here, Bryce. In this state most of these cases go to the jury, and juries are notoriously unpredictable. I imagine most major publishers settle libel claims for nuisance value if they can. Which can still amount to a lot of money.”

  Bryce sighed. “What I can’t understand is why there’s all this hostility toward fiction. All it is is storytelling, for crying out loud.”

  I thought about it. “Partly because people think it’s a cheap shot, at least when they think the author is writing about a real person under the cover of a claim of art.”

  “But let’s say the book is a disguised exposure of some form of corruption,” Bryce countered, “which the best ones often are. The only reason the book is written in the first place is that the person being written about has such command of the popular media he can inundate the world with his version of the story while truth gets buried in the hype. A novelist is just fighting back the only way he can.”

  “I agree, Bryce. Calm down.”

  “People don’t want the truth,” Bryce repeated glumly. “What they want is an answer—one thought or deed or creed that will solve all their problems. And God knows there are plenty of charlatans out there who will serve an answer up to them. But no true artist would ever make that claim—that there’s a single path to glory, one golden idea that will yield eternal bliss—no one writing in this century, at least, because there are too many failures out there, too much wreckage from revelations gone wrong. The true artist knows the only thing that’s real is the never-ending struggle, the painful grasp for salvation that a writer like Flannery O’Connor or Graham Greene illuminates. If only—”

  I had to put a stop to it, if only to save wear and tear on my psyche. “Come on, Bryce,” I said. “We’re not going to restore the glories of literature over the telephone. I need to know what you want me to do.”

  Bryce paused for a leavening breath. “What you’re telling me,” he went on after taking enough of them to make his temper return to normal, “is that if Hammurabi is a true story, even a fictionalized story based on fact, then publishing it could ruin me.”

  “I’m just making sure you still want me to go ahead, knowing all the possibilities,” I said. “Maybe you should put an end to it right here.”

  “You mean not publish at all.”

  “It’s an option.”

  Bryce hesitated long enough for me to know what he was going to say. “There’s a principle at stake here. I can’t let some misguided judge dictate what I publish.”

  “I suppose not.”

  His rhetoric began feeding on itself once more, until his inflection became ecclesiastical. “Hammurabi could be an important book, Marsh—the barbarity of the prison system, the ramifications of false accusation, the difficulty of learning the truth when sexual abuse of a minor is at issue. Those are important subjects.”

  “True.”

  “Plus, it’s time to remind people that no matter how disturbing it is to see criminals get off on technicalities, it’s those very technicalities that distinguish us from dictatorships. Like China, for example.”

  “I agree.”

  “I mean, isn’t it amazing how closely the right wing wants America to look like Stalinist Russia and Communist China? Pretrial detention, prison for impure thoughts, state management of everything from sex to patriotism—the only thing different is that if they get their way we’ll have to join a church instead of a political party.”

  “In this country they’re becoming pretty much the same thing.”

  “All I can say is it’s going to be ironic as hell the day Czechoslovakia is freer than South Carolina.”

  “I think it’s already happened.”

  Exhausted by his geopolitical dissertation, Bryce groaned with gloom. “I want you to go ahead,” he murmured after a moment.

  “You’re sure?”

  “Positively. I’m going to publish Hammurabi as soon as I can.”

  “Good for you,” I said, and meant it. “But there’s one more thing I want you to think about.”

  “What’s that?”

  “Assume the book is true. Which makes our author a college grad, an English major, an aspiring novelist even before he got into trouble at the school.”

  “Okay.”

  “Now assume the guy I just described actually does write a novel. What does he do with it?”

  “He sends it to Alfred Knopf and hopes to hell they buy it.”

  “Okay. So what I want you to think about is, why did this particular novelist send his masterpiece to you?”

  In some ways it would have been easier to bear had I actually committed the offense with which I was charged. Had that been so, it would have been only me who was inhumane. Since I was not, the entire nation stood guilty of that failing.

  Homage to Hammurabi, p. 102

  8

  If you’re a single man with even a mediocre social life, sooner or later you’re going to date a schoolteacher. Mine was named Betty Fontaine, and I met her in the summer of 1982.

