Masson v. New Yorker Magazine, Inc., s. 87-2665
| Decision Date | 06 April 1992 |
| Docket Number | 87-2700,Nos. 87-2665,s. 87-2665 |
| Parties | 20 Media L. Rep. 1009 Jeffrey M. MASSON, Plaintiff-Appellant, v. The NEW YORKER MAGAZINE, INC., Alfred A. Knopf Inc., Janet Malcolm, Defendants-Appellees. Jeffrey M. MASSON, Plaintiff-Appellee, v. The NEW YORKER MAGAZINE, INC., Alfred A. Knopf Inc., Janet Malcolm, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles O. Morgan, Jr., Paul Kleven, Law Offices of Charles O. Morgan, Jr., San Francisco, Cal., for plaintiff-appellant Jeffrey M. Masson.
Charles W. Kenady, Karl Olson, Cooper, White & Cooper, San Francisco, Cal., for defendant-appellee The New Yorker Magazine, Inc.
Neil L. Shapiro, Michelle D. Kahn, Stephen M. Knaster, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant-appellee Alfred A. Knopf, Inc.
Gary L. Bostwick, Lee B. Ackerman, Bostwick & Ackerman, Santa Monica, Cal., for defendant-appellee Janet Malcolm.
Robert G. Sugarman, R. Bruce Rich, Linda Steinman, Ronald Klempner, Weil, Gotshal & Manges, New York City, for amici curiae Ass'n of American Publishers, Inc. and Magazine Publishers of America, Inc.
On Remand from the Supreme Court of the United States.
Before: ALARCON, HALL and KOZINSKI, Circuit Judges.
Jeffrey Masson's odyssey through the federal courts continues. On remand from the Supreme Court, --- U.S. ----, 111 S.Ct. 2419, 2437, 115 L.Ed.2d 447 (1991), we consider what responsibility, if any, publishers have to purge defamatory material from stories submitted to them by free-lance writers.
Masson was the subject of a not altogether flattering article written by Janet Malcolm, published by The New Yorker Magazine and republished in book form by Alfred A. Knopf. Masson alleges that the article libels him by attributing to him statements he did not make. He concedes he's a public figure for purposes of this litigation, and so must meet the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). To avoid summary judgment under this standard, Masson was required to show that a reasonable jury could find by clear and convincing evidence that defendants published the statements with knowledge of their falsity or reckless disregard as to whether or not they were true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); see also Sullivan, 376 U.S. at 279-80, 285-86, 84 S.Ct. at 725-26, 728-29.
The Supreme Court held that, when applied to altered quotations, falsity means "a material change in the meaning conveyed by the statement." 111 S.Ct. at 2433. On this record, the Supreme Court held that five of the "quotations" of which Masson complains could meet this standard and thus are actionable. Id. at 2435-37. 1 We must consider two questions: First, whether Masson's case nevertheless fails against all defendants as a matter of state law under the so-called incremental harm doctrine; second, whether Masson has presented sufficient evidence against The New Yorker and Knopf to establish that each of them acted with actual malice (the Supreme Court having resolved this issue as to Malcolm). 2
As the Second Circuit has explained it, the incremental harm doctrine measures the harm Herbert v. Lando, 781 F.2d 298, 311 (2d Cir.), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986). The defendants assert that the unchallenged or verifiably accurate statements attributed to Masson paint him in such a bad light that any damage caused by Malcolm's allegedly creative quotations is not actionable as a matter of law. Cf. Richard N. Winfield, Altered Quotes and Incremental Harm, N.Y.St.Bar J. 16, 18 (Jan.1992) ().
In our earlier opinion we applied the incremental harm doctrine to one of the challenged quotations. See Masson v. New Yorker Magazine, Inc., 895 F.2d 1535, 1541 (9th Cir.1989) (). We did not, however, specify the source of the doctrine. Herbert noted that the theory was "novel," and that it was first applied in Simmons. 781 F.2d at 310. Simmons, in turn, seemed to ground the doctrine in the First Amendment. 516 F.Supp. at 750-51. The Supreme Court, however, disowned this constitutional pedigree when it "reject[ed] any suggestion that the incremental harm doctrine is compelled as a matter of First Amendment protection for speech." Masson, 111 S.Ct. at 2436. We must nevertheless consider whether it has an independent existence as a matter of state law.
The California courts have shown no interest in the incremental harm doctrine. In fact, we have found only a single reference to the doctrine in the reported California cases: In Weller v. American Broadcasting Cos., 232 Cal.App.3d 991, 1010, 283 Cal.Rptr. 644 (1991), defendant claimed the trial court erred in not instructing the jury on the incremental harm doctrine; because no incremental harm instruction had been offered, however, the court declined to address the issue. The parties have pointed us to no cases indicating that the California Supreme Court would be likely to adopt the doctrine, and we have found none.
