Sentimental Fraudslsi 1224 83..114

Journal of Law & the American Social Inquiry Bar Foundation Law & Social Inquiry Volume 36, Issue 1, 83–113, Winter 2011 Sentimental Fraudslsi_1224 83..114 Simon Stern The 2006 class action against James Frey, concerning his fabrications in A Million Little Pieces, was the first suit of its kind in the United States. There is nothing new about false memoirs, so what can explain the lawsuit? When the book was promoted on “Oprah’s Book Club,” viewers were invited to respond emotionally, and saw their responses as a form of testimony. Those responses produced a sense of betrayal and inauthenticity when Frey’s false- hoods were revealed. This view finds support in the eighteenth-century sentimental novel, which similarly linked readers’ reactions to the author’s emotional authenticity. Fraud was an ongoing concern for sentimental novel- ists, some of whom used elaborate editorial to ploys to disavow responsibility for the text, while others populated their novels with fraudulent characters, intended as foils for the protagonist. An investigation of these novels helps to reveal the implications of the Frey case for future claims of literary fraud. INTRODUCTION In January 2006, when the Web site The Smoking Gun published an exposé of James Frey’s 2003 memoir of drug addiction, A Million Little Pieces (Bastone 2006), many readers were outraged by Frey’s deceit. Ultimately, ten class actions were filed in five jurisdictions in the United States, and in June 2006 the cases were consolidated for proceedings before the Judicial Panel on Multidistrict Litigation.1 The plaintiffs raised various claims including Simon Stern is Assistant Professor at the University of Toronto, where he teaches on the Faculty of Law and is cross-appointed to the Department of English. He can be reached at [email protected]. For comments on earlier drafts, thanks to Lisa Austin, Alyson Bardsley, Abraham Drassinower, Angela Fernandez, Louis Kaplan, Ariel Katz, Karen Knop, Ed Morgan, David J. Phillips, Andrea Slane, Irene Tucker, Mariana Valverde, the participants in the Identity Rights Colloquium (sponsored by the Centre for Innovation Law and Policy, University of Toronto Faculty of Law), and the anonymous reviewers for Law & Social Inquiry. 1. As the filing dates of these actions show, there was a rush to the courts during the first six weeks after the exposé was published online. In Re “A Million Little Pieces” Litigation (June 14, 2006) (consolidating Paglinawan v. Frey (filed January 19, 2006); Floyd v. Doubleday (filed © 2011 American Bar Foundation. 83 84 LAW & SOCIAL INQUIRY negligence, false advertising, and breach of contract, but at the heart of each suit was an allegation of fraud. The complaint in Giles v. Frey (2006), for example, asserted that Frey and his publishers, Random House, “fraudulently, with knowledge and intent, stated that [Frey’s book] was a non-fictional recount of experiences of James Frey” (10) even though the book “by the author’s own admission is replete with fictional and concocted stories” (2); thus, the class members were induced to buy the book because they “rel[ied] on the [defendants’] false misrepresentations” (8). Why did Frey’s deceit provoke this wave of litigation? In recent years, numerous chronicles of violence and abuse have been exposed as fabrications. Given the array of false memoirs about holocaust survivors, child prostitution, and gang violence, Frey’s book can hardly be considered a particularly egregious example. Why should his effort, alone out of this whole procession, be singled out for legal allegations of fraud? Frey’s book was not just the only false memoir to generate a federal lawsuit, but it was also the only one to be included in Oprah Winfrey’s book club (Hyman 2007, 235). The Smoking Gun article emphasized this point, calling Frey “The Man Who Conned Oprah” and noting that her show sponsors “the world’s most powerful book club” (Bastone 2006). However, the hostility directed at Frey was not simply a result of heavy media exposure. Such massive publicity doubtless increases the chances of reaching litigious buyers, but Winfrey’s show also gives participants (including audience members and, vicariously, viewers at home) the opportunity to make a public statement that serves as a form of testimony. Winfrey solicits responses from the audience members, and those responses become part of a dynamic process (Lofton 2008, 54–55). Reactions, and the reactions they provoke, are essen- tial to the production, which encourages participation by putting audience members in conversation with each other, the guests, and the host. The talk-show format, with its emphasis on the audience in what some have called an “emotional public sphere” (Lunt and Stenner 2005, 63), helps to give these contributions the status of testimony—an affirmation of the speaker’s sincere beliefs, which the speaker and hearers regard as being uttered on record and which therefore, even