  Betty and I somehow emerged intact from a blind date arranged by a woman who was at once Betty’s friend and my temporary secretary and anyone-who-knew-her’s idea of a person who got her way through the exercise of monomania. Despite the chancy nature of our first encounter, Betty and I had gone on to enjoy a pleasant if not spectacular relationship over the next few years, its ambitions never broadcast much beyond the mechanics of the evening’s entertainment, its obligations exclusive on neither side, its existence a thing of value nonetheless.

  Then Betty met a marriageable man. Since neither of us had ever put me in that category, we parted ways, amicably enough, with best wishes all around. Though San Francisco is in most ways a small town, I never laid eyes on Betty again. Thinking back on it, I couldn’t even remember if she had married my more eligible counterpart or not. I decided I hoped not, but for present purposes it was enough that during the time we were dating, Betty had taught Western Civ to an astonishing percentage of the junior class at Jefferson High, a public school in the city’s Outer Richmond District.

  I called the number that still languished in my little black book along with dozens of its anachronistic mates, but it was out of service. There was no listing for a B. Fontaine in the phone book, and directory assistance said she was unknown to them as well. As a last resort I called the school. The woman in the office wouldn’t give me Betty’s number, but she did confirm that Betty was still on staff, not as a teacher but as an administrator with the dizzyingly amorphous title of Second Assistant Vice Principal. After lunching at Zorba’s and accomplishing some minor errands about town, I drove out to the avenues that lie like a sergeant major’s chevrons along the western half of the city, commemorating its advance on the sea.

  For some reason, San Francisco has organized its secondary school system so as to ensure its failure. All of the problems can’t be traced to the Board of Education, admittedly—a large portion of the city’s middle class is Catholic and its children attend parochial schools, an exodus that extracts from the public sector much of the support for excellent education. But the administrators are responsible for a more debilitating development—skimming the intellectual cream off the top of each of the public high schools and sending it en masse to a single institution, Lowell High, leaving the remaining schools to survive as best they can without the students who constitute the best role models for their peers and the most apt recipients of the teachers
’ labors. As Betty had often lamented, Jefferson High was one of the victims of the system.

  I parked by the door Betty had used back when we were dating and she was struggling to explain the Treaty of Ghent to kids who had never ventured east of Fillmore or south of Market and whose lives had concocted no desire to do so. I was out of the car and weaving my way through a pack of fractious kids—all of them Oriental, most of them speaking in their native tongues, two of them tossing a football back and forth in a leap of epic ethnic dimensions—when I saw Betty come out of the building.

  She was talking with a colleague while keeping one eye on the ball being tossed with sufficient volatility to merit monitoring. After the women parted company, I called Betty’s name and watched while a succession of expressions played tag amid the dark and gentle contours of her face. I chose to believe the expression that survived could be interpreted as pleasure.

  I smiled as she approached, a tall, handsome woman, strong and self-assured, cynical and smart, an informative companion, a stimulating foil. It occurred to me that maybe I should have married her.

  “Good afternoon, Second Assistant Vice Principal Fontaine.”

  Her smile was wide and unrestrained. “Marsh Tanner. Aren’t you a scratch on an itch, as my grandmother used to say.”

  “I take it you mean Ethel. The one in south Georgia who puts up a hundred quarts of peach preserves each fall.”

  “The very same.” She seemed happy that I had remembered a page of her history.

  “So how’s it going?”

  Betty crossed her arms and glanced at the bleak stretch of playground on which the kids were now trying to master the mechanics of the punt. “About average. Two steps forward, one point nine steps back. That’s on the good days.”

  “You survive the quake okay?”

  “The school has some kinks—I figure they’ll be repaired some time in the twenty-first century. But I got through it okay. I was on a bus, on my way home. After we figured out what happened, we all began to sing. ‘A Mighty Fortress Is Our God.’ I’m not a religious person, as you well know, but it seemed hugely appropriate at the time. How about you?”