TIME: Almanac 1993/TIME Almanac 1993.iso/time/070191/0701220.000

Text File | 1992-08-28 | 3.8 KB | 85 lines

                                                                                PRESS, Page 68

Justice Comes in Quotes


Journalists can tinker with the words of interview subjects --
but reckless falsity can be libelous


    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.

    By Paul Gray. Reported by Georgia Harbison/New York and
Julie Johnson/Washington