Masson v. New Yorker Magazine, Inc.

Citation832 F. Supp. 1350
Decision Date09 September 1993
Docket NumberNo. C-84-7548 EFL.,C-84-7548 EFL.
PartiesJeffrey M. MASSON, Plaintiff, v. The NEW YORKER MAGAZINE, INC. and Janet Malcolm,. Defendants.
CourtU.S. District Court — Northern District of California




Charles O. Morgan, Jr., Paul Kleven, San Francisco, CA, for plaintiff.

James M. Wagstaffe, Cooper, White & Cooper, San Francisco, CA, Gary L. Bostwick, Santa Monica, CA, for defendants.


LYNCH, District Judge.

I. Introduction

The facts regarding defendant Janet Malcolm's extensive interviews of plaintiff Jeffrey Masson as a subject of a lengthy profile, defendant New Yorker's publication of the profile in a two-part series, and plaintiff's contention that the article defamed him by falsely quoting him have been fully set forth by this Court and the other courts which have considered this action. See Masson v. New Yorker Magazine, Inc., 686 F.Supp. 1396 (N.D.Cal.1987); Masson v. New Yorker Magazine, Inc., 895 F.2d 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 necessary.

Trial was set in this matter on five quotations1 which plaintiff alleged were false and defamatory to him. After a three-week jury trial and three days of jury deliberation, the jury answered eight of nine special verdict questions. The jury found that all five quotations were false, Special Verdict Questions 1, and all five were defamatory, Special Verdict Questions 2. In considering the case against Janet Malcolm, the jury found that she was aware that the "sex, women, fun" and "wrong man" quotations defamed plaintiff, Special Verdict Question 3, and that Malcolm acted with knowledge of falsity or reckless disregard as to the falsity of those two quotations. Special Verdict Question 4. The jury also found that those two quotations damaged plaintiff, Special Verdict Question 8. However, the jury was unable to reach a unanimous decision on the amount of damages. Special Verdict Question 9. As to the New Yorker, the jury found that Malcolm was an independent contractor rather than an employee, so that her acts were not imputed to the New Yorker. Special Verdict Question 5. The jury also found that the New Yorker was aware of the defamatory meaning of the "sex, women, fun" quotation, Special Verdict Question 6. However, it found that the New Yorker did not act with knowledge that quotation was false or with reckless disregard as to the falsity of that quotation. Special Verdict Question 7.

The Court is now faced with a number of post-trial motions. These motions include the New Yorker's Motion To Enforce Jury Findings And For Entry Of Judgment; Masson's Motion For Partial New Trial Or, In The Alternative, For New Trial; Malcolm's Motion For Re-Trial On All Issues As To Her; Malcolm's Motion For New Trial On The Grounds That The Verdict Is Against The Weight Of The Evidence; Malcolm's Motion For New Trial On The Grounds Of Erroneously Excluded Evidence; Malcolm's Motion For New Trial On The Grounds Of Inconsistent Verdicts; Malcolm's Motion For New Trial On The Grounds Of Erroneous Jury Instructions; Malcolm's Motion In The Alternative Regarding The "Wrong Man" Quote; and Masson's Motion To Strike Juror Declarations. A hearing on these motions was held on August 3, 1993, with all parties represented by counsel. The Court requested additional briefing from the New Yorker and from plaintiff, and those briefs have been filed with the Court.

Although the Court is presented with nine separate motions, several issues are overlapping and dispositive, and there is no need to address each of these motions or all of the issues presented by them.

In resolving the issues before it, the Court will first conduct an independent review of the evidence against the New Yorker to the extent that such a review is necessary. The Court will next consider whether it erred in instructing the jury that Masson had to prove that both defendants were aware of the defamatory meaning of the five quotations at issue here by a preponderance of the evidence. Third, the Court will determine the merits of plaintiff's arguments regarding defendant Malcolm's employment status. Fourth, the Court must decide whether to enforce any of the jury's actions with respect to the New Yorker and whether it should enter judgment in favor of the New Yorker. Finally, the Court must determine the scope of the new trial necessitated by the jury's failure to reach a unanimous determination on the issue of damages.

