895 F.2d 1535 (9th Cir. 1989)
Jeffrey M. Masson served as Projects Director of the Sigmund Freud Archives until his termination.1
In 1983, Janet Malcolm published a two-part article in The New Yorker magazine detailing the circumstances of Masson's departure from the Archives and his disputes with board members including Dr. Kurt Eissler and Dr. Anna Freud.2 The article drew primarily from tape-recorded interviews Malcolm conducted with Masson and was subsequently published in book form by Alfred A. Knopf, Inc.3
Masson claimed that several quotations attributed to him in the article did not appear on the tape recordings of his conversations with Malcolm.4 Among the challenged passages were statements that he changed his middle name because it sounded better, that he was viewed as an intellectual gigolo, that Freud's theory was the product of moral cowardice, that Anna Freud's house would have been a place of sex, women, fun, and that he would be considered the greatest analyst who ever lived after Freud.5
On November 29, 1984, Masson filed a diversity action in the United States District Court for the Northern District of California against Malcolm, The New Yorker Magazine, Inc., and Knopf.6 He alleged that the defendants had libeled him and placed him in a false light by fabricating quotations and by misleadingly editing his statements to portray him as unscholarly, irresponsible, vain, and lacking in honesty and moral integrity.7 Masson further alleged that The New Yorker and Knopf knew of Malcolm's misconduct prior to publication.8
The district court granted the defendants' motions for summary judgment on the ground that Masson had failed to establish actual malice by clear and convincing evidence.9 Masson appealed the district court's order to the United States Court of Appeals for the Ninth Circuit, which heard argument on June 16, 1988, and issued its decision on August 4, 1989.10
Whether the district court properly granted summary judgment to the defendants on the ground that Masson failed to present clear and convincing evidence of actual malice?11
In a libel action brought by a public figure, summary judgment is appropriate when the record could not support a reasonable jury finding that the plaintiff has shown actual malice by clear and convincing evidence, as required by Anderson v. Liberty Lobby.12 Actual malice exists only where the defendant published a statement with knowledge that it was false or with reckless disregard of whether it was false.13 When a journalist attributes statements to a public figure using quotation marks, actual malice cannot be inferred from evidence that the quoted language does not match the speaker's exact words if the attributed language constitutes a rational interpretation of ambiguous remarks or does not alter the substantive content of unambiguous remarks actually made.14
Yes. The district court properly granted summary judgment because the facts establish that Masson, a public figure, presented no clear and convincing evidence that Malcolm acted with actual malice. The challenged quotations were either rational interpretations of Masson's taped comments or did not alter the substantive meaning of his actual statements. The facts further show that Masson filed suit alleging fabrication and misleading editing but offered no evidence that Malcolm entertained serious doubts about the truth of the passages.
The district court properly granted summary judgment to the defendants.15
Related opinions on this issue
Judge Kozinski dissented from the majority's conclusion that the publishers could not be held liable.16 He maintained that the evidence of Malcolm's alterations raised a triable issue of malice.17 The presence of tape recordings should have prompted verification by the publishers.18
Judge Kozinski argued that when a writer uses quotation marks in reporting what someone else has said, she is representing that those are the speaker's own words or something very close to them.19 The majority views quotations much more amorphously as an extrapolation of the speaker's words.20 Under the majority's approach the resulting quotation may differ significantly in wording and content from what the speaker actually uttered.21
Readers give far greater weight to direct quotations than to descriptions or paraphrases by the author.22 The changes alleged would make Masson appear more arrogant and dishonest than his taped statements warranted.23 The presence of tape recordings and communications with fact-checkers created a genuine issue of material fact on the malice question.24
Therefore summary judgment was inappropriate.25
Whether evidence that quotations attributed to Masson were fabricated or altered could support a finding of actual malice?26
Evidence that a journalist fabricated or altered quotations attributed to a public figure may support a finding of actual malice only if the attributed language is wholly invented or materially changes the meaning of the speaker's actual words.27 Where the attributed language is a rational interpretation of ambiguous remarks or does not alter the substantive content of the speaker's statements, such evidence is insufficient to establish actual malice by clear and convincing evidence.28
No. Evidence that quotations attributed to Masson were fabricated or altered could not support a finding of actual malice.29 The facts show that the disputed passages were rational interpretations of Masson's taped remarks or preserved their substantive content. The facts describe specific challenged quotations such as the intellectual gigolo statement and the sex women fun statement. These were consistent with the substance of Masson's recorded comments about his relationships with Eissler and Anna Freud and his vision for the Freud house.