In language we cannot improve upon, then-Judge Scalia expressed the fundamental flaw in the incremental harm doctrine:
[T]he theory must be rejected because it rests upon the assumption that one's reputation is a monolith, which stands or falls in its entirety. The law, however, proceeds upon the optimistic premise that there is a little bit of good in all of us--or perhaps upon the pessimistic assumption that no matter how bad someone is, he can always be worse.... ("He was a liar and a thief, but for all that he was a good family man.")
Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 (D.C.Cir.1984), vacated on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cf. Wall St.J. A16 (Feb. 21, 1992) (). Judge Scalia concluded that the incremental harm doctrine is simply a "bad idea." Liberty Lobby, 746 F.2d at 1569.
Because it is not required by the First Amendment, because the Supreme Court has severely undermined the case authority that generated the doctrine in the first place, because the California courts have never adopted it and because we believe the California Supreme Court would agree with Judge Scalia that it is a "bad idea," we conclude that the incremental harm doctrine is not an element of California libel law.
"[W]e must assume, except where otherwise evidenced by the transcripts of the tape recordings, that [Masson] is correct in denying that he made the statements attributed to him by Malcolm, and that Malcolm reported with knowledge or reckless disregard of the differences between what [Masson] said and what was quoted." 111 S.Ct. at 2435. Furthermore, "[t]he record contains substantial additional evidence ... which, in a light most favorable to [Masson], would support a jury determination under a clear and convincing standard that Malcolm deliberately or recklessly altered the quotations." Id. The law of the case then is that the evidence presented by Masson in opposition to summary judgment would support a jury verdict in his favor against Malcolm. 3
The Supreme Court has instructed us to determine whether "the District Court erred in granting summary judgment to The New Yorker Magazine, Inc., and Alfred A. Knopf, Inc. on the basis of their respective relations with Malcolm or the lack of any independent actual malice." 111 S.Ct. at 2437. In making this determination we are guided by Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989):
If a false and defamatory statement is published with knowledge of falsity or a reckless disregard for the truth, the public figure may prevail. A "reckless disregard" for the truth, however, requires more than a departure from reasonably prudent conduct. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. The standard is a subjective one--there must be sufficient evidence to permit the conclusion that the defendant actually had a high degree of awareness of probable falsity. As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. In a case such as this involving the reporting of a third party's allegations, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.
Id. at 688, 109 S.Ct. at 2696 ().
To overcome summary judgment (or sustain a jury verdict), therefore, a public official or public figure must establish by clear and convincing evidence that the publisher of an allegedly defamatory book or article "in fact entertained serious doubts as to the truth of his publication." A plaintiff may do this in two ways. First, he can establish the publisher's state of mind by evidence that the publisher "actually had a high degree of awareness of probable falsity." Second, a plaintiff may show that the circumstances surrounding publication gave the publisher "obvious reasons to doubt the veracity of the [author] or the accuracy...
To continue reading
Request your trial
-
Green v. Cosby, Civil Action No. 14–30211–MGM
...If that harm is determined to be nominal or nonexistent, the statements are dismissed as not actionable.’ " Masson v. New Yorker Magazine, Inc. , 960 F.2d 896, 898 (9th Cir.1992) (quoting Herbert v. Lando , 781 F.2d 298, 311 (2d Cir.1986) ); see also Tel. Publ'g Co. , 929 A.2d at 1002–03.20......
-
Masson v. New Yorker Magazine, Inc.
...1535 (9th Cir.1989); Masson v. New Yorker Magazine, Inc., ___ U.S. ___, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), Masson v. New Yorker Magazine, Inc., 960 F.2d 896 (9th Cir.1992). These facts will be repeated here only as Trial was set in this matter on five quotations1 which plaintiff allege......
-
Biro v. Condé Nast, of Advance Magazine Publishers Inc.
...298, 298, 867 N.Y.S.2d 405 (1st Dep't 2008), whether it would have been “prudent” to verify an article, Masson v. New Yorker Magazine, Inc., 960 F.2d 896, 902–03 (9th Cir.1992), or whether there was an “obligation to ensure” that the article was correct, Rivera v. NYP Holdings, Inc., 16 Mis......
-
Dongguk Univ. v. Yale Univ.
...that might plant such doubt[,] [o]nce doubt exists, ... the publisher must act reasonably in dispelling it.” Masson v. New Yorker Magazine, Inc., 960 F.2d 896, 901 (9th Cir.1992). Thus, when there is evidence that the defendant acted with a “high degree of awareness of [a statement's] proba......