if it sounds spontaneous, will be understood by everyone to reflect the speaker’s awareness of the audience. In consequence, a statement that falls into the category of “natural” testimony may seem (in the speaker’s view) to acquire the status of “formal” (or legal) testimony. Natural testimony includes statements offered as evidence for a proposition, uttered by a speaker claiming to have proper author- ity for the statement, and directed at an audience believed to be in need of January 27, 2006); Snow v. Doubleday (filed January 27, 2006); Giles v. Frey (filed February 2, 2006); More v. Frey (filed February 2, 2006); Strack v. Frey (filed February 2, 2006); Vedral v. Frey (filed February 2, 2006); Marolda v. Frey (filed February 15, 2006); Hauenstein v. Frey (filed February 21, 2006); Rubenstein v. Frey (filed June 13, 2006)). Sentimental Frauds 85 such evidence (Coady 1992, 32–33; Graham 1997). Legal testimony includes the same conditions, and also imposes certain conditions that the speaker must satisfy, such as being sworn in, avoiding hearsay, and undergoing cross- examination. As the Oprah example suggests, even a nonverbal expression may count as an instance of natural testimony. In that case, the utterance amounts to an affirmation about the speaker’s character: by virtue of their shared reaction to the book, the participants show that they count as book club members because they have displayed the right emotional credentials. These responses do not qualify as legal testimony, but as Jan-Melissa Schramm (2009) notes, speakers who give natural testimony before an audience may imagine that their utterance qualifies as “a species of evidence” simply because the statement has been “articulated in a public forum with a view to establishing its ‘truth’” (478). Because the evidence is offered before viewers who are regarded as witnesses, the legal requirements are seen as unnecessary formalities: the speaker avoids hearsay by professing her own belief; her sincerity eliminates the need for an oath; and her openness to scrutiny does the work performed by cross-examination. The article in The Smoking Gun hints at the significance of the talk show’s interactive dynamic, noting that the Frey episode included “emotional filmed testimonials” in which “employees of Winfrey’s Harpo Productions lauded the book as revelatory, with some choking back tears,” before “the camera...returned to a damp-eyed Winfrey” to make her response rhyme visually with her associates’ testimonials (Bastone 2006). The technique recalls the filmic device of shot/reverse shot, which uses alternating close-ups to align the spectator with each character’s point of view, drawing in the viewer to facilitate emotional identification (Nabi and Hendriks 2003). As a result, those in the television audience are enlisted as participants. Susanna Annese (2004) confirms this view, observing that “ordinary people...on [television talk shows] serve as a kind of simulacrum for the audience on the other side of the screen and offer images of subjectivity for their viewers” (374), with the aim of securing the latter’s “involvement” (375). When audience members and viewers participate in the book club by devoting themselves to the recommended title, they may feel that they have, at least vicariously, given the same kind of sentimental testimony that they saw on television and that others have witnessed them doing it. This testimony—whether produced in the television studio or through the act of reading and responding to the new book—allows members of the book club to imagine themselves as part of a larger group in the same way that, in Benedict Anderson’s (1991) analysis, members of national groups belong to “imagined communities” (6). As Anderson explains, these communities are “imagined because the members of even the smallest nation will never know most of their fellow-members...[and] yet in the minds of each lives the image of their communion” (6). “Oprah’s Book Club” similarly constitutes itself as an imagined group whose members reveal their commonalities by 86 LAW & SOCIAL INQUIRY appreciating a shared set of books, according to a shared set of standards. The sharing, even for someone who meets no other book club members, makes the act of enjoying the book a communal act and hence allows the reader to understand it as a public act. To be revealed later as a dupe—as someone whose publicly vaunted sentiments were manipulatively prompted by the author’s lies—is more embarrassing than to learn the same thing about a sympathetic gesture performed in private. For the book club member who reads the title after hearing it lauded on Oprah, the experience offers the opportunity to bask in the afterglow of Winfrey’s emotion. Talk shows encourage viewers to “toy with the idea of being on a show themselves” and to “consider the shows as ersatz communities similar to other social circles” (Trepte 2005, 167).

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