Masson v. New Yorker Magazine, Inc.

• Decision Date: 17 August 1987
• Docket Number: No. C-84-7548 EFL.,C-84-7548 EFL.
• Citation: 686 F. Supp. 1396
• Court: U.S. District Court — Northern District of California
• Parties: Jeffrey M. MASSON, Plaintiff, v. The NEW YORKER MAGAZINE, INC.; Alfred A. Knopf, Inc.; Janet Malcolm, Defendants.

686 F. Supp. 1396

Jeffrey M. MASSON, Plaintiff, v. The NEW YORKER MAGAZINE, INC.; Alfred A. Knopf, Inc.; Janet Malcolm, Defendants.

No. C-84-7548 EFL.

United States District Court, N.D. California.

August 17, 1987.

Charles O. Morgan, San Francisco, Cal., for plaintiff.

Karl Olson, Cooper, White & Cooper, San Francisco, Cal., for defendants.

ORDER GRANTING SUMMARY JUDGMENT

LYNCH, District Judge.

I. INTRODUCTION

This is an action for defamation and invasion of privacy brought by Jeffrey Masson against defendants Janet Malcolm, The New Yorker magazine, and Alfred A. Knopf, Inc. The dispute arises out of an article written by defendant Malcolm based primarily upon extensive tape-recorded interviews given to Malcolm by Masson.

Malcolm's article describes how Masson quickly became relatively prominent in the field of psychoanalysis, and was appointed Projects Director of the Freud Archives. Masson claimed to have made many discoveries regarding material that had been suppressed by the psychoanalytical "establishment." The article explains Masson's belief that this information leads to conclusions that will result in the destruction of established psychoanalytic theories and of psychoanalysis itself. As a result of his outspoken criticism of Freudian psychoanalysis, he was fired from his position at the Freud Archives, and rejected by his colleagues.

The 48,500-word article was published in successive issues of The New Yorker magazine on December 5 and 12, 1983, and was reprinted by defendant Knopf in a 165-page book entitled In the Freud Archives. The publications were based upon 1,065 pages of tape transcripts and notes. Plaintiff claims that misquotations in the article and book¹ falsely portray him as egotistical, vain, and lacking in personal honesty and moral integrity.

This Court has required plaintiff to amend his complaint to specifically identify each passage in the article upon which he relies in asserting that the article is libelous. In his Fourth Amended Complaint, Masson identified twelve allegedly libelous passages. On August 19, 1986, this Court granted partial summary judgment, holding that four passages were substantially true and could not be relied upon to support plaintiff's claim of libel. Currently before the Court is defendants' second motion for summary judgment. Defendants argue that no genuine issue of material fact exists on the issue of whether defendants published any of the remaining eight statements with actual malice.²

For the reasons discussed below, this Court grants summary judgment in favor of all defendants.

II. APPLICABLE LAW

The parties agree that plaintiff is a public figure. A libel plaintiff who is a public figure bears the burden of proving with clear and convincing affirmative evidence that defendants published a statement with actual malice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.

Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.

Id.

The actual malice standard requires proof of a subjective mental element of knowing falsity or a reckless disregard of falsity by a defendant. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Reckless disregard can be established only if defendants "in fact entertained serious doubts" about the truth of the story before publication. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). The actual malice inquiry focuses on defendants' state of mind regarding the truth of the statements. Monitor Patriot Company v. Roy, 401 U.S. 265, 276, 91 S.Ct. 621, 627, 28 L.Ed.2d 35 (1971). Therefore, in order to defeat a properly supported motion for summary judgment, plaintiff must produce clear and convincing evidence that defendants knowingly and falsely published the alleged defamatory statements, or in fact entertained serious doubts as to the truth of the alleged statements, yet recklessly disregarded those doubts.

Courts have "clearly recognized the need for a certain degree of literary license when properly applying the New York Times standard to the facts of each case." Reader's Digest Association v. Superior Court, 37 Cal.3d 244, 261, 208 Cal.Rptr. 137, 690 P.2d 610 (1984). "Erroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the `breathing space' that they `need ... to survive.'" Id. (quoting New York Times, 376 U.S. at 271-72, 84 S.Ct. at 721-22). A writer is entitled to select one of several possible rational interpretations of an event which "bristled with ambiguities and descriptive challenges" for the author. Reader's Digest, 37 Cal.3d at 262, 208 Cal.Rptr. 137, 690 P.2d 610 (quoting Bose Corporation v. Consumer's Union, 466 U.S. 485, 512, 104 S.Ct. 1949, 1966, 80 L.Ed.2d 502 (1984)). "The choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment's broad protective umbrella." Bose, 466 U.S. at 513, 104 S.Ct. at 1966.

