Should Lance pay for doping lies in his autobiographies?

Story originally appeared on USA Today.

Lance Armstrong once wrote a best-selling book entitled, 'It's Not About the Bike,' but now some readers say it was about the doping, and they want their money back

SACRAMENTO, Calif. -- Thirteen years before he finally confessed to doping, Lance Armstrong published a book that remains one of the most popular sports autobiographies ever written.

Entitled It's Not About the Bike, the book told the story of Lance's legend – how he overcame cancer to become a cycling Superman, always clean and never cheating with the use of performance-enhancing drugs.

It was based on lies – or at least big parts of it were.

Now a federal judge will decide just how much that matters. Should readers of his books get refunds after discovering they've been duped?

Or does the First Amendment protect Armstrong's right to lie in his memoirs?

U.S. District Judge Morrison England will consider the matter at a hearing here Thursday – part of a potential class-action fraud lawsuit against Armstrong and his book publishers. England could throw out the case, based on the cyclist's freedom-of-speech argument. Or the judge can let the case proceed, which Armstrong's lawyers say would be unprecedented. Such a decision might encourage similar claims and lead to a larger debate about the free-speech rights of those who sell falsehoods disguised as truth.

"Courts have unanimously held that publishers… owe no duty to publish accurate information or otherwise verify the truth of the statements of their authors," the attorneys said in court filings. "No American court has ever sustained a fraud action against a publisher for false or inaccurate statements within the pages of a book, and no plaintiff has successfully pleaded a fraud claim against an author based on ... the contents of an autobiography."

The readers who filed the suit say it's more complicated than that – the truth should mean something in the marketing of nonfiction books.

They originally filed their case in January, a week after Armstrong confessed to doping in a televised interview with Oprah Winfrey. Seeking refunds and other costs on behalf of California readers, they claim they were defrauded by false advertising and his lies about doping in five of his books, including It's Not About the Bike, published in 2000, and another autobiography, Every Second Counts, published in 2003.

One of the plaintiffs, Gloria Lauria, is a fellow cancer survivor.

"Lauria would not have purchased either book had she known Armstrong doped his way to 'victories,'" the suit states.

Staunch denials

Armstrong's books include lengthy false passages proclaiming he'd never doped.

"I would never take a substance like EPO or human growth hormone and jeopardize my health after what I'd been through (with cancer)," he wrote in Every Second Counts. He said his performances were the result of "hard work."

Earlier this year, Armstrong apologized to his books' co-author, Washington Post columnist Sally Jenkins, for misleading her.

The question is whether he owes something more to the books' readers.

The answer depends on more than whether Armstrong lied. Last year, the U.S. Supreme Court ruled that the First Amendment protected a person's right to tell lies, even striking down a law – the Stolen Valor Act – that had made it illegal for people to falsely claim military honors.

In another 2012 decision, a federal judge dismissed a fraud suit filed by readers who accused author Greg Mortenson of lying in his best-selling book Three Cups of Tea. Similar to the Armstrong saga, the readers claimed Mortenson fabricated parts of his books to build himself up as a false hero, making money for himself and his charity. But that suit relied on allegations of lies, not admitted lies, and also accused Mortenson of racketeering.

The judge ruled, "Plaintiffs are not entitled to rely on general allegations of purported lies within the books' content. At a minimum, plaintiffs must show that they relied on some particular statement by the defendants made outside the text of the books," such as during a marketing campaign.

Random House, a defendant in the suit as publisher of Every Second Counts, faced similar claims in 2006 involving a book called A Million Little Pieces. In that case, author James Frey admitted fabricating portions of the popular memoir. Readers filed suit, and nine months later the case settled – without a court ruling – when Frey and the publisher agreed to provide refunds to readers if they showed proof of purchase.

But the defendants admitted no wrongdoing, with Frey's attorney even telling the New York Times that "the desire to move on became a powerful incentive to resolve what are otherwise very weak cases."

Chilling effect?

A big issue in the Armstrong case is whether his books and books promotion can be considered commercial speech or false advertising, which enjoy less protection under the First Amendment. Armstrong's attorneys say the books are not commercial speech and have asked England to throw out the case, saying his lies about doping are protected speech. They say the readers failed to identify any false statements that induced them to buy the books and that they merely experienced anger and frustration because of Armstrong's lies, not economic damage.

"With the exception of denying (drug) use, the two books are wholly truthful accounts covering 30-plus years of Armstrong's life," the defense attorneys argue.

In response, the readers claim that Armstrong employed a sophisticated book marketing campaign that built up a false wholesome image for economic gain and book sales. Therefore, they argue he violated California law and engaged in commercial speech that is not protected.

"If I sell you a mango drink and claim that it's made of pure fruit, and then I find out it's not what you said it was, that's certainly punishable (by law)," said Eugene Volokh, a UCLA law professor and First Amendment expert.

Yet if inaccuracies in books are subject to legal liability, will a publisher ever dare publish again for fear of being sued by readers? Isn't it understood that many authors might be fibbing in their memoirs?

"No new allegation can change the fact that Every Second Counts truly is a `'biography,' whether Armstrong lied in it or not," Random House attorneys state.

Erwin Chemerinsky, a First Amendment expert at the University of California Irvine, said it is difficult to argue a book is commercial speech. If that were allowed, "then every book or magazine or film becomes commercial speech," he said, which could chill free expression.