GREAT FALLS, Mont. — Regardless of whether claims are true that author Greg Mortenson fabricated portions of "Three Cups of Tea," neither he nor his publisher can be held liable because the First Amendment protects exaggerations or lies in memoirs, his publisher's attorney said Wednesday.
Penguin Group (USA) attorney Jonathan Herman and attorneys for Mortenson, co-author David Oliver Relin and Mortenson's charity, the Central Asia Institute, asked a federal judge to dismiss a lawsuit filed by four people who bought Mortenson's bestselling books.
The lawsuit was filed after "60 Minutes" and author Jon Krakauer published reports last year that Mortenson fabricated parts of "Three Cups of Tea" and "Stones Into Schools," which recount his efforts to build schools in Central Asia.
The suit claims Mortenson and the others committed fraud, deceit and were involved in a racketeering conspiracy in publishing lies.
Mortenson headed the conspiracy to set himself up as a false hero so that he could sell millions of books and raise tens of millions of dollars for his charity, the plaintiffs' attorney Zander Blewett said.
"Mortenson obviously is the main, main liar," he said. "He has just drafted himself a web of deception ... and used it to raise $62 million."
In arguing to reject the case, neither Herman nor Mortenson attorney John Kauffman addressed the specific fabrication claims.
Herman said the proper place for someone to object to the books is in the sphere of public debate, not in a courtroom to be prosecuted by self-appointed "truth police." "The First Amendment permits someone who writes an autobiography to exaggerate or even lie," Herman said.
U.S. District Judge Sam Haddon did not make an immediate ruling, saying he wanted to consider the arguments further.
"Three Cups of Tea," which has sold about 4 million copies since being published in 2006, was conceived as a way to raise money and tell the story of his institute, founded by Mortenson in 1996.
The book and tireless promotion of the charity by Mortenson, who appeared at more than 500 speaking engagements in four years, resulted in tens of millions of dollars in donations.
The book recounts how Mortenson lost his way after a failed mountaineering expedition and was nursed back to health in a Pakistani village. Based on the villagers' kindness and the poverty he saw, he resolved to build a school for them.
The lawsuit – filed by two California residents, a Montana man and an Illinois woman who bought the books – says that tale is among more than two dozen alleged fabrications and accusations of wrongdoing by Mortenson and the others.
The hearing comes less than two weeks after Mortenson and the Montana attorney general announced a $1 million agreement to settle claims that Mortenson mismanaged the institute and misspent its funds. The agreement removes Mortenson from any financial oversight and overhauls the charity's structure, but did not address the books' contents.
That's where the civil lawsuit comes in.
The plaintiffs are asking Haddon to certify their lawsuit as a class action that would make everybody who bought the books a plaintiff.
They want an accounting of all the money collected form book sales, have that money refunded to the people who bought the books and have additional damages put into a trust for a humanitarian organization selected by their attorneys and approved by the court.
A First Amendment expert called the lawsuit absurd, regardless of whether the books contain fabrications.
Mortenson did not defame or harm anyone in his books and, barring narrow exceptions like national secrets, he can write what he wants and does not have to justify it, said Wayne Giampietro, a Chicago attorney and general counsel of the First Amendment Lawyers Association.
"It is what it is: Here's a book. If you want to buy it, buy it. If you don't, don't," Giampietro said.
The defendants' lawyers said such a case, if it were allowed to proceed, would damage the publishing industry and dampen free speech because it would require prohibitively expensive fact-checking for every book published.
In the case of Mortenson's memoir, it would be virtually impossible to independently verify all of his experiences in Central Asia, especially with several people cited who are now dead, Relin attorney Sonia Montalbano said. His story hasn't injured anyone, so there is no need to, she said.
"No one can be damaged by someone telling his own life story," she said.
After the "60 Minutes" and Krakauer reports last year, Penguin promised an internal investigation into the allegation that portions of the books were fabricated. Blewett referenced that investigation Wednesday. Herman declined to provide any updates, either during or after the hearing.
"The publisher knows only what the author has told it. That's it," Herman said.
One of the lawyers in the case is Larry Drury, who also represented plaintiffs in a class-action lawsuit against James Frey, who admitted on the "Oprah Winfrey Show" that he lied in his memoir "A Million Little Pieces." That lawsuit ended in a settlement that offered refunds to buyers of the book.
Drury and Blewett say the Mortenson and Frey cases "are stunningly close," but Haddon said he would not consider that case in these proceedings because it was settled without addressing any of the issues before him now.
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By MATT VOLZ 04/18/12 05:43 PM ET