Similarly, fictionalization or dramatization of conversations does not satisfy the requirement of clear and convincing evidence from which a jury could find defendants published the alleged defamatory statements with actual malice, so long as the change does not "increase the defamatory impact or alter the substantive content" of the actual statement or statements upon which the author relied. Hotchner v. Castillo-Puche, 551 F.2d 910, 914 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). The inclusion of quotation marks in a passage does not require complete accuracy; a writer may resort to rhetorical license. Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 263-64, 228 Cal.Rptr. 206, 721 P.2d 87 (1986), cert. denied, ___ U.S. ___, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987).

III. DISCUSSION

This Court has carefully analyzed each disputed passage separately,³ comparing the alleged defamatory material with relevant portions of the tape-recorded interviews to determine whether rational jurors could find by clear and convincing evidence that defendants entertained serious doubts about the accuracy of the printed material.⁴

No direct evidence of actual malice exists. The writer, Malcolm, has stated in a declaration that she does not think, "and did not think before publication, that any quotations in the article or book were distorted or taken out of context." She has further maintained that:

I quoted Mr. Masson accurately, I presented him as he presented himself to me, and in writing my article/book I was consistently and solely guided by the ambition of making him as lifelike and real as possible so that my readers would get the same sense of him that I had received from actually knowing him. I invented nothing. I never harbored the slightest ill-will toward Mr. Masson....

Declaration of Janet Malcolm in Support of Defendants' Motion for Summary Judgment at 5.

Plaintiff claims that the requisite malice can be inferred simply based upon the alleged literal inaccuracy of the statements or the fact that Masson did not actually use the precise words that Malcolm attributed to him. However, this method of inferring malice has been disapproved by the Supreme Court. Bose, 466 U.S. at 512, 104 S.Ct. at 1966; Time, Inc. v. Pape, 401 U.S. 279, 285-86, 91 S.Ct. 633, 637-38, 28 L.Ed.2d 45 (1971). A report of what someone has said about an event "can contain an almost infinite variety of shadings." Id. at 286, 91 S.Ct. at 637. The fact that an author selected "one of a number of possible rational interpretations" of a conversation or event that "bristled with ambiguities" is "not enough to create a jury issue of `malice'". Bose, 466 U.S. at 512-13, 104 S.Ct. at 1966; Time, Inc., 401 U.S. at 290, 91 S.Ct. at 639. This Court therefore focuses its inquiry on whether the author's choice of words in each disputed passage was a rational interpretation of Mr. Masson's tape-recorded statements.

A. The Disputed Passages

1. "It Sounded Better"

Malcolm quoted Masson as stating:

My father is a gem merchant who doesn't like to stay in any one place too long. His father was a gem merchant, too ... named Moussaieff, who went to Paris in the twenties and adopted the name Masson. My parents named me Jeffrey Lloyd Masson, but in 1975 I decided to change my middle name to Moussaieff—it sounded better.

On tape Masson stated that he wanted to "give back Moussaieff," and that he "just liked it"; it was "sort of part of analysis, a return to the roots, and your family tradition and so on."

In the August 19, 1986 Partial Summary Judgment Order, this Court noted that it could see little difference between Masson's own words and those attributed to him by Malcolm. The article does inform the reader that Moussaieff was a family name, and the slight difference between the phrase "It sounded better" and "I just liked it" is not sufficient to raise a triable question of fact on the issue of actual malice. The phrase used was a rational interpretation of Masson's own statements.

2. "He Had the Wrong Man"

Masson alleges that Malcolm "willfully distorted the context" of Masson's remark that Dr. Eissler had the "wrong man" if he expected Masson to "just live with" his firing from the Freud archives in silence.

Masson's remarks in the transcript of the tape-recorded interviews are as follows:

But it was wrong of

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