U.S. Court Dismisses Libel Suit Against the New Yorker

Journalists can make up quotes by a public figure as long as they are reasonable interpretations of what the speaker actually said, a federal appeals court ruled Friday in a libel suit by the former director of the Freud Archives.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals refused to reinstate a suit by Jeffrey Masson, who claimed that writer Janet Malcolm fabricated numerous statements she attributed to him in a New Yorker magazine article and a book.

The purported quotes, which were not in the transcripts of Malcolm’s tape-recorded interviews of Masson, included Masson’s description of himself as an “intellectual gigolo,” his statement that after Sigmund Freud, Masson would be viewed as “the greatest analyst who ever lived,” and a statement that he would have turned the Freud house into “a place of sex, women, fun.”

Assuming that Masson never said any of those things, they were reasonable interpretations of taped statements he actually made, said the court majority.

‘Rational Interpretations’

In a libel suit by a public figure, who must prove that harmful statements were deliberately or recklessly false, quotations can be fabricated if they are “rational interpretations of ambiguous remarks” or “do not alter the substantive content of unambiguous remarks,” Alarcon said.

Judge Alex Kozinski dissented, arguing there was evidence Malcolm deliberately doctored quotes to make them more bombastic.

“Truth is a journalist’s stock in trade,” said Kozinski. “To invoke the right to deliberately distort what someone else has said is to assert the right to lie in print.”

A Dozen Quotes

In challenging the integrity of the article, the suit focused on about a dozen quotes that Masson said were altered or never uttered. In one instance, he is quoted as referring to himself as an “intellectual gigolo,” in talking about his conversations with Eissler and Anna Freud.

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

The court noted that the taped interview of this conversation went thusly:

“(Eissler and Anna Freud) felt, in a sense, I (Masson) 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.”

Non-Defamatory Term

The court held that malice could not be inferred from the purported fabrication because Malcolm’s use of the term “intellectual gigolo” was non-defamatory and “a rational interpretation of (these) . . . comments.”

Kozinski argued that under the majority ruling a person can be misquoted to sound stupid, arrogant, evil or insincere and be denied a legal remedy.

“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. Neither the authorities on which the majority relies nor the applicable First Amendment principles suggest otherwise.”

Kozinski said The New Yorker was widely acknowledged as the flagship publication when it comes to truth and accuracy and that to invoke the right to distort a conversation in print “debases the journalistic profession as a whole.”

Fired From Post

Masson, a Berkeley resident, was fired in 1981 as director of the Freud Archives. In 1984, he wrote a book saying Freud, the founder of modern psychoanalysis, had abandoned his “seduction theory”--blaming personality disorders on childhood sexual abuse--in order to advance his career.

Masson’s suit against the New Yorker, Malcolm and the publisher of her 1984 book “In the Freud Archives” contends that Malcolm maliciously distorted his views by misquoting him. Friday’s ruling upholds a 1987 ruling by U.S. District Judge Eugene Lynch that dismissed the suit without a trial.