The facts therefore provide no basis for a jury to find that Malcolm knew the quotations were false or acted with reckless disregard.
Evidence that quotations attributed to Masson were fabricated or altered could not support a finding of actual malice.
Related opinions on this issue
Judge Kozinski would have held that the evidence of fabrication and alteration could support a finding of actual malice.30 He explained that the changes described in the facts were not mere rational interpretations but deliberate distortions that made Masson appear more arrogant and dishonest than his actual taped statements indicated.31 Readers give far greater weight to direct quotations.
The presence of tapes and fact-checker communications created a genuine issue of material fact on the malice question.32 The majority's approach allows journalists to invent quotations so long as they can argue with a straight face that the result is a rational interpretation.33 This practice is roundly denounced by most journalists and is not protected by the First Amendment.34
Whether The New Yorker and Knopf could be held vicariously liable for any libel committed by Malcolm?35
A publisher or book company may be held vicariously liable for libel committed by an author only if the author acted with actual malice.36 Where the record establishes that the author did not act with actual malice, the publisher and book company cannot be held liable for publishing the allegedly defamatory material.37
No. The New Yorker and Knopf could not be held vicariously liable for any libel committed by Malcolm.3839 The facts demonstrate that Malcolm did not act with actual malice.40 The facts recount that Masson alleged the publishers knew of Malcolm's misconduct.41 Yet the same facts show that the quotations at issue were either rational interpretations or preserved substantive meaning.42
This precludes a finding of malice by Malcolm.43 Without malice by the author the facts provide no basis for imposing liability on the publishers.44
The New Yorker and Knopf could not be held vicariously liable for any libel committed by Malcolm.
Related opinions on this issue
Judge Kozinski dissented from the majority's conclusion that the publishers could not be held liable. He maintained that the evidence of Malcolm's alterations raised a triable issue of malice. The presence of tape recordings should have prompted verification by the publishers.
Judge Kozinski argued that when a writer uses quotation marks in reporting what someone else has said, she is representing that those are the speaker's own words or something very close to them. The majority views quotations much more amorphously as an extrapolation of the speaker's words. Under the majority's approach the resulting quotation may differ significantly in wording and content from what the speaker actually uttered.
Readers give far greater weight to direct quotations than to descriptions or paraphrases by the author. The changes alleged would make Masson appear more arrogant and dishonest than his taped statements warranted. The presence of tape recordings and communications with fact-checkers created a genuine issue of material fact on the malice question.
Therefore summary judgment was inappropriate.
Whether the district court erred in denying the defendants' requests for attorneys' fees and costs under Rule 11 and California law?45
A district court does not err in denying a request for attorneys' fees and costs under Rule 11 or California Code of Civil Procedure section 1021.7 when the plaintiff's claims, though ultimately unsuccessful, rested on a plausible good-faith argument concerning an unsettled question of law at the time the complaint was filed.46
No. The district court did not err in denying the defendants' requests for attorneys' fees and costs.4748 The facts show that Masson advanced a plausible good-faith argument that actual malice could be inferred from evidence of fabricated quotations.49 The facts establish that the law in the Ninth Circuit and California was unclear on whether actual malice could be inferred solely from proof that an author ascribed words to a public figure that the figure did not speak.50 Masson's complaint was therefore well grounded in a colorable legal theory even though summary judgment was ultimately granted.51
The district court did not err in denying the defendants' requests for attorneys' fees and costs.