Proving the Power of a Quote : Libel: As Twain said, the difference between the right word and the almost right word is the difference between the lightning and the lightning bug. But were those his exact words?

In 1936, the Duke of Windsor, having relinquished his throne, told the world, “At long last, I am able to say a few words of my own.” A public figure might feel the same sense of relief today if his quoted remarks turn out to be his own words. For the traditional view of the quotation mark may be going the way of the dinosaur.

According to Webster, a quotation mark denotes “the beginning and end of a passage attributed to another and repeated word for word.” But, in the libel suit brought by Jeffrey M. Masson against Janet Malcolm and the New Yorker magazine, the defense has raised serious doubt as to the continuing viability of that definition. In a two-part article based on interviews with Masson, Malcolm altered the analyst’s actual statements but put them within quotation marks anyway. Malcolm also engaged in a practice she calls “compression.” This means taking statements made in several interviews over days or weeks and stringing them together as if they were all said at the same time. Then, Malcolm even changed the original setting of his statements.

Malcolm has argued that her right to do these things is guaranteed by the First Amendment, that her conduct was justified because her “quotations” expressed the substance of Masson’s views and his personality, even if they did not accurately state what he said.

The First Amendment does many things. But it does not guarantee the unlimited right to alter or compress statements and to report the altered version within quotation marks. When the first phase of the Masson case got to the U.S. Supreme Court, the court, in rejecting Malcolm’s argument, ruled that knowingly altering a quotation so as to change its meaning is libel--and not protected by the First Amendment. The case was sent back to the lower court, and a jury now hearing it in San Francisco will decide whether or not Malcolm did change the meaning of Masson’s remarks and whether she did so deliberately.

If Malcolm’s argument prevails, reporters who alter quotes will argue that their altered version retains the substance of the speaker’s meaning. But judges and juries may well take a skeptical view of such claims. They will ask why the reporter needed to change the quotes at all. And rightfully so. Different words rarely convey the same nuances of meaning. A little change here and there, a clever use of “Roget’s Thesaurus,” and we can get a dramatically altered result.

Suppose a local politician is addressing a pro-choice organization. Speaking of the group’s woman president, he says, “She’s highly motivated to succeed and vigorously pursues her goals.” A reporter quotes the politician as saying, “She’s ambitious, aggressive and pushy.” The newspaper’s lawyer could argue that “ambitious” is the rough equivalent of “highly motivated to succeed” and being “aggressive” and “pushy” is not really so different from being one who “vigorously pursues her goals.”

But we know better and so would a jury. What the politician said was meant to be complimentary, and the way it was reported clearly was not. Under the Supreme Court’s earlier opinion in Masson, creating that sort of false impression should not--and will not--be tolerated.

The high court’s opinion was correct as far as it goes. But is it far enough? It’s not just altering the meaning of a statement that’s potentially libelous. If the manner of expression is changed, meaning may be the same, but the person quoted may appear foolish or bigoted.

Suppose a local politician says, “Gov. Wilson doesn’t know anything about tax policy.” But the reporter quotes him as saying “Gov. Wilson don’t know nothing about tax policy.” The meaning is the same. No libel? Don’t bet on it. The altered wording creates the false impression that the speaker lacks the most basic knowledge of grammar. Courts are not going to put up with that kind of distortion--even if the meaning is unchanged. And, while it’s not free from ambiguity, there is even language in the Supreme Court’s opinion in Masson that suggests there will be liability in that kind of case.

And what of “compression?” Is that libel? Often it will be. Let’s say a happily married actor is interviewed in his lawyer’s office by a woman reporter. There are several long sessions over a three-month period. In January, as part of a two-hour interview, the actor is asked to list what he considers important in his life. Along with his family and health, he adds, “And, listen, I certainly don’t want to do without sex.” In February, in another long interview, the actor is asked about the activities in which he considers himself proficient. He suggests tennis and skiing, plus, of course, acting. Then, he laughingly adds, “And, I hope, sex.” Finally, in March, at the end of the last interview, the actor politely asks the reporter, “Are you leaving town tonight?”

Now, suppose this reporter is a staunch advocate of the post-modern journalistic concepts of “quotation” and “compression.” She places the interview not in the lawyer’s office, where it took place, but over lunch at a romantic restaurant. She writes that, while drinking some chilled Chardonnay, the actor leaned close and whispered, “I gotta have sex. I’m good at it. What are you doing later?”

“Compression?” Yes. Legitimate quotation? Certainly not. Libel? Absolutely.

The reporter will argue, “I don’t want to do without sex” is the equivalent of “I gotta have sex;” that the actor’s saying he “hopes” he’s good at sex is, in substance, the same as saying he is “good at it,” and that asking, “Are you leaving town?” is not materially different from asking, “What are you doing later?”

But this misses the point. The meaning of each remark, separately analyzed, might not have been significantly altered. But when run together as if said at the same time, it creates the false impression that the actor made a sexual proposition to the reporter, and a crude, egotistical one at that. Creating that false impression is libelous.

Will the threat of jury verdicts in these situations have a chilling effect on free speech? Not at all. Reporters can avoid such libel suits just by quoting accurately and reporting truthfully where and when a statement was made. If a reporter doesn’t recall what was said with accuracy or wants to paraphrase, it’s easy. Don’t use quotation marks. After all, it’s the speaker, not the reporter, who is judged by quotations; and it’s the speaker, not the reporter, who should be allowed to choose the words attributed to him or her. A reporter who consciously alters another’s words and yet puts them in quotation marks may argue that no meaningful change has occurred, but, as the law stands, he or she assumes the risk that a jury will disagree.