THE MEDIA establishment, warning of a grave threat to the First Amendment, has closed ranks behind a woman accused of fabricating quotations.
Time Inc., the American Society of Newspaper Editors, Authors Guild, Reporters Committee for Freedom of the Press, Society of Professional Journalists and other press champions find themselves in the uncomfortable posture of arguing that changing quotes isn't all that big a deal as long as the writer fairly represents the speaker's character.
The alliance is all the more bizarre because the alleged quote-doctorer is Janet Malcolm, who drew the wrath of the selfsame establishment when she wrote in The New Yorker that every journalist is "a kind of confidence man" whose craft is "morally indefensible."
Of course, many writers and editors have criticized the practices of which Malcolm is accused, and no newspaper or network has joined the march to defend her in court. Even some of the media lawyers involved say they are trying to defend larger legal principles, not Janet Malcolm. Still, the libel suit against Malcolm, which is scheduled for oral argument before the Supreme Court Jan. 14, has left many folks in the news business feeling squeamish.
Malcolm has been sued by Jeffrey Masson, the former projects director of the Sigmund Freud Archives, over a two-part New Yorker profile (and later a book) that she published in 1983. Masson says the author falsely quoted him as comparing himself to an "intellectual gigolo" and using other disputed language that, as it happens, is not among the more than 40 hours of interviews recorded by Malcolm.
Herein lies the fascinating dilemma. Malcolm has sworn she quoted Masson accurately, but the case doesn't turn on that dispute. For the purposes of Malcolm's motion to toss out the suit, the justices must assume that Masson is right in charging that Malcolm fabricated the quotes and determine whether that, by itself, entitles him to a libel trial.
"There is no such thing as a cause of action for mere misquotation," attorneys for Malcolm and The New Yorker say. "Libel law is not concerned with differences of language . . . . Given the realities of journalism, costly litigation over misquotation could readily become a tool of harassment."
This argument doesn't quite wash. To suggest that a journalist can put quotation marks around words never uttered by the speaker is "to assert the right to lie in print," as Judge Alex Kozinski put it in a powerful dissent from a 2-1 ruling for Malcolm by the 9th Circuit Court of Appeals.
Listen to Kozinski's logic: "Because quotations purport to come directly from the speaker, free of editorial comment by the writer, they can have a devastating rhetorical impact . . . as if to say, 'See here, don't just take my word for it, he said it himself.'"
As for the majority's contention that phrases like "intellectual gigolo" are not that different from some of Masson's taped comments, Kozinski says this "is saying, in effect, that if you make statements that could reasonably be construed as boastful or arrogant . . . the reporter may attribute to you any other statement reflecting that same trait . . . . For an academic to refer to himself as an intellectual gigolo is such a devastating admission of professional dishonesty that a jury could well conclude that it is libelous."
So why are some of the country's most prominent First Amendment champions rushing in with their amicus briefs on Malcolm's behalf? It may reflect a circle-the-wagons mentality, a feeling that any case that might widen the grounds for libel actions must be opposed, no matter how distasteful or shoddy the journalism involved.
To be sure, frivolous libel suits, like other frivolous suits, should ideally be thrown out before trial. Jury trials force news organizations to spend hundreds of thousand of dollars in legal fees even when they win on appeal, as they usually do. But a few of the recent multimillion-dollar awards against the press involve problem-filled stories from earlier decades that probably would not have been published in today's more cautious environment. For media lawyers to defend each one in knee-jerk fashion simply reinforces the public notion that journalists are an arrogant, unapologetic lot. Let's make clear what Masson v. Malcolm is about. It's not about whether a writer can clean up grammar and syntax by removing "uhs" and "ahs" and reining in run-on sentences. It's not about whether a writer gets a few words wrong while hurriedly scribbling at a press conference. Nor is it about whether Masson "wins" the case, for he still would have to convince a jury that Malcolm invented the quotes, damaged his reputation and, since he is a public figure, acted with malice.
