Justice Comes in Quotes

By Paul Gray

Many journalists hoped the case would simply go away; the prospect of juries setting limits on the work practices of reporters was a newsroom nightmare. But last week the Supreme Court decided otherwise. It unanimously overturned the decision of a federal court and ruled that the discomforting case of journalist Janet Malcolm, accused of libeling her subject by fabricating his quotes, should go to trial. Nevertheless, the reaction from most reporters, though hardly unanimous, tended toward a collective sigh of relief that the decision showed a subtle sensitivity to their craft.

The lack of outrage among those likely to be most affected stems in part from the tangled nature of the incident that prompted the trouble. In December 1983 the New Yorker ran a two-part profile by Malcolm of Jeffrey Moussaieff Masson, a psychoanalyst who had lost his job as projects director of the Sigmund Freud Archives in New York City. Published the next year by Knopf as In the Freud Archives, Malcolm's report apparently allowed Masson to destroy himself with his own words: his self-description as "an intellectual gigolo," his plan to transform Anna Freud's house, after her death, into "a place of sex, women, fun," and his boast that he would be recognized as "after Freud, the greatest analyst who's ever lived."

Masson sued for libel, claiming that he had never said any of these things and that other quotations had been distorted to make him look ridiculous. A long legal wrangle ensued, during which Malcolm, in a pretrial deposition, conceded that she had combined a number of Masson's comments over a period of months to suggest that they had all occurred during a single lunch at a restaurant in Berkeley. Her 40 or so hours of tapes and her notes of interviews with Masson do not contain the three quotations he claimed were fabricated. Still, her legal defense maintained that even if these statements were manufactured -- which Malcolm has steadily denied -- they were true to the nature of her subject and thus entitled to First Amendment protection. In 1989 a federal appeals court in California agreed.

Not everyone in the press, including Malcolm supporters, was happy with a decision that seemed to condone outright inventions -- between quotation marks -- in works of nonfiction. But the possibility threatened by Masson's appeal to the Supreme Court -- a draconian definition from the bench of how journalists should write their stories -- seemed even worse. A number of news organizations, including the American Society of Newspaper Editors and Time Warner, filed amicus briefs in support of the New Yorker.

As it turned out, the opinion written by Justice Anthony Kennedy showed considerable understanding of how speech is translated into print. Kennedy condoned the widespread journalistic practice of emending quotations in the areas of grammar and syntax and went even further, stating that "deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity" for the purpose of meeting the actual malice test for libel suits brought by a public figure. Changing a quotation, Kennedy reasoned, can betray a reckless disregard for the truth only "when the alteration results in a material change in the meaning conveyed by the statement." Whether that sort of alteration happened when Malcolm profiled Masson will now be decided by a trial jury in California.

With reporting by Georgia Harbison/New York and Julie Johnson/Washington