Masson v. Malcolm et al.: 1993 & 1994

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Masson v. Malcolm et al.: 1993 & 1994

Plaintiff: Jeffrey M. Masson
Defendants: Janet Malcolm and the New Yorker magazine
Plaintiff Claim: That certain quotes in a profile of the plaintiff written by the defendant and published in the New Yorker were libelous
Chief Defense Lawyer: Gary Bostwick
Chief Lawyer for Plaintiff: Charles 0. Morgan
Judge: Eugene F. Lynch
Place: San Francisco, California
Dates of Trials: May 6-June 3, 1993; October 3-November 2, 1994
Verdict: For the defendant

SIGNIFICANCE: The long legal battle between psychoanalyst Jeffrey Masson and writer Janet Malcolm resulted in a standard for determining when a misquote is grounds for a libel suit. The conflict also stirred an ethical debate among journalists over what is a legitimate quote.

In 1983, journalist Janet Malcolm wrote a two-part profile for the New Yorker magazine of Jeffrey Masson, a flamboyant psychoanalyst who challenged the traditional tenets of Freudian theory. At one time Masson had served as the projects director at the Sigmund Freud Archives in England, but was fired after advancing his dissident beliefs. Malcolm's unflattering profile of Masson portrayed him as a brash, egotistical man. The New Yorker has always had a reputation for its high journalistic standards, so the publishing world was surprised when the magazine and Malcolm were sued for libel.

After the article appeared, Masson claimed he never uttered some of the quotes Malcolm had attributed to him, and in 1984 he sued both Malcolm and the New Yorker, seeking $10 million in damages. Masson also named Alfred A. Knopf in his lawsuit, after the publishing company released the article as a book. Masson's action began a legal battle that took a dozen years to settle.

Back and Forth in the Courts

Masson's case centered around six disputed quotes. In one of the quotes, Malcolm wrote that Masson said he was "like an intellectual gigolo." In another, Masson supposedly said he wanted to turn the house of Anna Freud into a "place of sex, women, fun." Malcolm argued that although some of the quotes were not exactly what Masson had said, they captured the essence of his meaning. She based her article on 40 hours of taped interviews with Masson and typewritten notes from unrecorded conversations. Masson argued that some of the recorded statements were taken out of context, and he denied ever making the comments in the written notes.

A California district court refused to let a jury hear the case, ruling that the six quotes were substantially true or rational interpretations of Masson's intent. The Ninth Circuit Court of Appeals subsequently upheld this judgment. Masson then took his case to the Supreme Court. In Masson v. New Yorker Magazine, Inc. (501 U.S. 496, 1991), the court unanimously found that the lower courts had erred in dismissing the case.

The Supreme Court did allow that not all misquotes were automatic grounds for a libel suit. A misquote first had to be false or substantially alter the speaker's meaning. If that were the case, a jury could then decide if the misquote met the grounds for libel against a public figure—that a statement is knowingly false or printed with reckless disregard for its truth and injures the plaintiff's reputation. The Supreme Court ordered the case returned to the district court so a jury could hear the facts on five of the six disputed quotes.

The libel trial finally began on May 6, 1993, with Malcolm and the New Yorker as defendants. Masson was now seeking $7.5 million in damages. Championing the plaintiff's case, Masson's attorney, Charles 0. Morgan, questioned Malcolm's journalistic techniques. She admitted that she had combined quotes from interviews made days apart, rearranged words, and relied on memory for one of the disputed quotes.

In response, defense lawyer Gary Bostwick portrayed Masson as being untrustworthy. Years earlier, he had denied ever making some of the disputed quotes printed in the article, but Malcolm's tapes showed she had indeed quoted him correctly. Masson's image as an egotistical playboy who in the past had burned professional bridges was also used as a defensive ploy.

On June 3, the jury returned with a mixed decision. It found that Malcolm had made up the five quotes, and two of them did meet the standard for libel. The jury also found that the New, Yorker had not been responsible for the validity of Malcolm's piece. But the jury deadlocked on awarding damages for Masson. Judge Eugene F. Lynch then ordered a new trial to determine the libel award, saying in this case that liability and damages could not be separated.

Final Decision

The second trial began on October 3, 1994. Morgan again challenged Malcolm's ethics as a journalist. He also hinted that she may have had a bias against Masson because of his anti-Freudian leanings. Malcolm was a known supporter of traditional psychoanalysis and her father had been a psychiatrist. A few weeks later, in his closing arguments, Morgan charged that Masson had lost a promising career after being "shot down by the cruelest language of a skilled writer."

Despite these arguments, the jury this time exonerated Malcolm, finding that two of the quotes were false and one was defamatory, but none was written with a reckless disregard for the truth. A relieved Malcolm burst into tears. Masson indicated he might not appeal the verdict, although he subsequently did. In 1996, the Ninth Circuit Court upheld the verdict of the lower court.

Although Malcolm ultimately won her case, some journalists questioned her professional practices. After the 1993 trial, an editor at Time magazine said, "I think it is always dangerous when the public is given any reason to doubt what they have been reading." But when Malcolm was asked if she would change her reporting techniques, she replied, "Absolutely not."

—Michael Burgan