881 F.2d 1452 (9th Cir. 1989), 87-2665, Masson v. New Yorker Magazine, Inc.

Docket Nº:87-2665, 87-2700.
Citation:881 F.2d 1452
Party Name:Jeffrey M. MASSON, Plaintiff/Appellant/Cross-Appellee, v. The NEW YORKER MAGAZINE, INC., Alfred A. Knopf, Inc., and Janet Malcolm, Defendants/Appellees/Cross-Appellants.
Case Date:August 04, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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881 F.2d 1452 (9th Cir. 1989)

Jeffrey M. MASSON, Plaintiff/Appellant/Cross-Appellee,


The NEW YORKER MAGAZINE, INC., Alfred A. Knopf, Inc., and

Janet Malcolm, Defendants/Appellees/Cross-Appellants.

Nos. 87-2665, 87-2700.

United States Court of Appeals, Ninth Circuit

August 4, 1989

Argued and Submitted June 16, 1988.

Charles O. Morgan, Jr., San Francisco, Cal., for plaintiff/appellant/cross-appellee.

Karl Olson, Cooper, White & Cooper, San Francisco, Cal., for defendants/appellees/cross-appellants.

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Appeal from the United States District Court for the Northern District of California.

Before ALARCON, HALL and KOZINSKI, Circuit Judges.

ALARCON, Circuit Judge:

In this libel action, plaintiff-appellant Jeffrey M. Masson appeals from the order of the district court granting summary judgment to defendants-appellees The New Yorker Magazine, Inc. ("The New Yorker"), Alfred A. Knopf, Inc. ("Knopf"), and Janet Malcolm. We affirm.


In 1983, Janet Malcolm published a two-part article in The New Yorker magazine concerning the termination of psychoanalyst Jeffrey M. Masson from his position as Projects Director of the Sigmund Freud Archives (Archives). The article, subsequently reprinted in book form by publisher Knopf, was largely based upon Malcolm's tape-recorded interviews with Masson. In the article, Malcolm described the struggle between Masson and other board members of the Archives, notably Dr. Kurt Eissler and Dr. Anna Freud, over Sigmund Freud's abandonment of the "seduction theory"--a hypothesis that assumes that certain mental illnesses originate in sexual abuse during childhood. Malcolm discussed Masson's claim that his contract with the Archives was terminated because he "went public" with his views that Freud abandoned the seduction theory simply to further his career and placate his colleagues.

On November 29, 1984, Masson filed this diversity action in the district court against Malcolm, The New Yorker, and Knopf. Masson contended that the defendants libeled him and placed him in a false light in violation of Cal.Civ.Code Sec. 45 (West 1982). Masson contended that Malcolm fabricated words attributed to him within quotations marks, and misleadingly edited his statements to make him appear "unscholarly, irresponsible, vain, [and] lacking impersonal [sic] honesty and moral integrity." He also charged that The New Yorker and Knopf knew of Malcolm's misconduct prior to publication of the article and book.

Each of the defendants moved for summary judgment. The district court granted these motions on the ground that Masson had failed to establish actual malice. 686 F.Supp. 1396. The district court concluded that "[n]o clear and convincing evidence exists that would justify a finding that ... [Malcolm, The New Yorker, or Knopf] entertained serious doubts about the truth of the disputed passages."


"A grant of summary judgment is reviewed de novo. Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c)." Coverdell v. Department of Social & Health Serv., 834 F.2d 758, 761 (9th Cir.1987) (citation omitted). The standard governing summary judgment in the district courts in libel actions brought by public figures was recently described by the Supreme Court in Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Where the factual dispute concerns actual malice ..., the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding ... that the plaintiff has shown actual malice by clear and convincing evidence...." Id. at 255-56, 106 S.Ct. at 2514.


A. "Fictionalized" Quotations

1. Legal Framework

Masson admits that he is a public figure and that he was constitutionally required to prove that Malcolm was motivated by actual malice. He contends he presented sufficient evidence of actual malice to defeat Malcolm's summary judgment motion. He argues that a jury could find actual malice by clear and convincing evidence based solely on the evidence he presented showing that Malcolm had deliberately "fabricat[ed] quotations ascribed to him." As evidence of such deliberate fabrication, Masson presented evidence that the several

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quotations attributed to him did not appear in the tape recordings of his conversations with Malcolm, that Malcolm herself had altered quotations, and that he had alerted staff at The New Yorker that the quotations had been altered prior to publication. For the purpose of this appeal, we assume the quotations were deliberately altered.

