895 F.2d 1535 (9th Cir. 1989), 87-2665, Masson v. New Yorker Magazine, Inc.

Docket Nº:87-2665, 87-2700.
Citation:895 F.2d 1535
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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895 F.2d 1535 (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.

As Amended on Denial of Rehearing and

Rehearing En Banc Feb. 15, 1990.

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." 686 F.Supp. at 1407.


The California Civil Code states: "Libel is a false and unprivileged publication by writing ... which exposes any person to hatred, contempt, ridicule, or obloquy, or which has a tendency to injure him in his occupation." Cal.Civ.Code Sec. 45 (West 1982). In suits brought by public figures, California courts have limited recovery of damages under the statute to cases in which the plaintiff can demonstrate that the defendant published the falsehood with actual malice, as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). "[T]he New York Times decision superimposes a constitutional standard on the common law of libel. If the person defamed is a public figure, [he must prove] that the libelous statement was made with ' "actual malice"--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' " Readers' Digest Ass'n v. Superior Court, 37 Cal.3d 244, 256, 208 Cal.Rptr. 137, 144, 690 P.2d 610, 617 (1984) (quoting New York Times, 376 U.S. at 279-80, 84 S.Ct. at 725-26). In interpreting the actual malice standard, California courts have looked to federal precedent. See McCoy Hearst Corp., 42 Cal.3d 835, 860-71, 231 Cal.Rptr. 518, 534-42, 727 P.2d 711, 727-36 (1986) (drawing on federal applications of the New York Times standard). Because this is a diversity action, we must follow the California Supreme Court's practice of using both California and federal decisions to define actual malice in determining

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whether summary judgment was appropriate. Our decision, however, ultimately rests on whether the statements at issue constituted malice as matter of federal constitutional law.

"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 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 United States Supreme Court nor the California Supreme Court 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. One California appellate court, however, has addressed the question, as have several federal courts of appeals.

In Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29, cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979), disapproved on other grounds, McCoy, 42 Cal.3d 835, at 846 n. 9, 727 P.2d 711, 231 Cal.Rptr. 518, an author, in an alleged novel, quoted an allegedly fictional psychiatrist as demanding, in a profane and insensitive manner, that a patient "drag" his wife to a "nude marathon." Id. 92 Cal.App.3d at 70-71, 155 Cal.Rptr. 29. The plaintiff, a psychologist who is a public figure, sued for libel claiming that book was actually about him, and that the defamatory quotations attributed to him were fictionalized. The plaintiff produced a tape recording of a therapy session which the author attended. The tape disclosed that the psychologist had merely suggested, in a non-profane and sensitive manner, that a patient bring his wife to a nude marathon. Id.

The jury found that the book was not fiction, that the quotations attributed to the psychologist were false and defamatory, and that the defendant published the quotations with actual malice. The defendant appealed, claiming, inter alia, that clear and convincing evidence did not support the jury's finding of malice. Id. at 72, 155 Cal.Rptr. 29. The California Court of Appeals disagreed and affirmed. The court's holding is contained in the following passage:

[The defendant's] reckless disregard for the truth was apparent from her knowledge of the truth of what transpired at the encounter, and the literary portrayals of that encounter[.] Since she attended sessions, there can be no suggestion that she did not know the true facts. Since 'actual malice' concentrates solely on defendants' attitude toward the truth or falsity of the material published,

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and not on malicious motives, certainly the defendant ... was in a position to know the truth or falsity of her own material, and the jury was entitled to find that her publication was in reckless disregard of that truth or with actual knowledge of falsity.

Id. at 72-73, 155 Cal.Rptr. 29 (citations omitted) (footnotes omitted). 1

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...

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