Writer May Alter Quotes, Court Rules

In a major First Amendment decision, a federal appeals court ruled Friday that a journalist may deliberately alter quotations provided that the fabricated quotations reflect the essence of what a public figure said in an interview.

In a 2-1 decision, the 9th Circuit Court of Appeals in Pasadena upheld a lower court dismissal of a libel suit filed by writer-psychoanalyst Jeffrey M. Masson against author Janet Malcolm and her publishers, The New Yorker and Alfred A. Knopf. The suit asserted that the magazine articles, subsequently reprinted in book form by Knopf, misquoted Masson and made him appear unscholarly, irresponsible, vain and lacking integrity.

The case stemmed from two December, 1983, New Yorker articles Malcolm wrote about how Masson was fired from his position as projects director of the Sigmund Freud Archives. The articles were largely based on 40 hours of Malcolm’s tape-recorded interviews with Masson.

At issue were at least a dozen quotations attributed to Masson, including one in which he was purported to have described himself as an “intellectual gigolo.” He said he never made the statement.

The majority opinion, written by Judge Arthur Alarcon, said Masson had failed to show that Malcolm and her publishers had acted with actual malice, even though she deliberately altered quotes, because she believed that the quotes reflected the essence of statements Masson made to her. Judge Cynthia Holcomb Hall joined in Alarcon’s opinion.

As a public figure, Masson had to show both that the statements in question were false and that Malcolm had acted with actual malice, a standard enunciated by the Supreme Court in the landmark case of New York Times vs. Sullivan in 1964.

Majority Opinion

The majority opinion held that malice could not be inferred from the evidence of deliberately altered quotations if the fabricated quotations are either “rational interpretations” of ambiguous remarks made by a public figure or do not “alter the substantive content” of unambiguous remarks made by a public figure. The majority opinion acknowledged that “it is uncontroverted that Malcolm fictionalized certain quotations and attributed them to Masson.”

Alarcon distinguished between Malcolm’s altering of quotations and a writer’s use of statements attributed to an individual that are “wholly the product of the author’s imagination.” He cited a case where this happened in an article about Johnny Carson.

Judge Alex Kozinski issued a lengthy and ringing dissent. “While courts have a grave responsibility under the First Amendment to safeguard freedom of the press, the right to deliberately alter quotations is not, in my view, a concomitant of a free press.”

He quoted a number of journalism textbooks and statements from authorities in the field on the vice of creating or doctoring quotes, in particular because quotes are considered more authoritative than paraphrases from a writer.

Kozinski concluded his opinion by stating: “Truth is a journalist’s stock in trade. To invoke the right to deliberately distort what someone else has said is to assert the right to lie in print. To have that assertion made by The New Yorker, widely acknowledged as the flagship publication when it comes to truth and accuracy, debases the journalistic profession as a whole.”

But Floyd Abrams, a leading First Amendment lawyer who has frequently represented the New York Times, applauded the decision. “I think the majority rightfully protects Malcolm’s speech even though people could differ as to whether it was proper to put certain things in quotes or compress what Masson said in order to make it easier to read,” he said.

“It’s an important ruling because the law has been in a state of some confusion as to what inferences, if any, may be drawn from the use of quotations which approximate but are not exact copies of what was said,” Abrams said. “The court’s ruling today affords considerable protection to a journalist as long as she has not engaged in a wholesale fabrication.”

Significance ‘Limited’

Kenneth Karst, a UCLA law professor who is a constitutional law specialist, called the case “doctrinally interesting” after a summary of the decision and several key passages were read to him. “The New York Times rules require that a plaintiff prove falsity and malice. . . . It sounds (like) . . . the majority here is tying those two issues together and saying if it isn’t very false it can’t be malicious.”

However, he said “the significance of this for journalists may be very limited. I would think most journalists want to use accurate quotations and would try hard to do that. If there were transcripts, most journalists would want to use the transcripts.”

Masson attacked the decision in a telephone interview from his home in Berkeley and said he would appeal to the Supreme Court. “If this becomes the law of the land--that quotation marks do not guarantee the accuracy of what is contained between them--it plays havoc with the whole profession of journalism,” said Masson, 48. He said he recently signed a contract to write his autobiography, “The Making and Unmaking of an Analyst.”

Malcolm did not return calls placed to her summer home in Massachusetts. One of her lawyers, Neil Shapiro, a libel specialist with Cooper, White & Cooper in San Francisco, said he was pleased with the outcome. “Although the quotes (in question) were not verbatim, I’m delighted that the court looked through that technicality and saw it was the substance of what (Masson) said.”

The ruling comes amid a heated controversy in the journalistic community surrounding two articles Malcolm wrote in The New Yorker last March which asserted that “every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance or loneliness, gaining their trust and betraying them without remorse.”

Malcolm’s critics have noted that she did not disclose in the articles that she herself had been sued for libel.

Clash Described

In the articles that were the subject of Friday’s decision, Malcolm described the clash between Masson and the archive’s board members, principally Dr. Kurt Eissler and Dr. Anna Freud, over Sigmund Freud’s abandonment of his “seduction theory”--a hypothesis that assumed certain mental illnesses were generated by sexual abuse during childhood. Masson asserted that Freud discarded the theory to placate colleagues and further his career.

Masson’s contentions, published in his book “The Assault on Truth: Freud’s Suppression of the Seduction Theory,” which came out just months after Malcolm’s articles, earned him the enmity of most traditional psychoanalysts.

The suit centered on a dozen quotes that Masson asserted were altered or never uttered. One of the most controversial passages is a quote Malcolm attributes to Masson referring to himself as an “intellectual gigolo” while telling her about his discussions with Eissler and Anna Freud.

“They loved to hear from me what creeps and dolts analysts are,” the passage said. “I was like an intellectual gigolo--you get your pleasure from him, but you don’t take him out in public.”

The opinion noted that this quote is not to be found in Malcolm’s tape-recorded interviews. The quote does appear in a typed version of handwritten notes Malcolm said she made while interviewing Masson in New York. Malcolm testified that she lost the originals.

Masson asserted that the quote and the typed notes were fabricated.

In one taped interview, Masson actually said that Eissler and Anna Freud “felt, in a sense, I was a private asset but a public liability. They liked me when I was alone in their living room and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me.”

The majority opinion said that the term “intellectual gigolo” is not defamatory. And Judge Alarcon wrote that “while it may be true that Masson did not use the words ‘intellectual gigolo,’ Malcolm’s interpretation did not alter the substantive content of Masson’s description of himself as a ‘private asset but a public liability’ to Eissler and Anna Freud.

“The district court did not err in determining that Masson did not prove by clear and convincing evidence that Malcolm acted with malice in attributing the words ‘intellectual gigolo’ to Masson.”

Judge Kozinski took sharp exception to this analysis. “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. . . . I fail to see how the term can fairly be derived from Masson’s actual statement.”

Malcolm’s story said the conversation occurred while she and Masson were having lunch at Chez Panisse, a Berkeley restaurant. “Malcolm now admits that the statement was made at a different time and place, while Masson was visiting her in New York,” Kozinski said.