Neither the Supreme Court, nor this circuit, has had occasion to address the question whether a finding of malice may hinge upon evidence showing that a defamatory statement attributed to a person by using quotation marks does not contain his or her exact words. This question, however, has been addressed by several federal and state appellate courts.

In Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446 (3rd Cir.1987), the record showed that the Mayor of Elizabeth, New Jersey, in discussing his city's problems with litter, stated:

You have a lot of new people moving into the City of Elizabeth, some coming from foreign lands where abject poverty was something they lived with everyday and they have not yet been assimilated into our type of society, and it will take a great deal of time for some of them to respect the rights and the properties of other people, and above all, to respect a city that offers them a home in what I consider to be a wholesome environment.

Id. at 448. A Spanish-language newspaper summarized these comments in a headline which, when translated into English, read, "Elizabeth Mayor on the Attack: Calls Hispanics 'Pigs.' " Id.

The Mayor sued the newspaper for libel. He argued that the newspaper, "by enclosing 'cerdos' ['pigs'] in single quotation marks, purported to proclaim that the mayor had in fact used the word 'pigs' in discussing the litter problem." Id. at 450. He contended that the jury could find that the newspaper acted maliciously solely on the basis of evidence demonstrating that the "pigs" quote was fictionalized.

The district court in Dunn granted summary judgment to the newspaper finding the mayor "had failed to present clear and convincing evidence that the newspaper published the headline with actual malice." Id. at 449. The Third Circuit agreed. The Third Circuit held that "the headline was a rational interpretation of remarks that bristled with ambiguities." Id. at 452. "[W]e are convinced that the word [pigs] was a fair, albeit inadequate, translation of the relatively new additions to the American vocabulary of the words 'litter,' 'litterer,' or 'litterbug'...." Id.

In Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977), the evidence showed that the author of a book published in Spanish quoted author Ernest Hemingway as describing the public figure plaintiff as "dirty and a terrible ass-licker. There's something phony about him. I wouldn't sleep in the same room with him." Id. at 914. The publisher of the English-language edition of this book "toned down" this quotation, id. at 912; it quoted Hemingway as stating: "I don't really trust him [the plaintiff]...." Id.

The plaintiff sued for libel contending, inter alia, that the evidence it presented showing that the publisher "knowingly published a bowdlerized version of Hemingway's alleged statement" was sufficient to establish that the publisher acted maliciously. Id. at 914. The Second Circuit concluded in Hotchner that "[i]t is true that in transforming Hemingway's words to the much milder 'I don't trust him,' ... [the publisher] was fictionalizing to some extent. However, the change did not increase the defamatory impact or alter the substantive content of Hemingway's statement...." Id. Accordingly, "there was no evidence from which the jury might reasonably have found that the defendant published the alleged libels with knowledge of falsity or reckless disregard for truth." Id.

In Carson v. Allied News Co., 529 F.2d 206 (7th Cir.1976), a newspaper reporter wrote an article describing "in copious detail the supposed struggle between [Johnny] Carson and ... NBC executives wherein Carson was seeking to move the [Tonight] show [from New York to Hollywood] and NBC was resisting the move." Id. at

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212. "The article contains supposed quotations by Carson to the executives and their responses and reactions." Id.

The plaintiff in Carson presented evidence showing that the reporter admitted he had "completely fabricated" the quotations attributed to the plaintiff. Id. Carson argued that malice could be inferred solely on the basis of this evidence. The district court disagreed and granted summary judgment to the defendants. Id. at 208.

In reversing the district court's order, the Seventh Circuit commented as follows:

In the catalogue of responsibilities of journalists ... must be a canon that a journalist does not invent quotations and attribute them to actual persons. If a writer can sit down in the quiet of his cubicle and create conversations as 'a logical extension of what must have gone on' and dispense this as news, it is difficult to perceive what First Amendment protection such fiction can claim....

Because of ... the wholly imagined but supposedly precisely quoted conversations regarding the purported struggle preceding the westward move of the Tonight Show, the plaintiffs are entitled to a jury's determination of whether actual malice existed.

Id. at 213.

In Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29, cert...

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