II. Discussion
A. Independent Review

In defamation cases involving public figure plaintiffs and media defendants, the Court is required to independently review the evidence to ensure that the judgment "does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Bose Corp. v. Consumers Union of United States Inc., 466 U.S. 485, 511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984). In Bose v. Consumers Union, the Supreme Court held that "judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of `actual malice.'" Id. at 511, 104 S.Ct. at 1965. This duty appears to apply to trial courts reviewing post-trial motions. Tavoulareas v. Piro, 817 F.2d 762, 776-77 (D.C.Cir.1987). In considering the scope of review, the Ninth Circuit has held that a reviewing court is required to conduct a highly deferential review of credibility determinations, and a less deferential review of the factfinder's evaluation of other evidence. Newton v. National Broadcasting Co., 930 F.2d 662, 672 (9th Cir.1990), cert. denied, ___ U.S. ___, 112 S.Ct. 192, 116 L.Ed.2d 152 (1991).2

In the absence of a finding of liability, the policy reasons for an independent review would appear to carry less force. However, in an abundance of caution, the Court will review the evidence presented against the New Yorker3 regarding knowledge of falsity or reckless disregard of falsity. The Court's review will be limited to four of the five quotations: "sex, women, fun," "intellectual gigolo," "greatest analyst," and "I don't know why I put it in." The parties agreed that the "wrong man" quotation was never brought to the New Yorker's attention because the challenged editing occurred before the manuscript was submitted to the magazine. The parties thus stipulated that the New Yorker was not liable for that quotation.

In conducting this review, it is necessary for the Court to first look to the Ninth Circuit's rationale in remanding the case against the New Yorker to this Court. The Court will then look at the evidence presented at trial. It will next analyze the jury's answers to special interrogatory questions. Finally, the Court will independently analyze the evidence presented.

1. Ninth Circuit Remand

After the Supreme Court's decision in this case, Masson v. New Yorker, ___ U.S. ___, 111 S.Ct. 2419, the Ninth Circuit ordered the case to proceed against the New Yorker on remand in Masson v. New Yorker, 960 F.2d 896. In reviewing the evidence presented at the summary judgment stage and construing the facts as alleged by plaintiff in the light most favorable to him, Masson v. New Yorker, ___ U.S. at ___-___, 111 S.Ct. at 2434-35, the Ninth Circuit held that a reasonable jury could find in his favor if his version of events were proved at trial.

The court of appeal found that there were several possible scenarios which, if proved, would support a finding for plaintiff. First, the court supposed that events preceding the publication of the article may have made the New Yorker aware of falsity or may have given it obvious reasons to doubt the veracity of Malcolm's reporting. The court focused in particular on the fact-checking conversation between plaintiff and the New Yorker's fact-checker, construing the facts most favorable to plaintiff and extrapolating from his version of events. Second, the court supposed that information about the editing of the "sex, women, fun" quotation could have given the New Yorker pause about that quotation and the article as a whole. The Ninth Circuit did not refer to any evidence directly related to the "intellectual gigolo" quotation, the "I don't know why I put it in" quotation, or the "greatest analyst who ever lived" quotation.

a. Fact-Checking Incident

The Ninth Circuit put great weight on the fact-checking "incident". The evidence presented at the summary judgment phase showed that a fact-checker for the New Yorker named Nancy Franklin telephoned plaintiff to check various facts in the article, some of which were contained in plaintiff's quotations. Plaintiff alleged that during a short conversation, he pointed out a number of inaccuracies in several quotations.4 He contended that this upset him and gave him concern about the accuracy of the piece, and that he expressed these feelings to Franklin. He further alleged that he asked Franklin to speak with Malcolm about the accuracy of the quotations, and asked for permission to review his quotations. Plaintiff alleges that Franklin assured him that all quotations would be verbatim and accurate, and that she brushed him off with promises to speak to Malcolm and to get back to him regarding a review of his quotations.

Additional evidence introduced at the summary judgment phase related to the fact-checking process showed that several of the inaccuracies pointed out by plaintiff were corrected on a set of galleys. For instance, a notation was made changing "she is a Pole" to "she is a Polish Jew." However, this change was not ultimately included in the published article.

The Ninth...

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