The issue is whether Janet Malcolm -- who spent months preparing the articles, assured her editors that all quotes were on tape and ignored her subject's complaints during The New Yorker's famed fact-checking process -- put words in Jeffrey Masson's mouth.
Masson was a colorful subject, thanks to his theories of psychoanalysis, his outspoken criticism of Freud, his pariah status after being fired by the Freud Archives and his willingness to talk about it all. While some of the key quotes remain in dispute, there is evidence that Malcolm cut a few corners.
During the supposed "intellectual gigolo" conversation, for example, Malcolm's article describes how she and Masson were having lunch at Chez Panisse in Berkeley. In the first part of the quote, which is on tape, Masson says that Anna Freud and others at the Freud Archives regarded him as "a private asset but a public liability."
But Malcolm now says the comment that followed ("I was like an intellectual gigolo -- you get your pleasure from him, but you don't take him out in public") took place while Masson was visiting her in New York. In other words, she admits tacking on an explosive quote from another interview and asks us to believe that the second comment, by coincidence, was not taped.
Another part of Malcolm's typed manuscript described Masson's intentions had he been able to take over Freud's house in England: "Sun would have come pouring in, people would have come, there would have been parties and laughter and fun." That sentence was crossed out, and the following sentence, which appeared in The New Yorker, was handwritten above it: "Marsefield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun."
Masson insists he never said "sex, women, fun," which again is not on tape. Malcolm says she destroyed her handwritten notes of the untaped conversations but kept her typewritten transcription of those notes.
To buttress her side, Malcolm points to Masson's taped comments regretting his youthful promiscuity, including his statement that he slept with nearly 1,000 women. The appeals court takes note of this in saying that the disputed quotations are okay because they are "rational interpretations of ambiguous remarks."
In a third instance, Malcolm "deleted 33 words out of a 40-word sentence, utterly changing Masson's meaning so as to make him say the antithesis of what he actually said," Kozinski's dissent charges. There is little doubt that Masson's purported remarks shredded his reputation. Harvard professor Robert Coles, reviewing Malcolm's article in the Boston Globe, said Masson emerges as "a grandiose egotist -- mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: His own words reveal this psychological profile . . . ."
But what if these weren't "his own words"? Can the courts really uphold the notion that someone can be hung with nonexistent rhetoric and have no right to take his case to a jury?
Floyd Abrams, the respected New York media lawyer, says a ruling against Malcolm "could lead to an explosion of libel litigation." Doctoring quotes may be highly unethical, he says, but not necessarily libelous.
"Many people who are interviewed are angry about what is attributed to them," Abrams says. "Even if the quote is precise in all respects, they say it's out of context. That's typical for people to think they didn't say, or claim they didn't say, things that make them look bad . . . . If what someone is quoted as saying is not precisely what the person says he said -- but it can be proved that what he did say is not substantially different -- then a libel suit should not be allowed."
Anyone who has worked on a newspaper for more than a few weeks knows that Abrams has a point. Newsmakers frequently try to deny their published comments. Tape recorders are often impractical, particularly on the run or over the phone. Sometimes they malfunction or produce inaudible passages. I certainly would not want to be forced into a libel trial simply because some embarassed official claims, "I never said that."
But the circumstances of the Masson case, with its 40 hours of transcripts, are unusual. A narrow ruling in favor of the plaintiff would not necessarily throw open the courthouse doors to hordes of disgruntled officials. Few journalists are reckless enough to publish a potentially libelous story based on a few disputed quotes and no other supporting evidence.
Malcolm's defenders are missing the larger point. Every news story, with its endless choices about language and emphasis and paraphrasing, is necessarily shaded by the writer's own filter. Direct quotes remain the most powerful means of assuring the reader that he is getting the unvarnished truth from the subject's own lips. If readers can't trust us to read those lips accurately, we will have kicked away much of our credibility.
Howard Kurtz covers the media for The Washington Post.