"He Said," She Said

By WILLIAM A. HENRY III

No matter the official outcome, in most libel suits everyone loses. The aggrieved plaintiff seeking to restore his reputation winds up giving far wider, more enduring publicity to the very allegations he wants to suppress. The accused journalist may win in court -- for First Amendment reasons, the rules are tilted in favor of the press -- but is less than certain of being vindicated. Often, a story that provokes a suit is legally defensible yet morally tainted by bias, animus or procedural lapses; the trial turns into a lesson in press ethics, with the reporter as the flustered pupil.

Few libel cases have dragged on longer or sullied both sides more than the suit by Freudian psychoanalyst Jeffrey Masson against Janet Malcolm of the New Yorker, who pilloried him in a 1983 profile, that was finally brought before a jury last week. Masson, a scholar of Sanskrit who holds a Ph.D. from Harvard, contends that since the article was published he has been all but unemployable. No longer a therapist, he has written books including the critically acclaimed memoir My Father's Guru and recently taught media ethics at the University of Michigan, where he has been living in the home of his fiance, controversial feminist law professor Catharine MacKinnon. Malcolm continues under contract to the New Yorker, where her editor was her husband Gardner Botsford. She conceded on the witness stand that her techniques have "freaked out" colleagues -- not to mention most other practitioners of her craft.

Even if Masson prevails, enough of what Malcolm said about him has been validated to brand him forever as a reckless egomaniac, philanderer and self- promoter who dared to impugn the integrity of Freud, the demigod of his former field. If Malcolm wins, it will be despite her readiness to alter facts in service of her vision of truth. She admitted cleaning up and clarifying Masson's prose, which is common journalistic practice. She also combined remarks made months apart, in different circumstances and on different coasts, into a single monologue -- which is not common practice at all. She felt entitled, she testified, because "translation" is needed to render spoken language readable: "You can do it if you don't change the meaning." Masson claims that on occasion Malcolm went way beyond translation, substituting colorfully phrased inferences for his actual words and putting them between quotation marks nonetheless.

Masson's troubles began well before Malcolm's scathing portrait. After a meteoric rise in psychoanalytic circles, he was sacked from his heir apparency at the Freud Archives in 1981 for disparaging the private behavior of the founder of psychoanalysis and for attempting to debunk some of the master's key thinking on the prevalence and significance of child abuse -- an act of iconoclasm that Malcolm aptly termed self-destructive. Masson sued the Archives for $13 million and accepted a settlement of $150,000. Then he made another decision that in retrospect seems even more self-destructive: he agreed to cooperate with Malcolm, a defender of traditional Freudian analysis and thus an ideological opposite. When he read the resulting piece, Masson said, "I realized I had been totally betrayed." Malcolm retorts that he betrayed himself.

Both of them may be right. Although Masson describes Malcolm's portrayal of him as "a lie from start to finish," the items at issue are five short passages from a 48,500-word profile. Had they been printed as paraphrases, there would almost certainly be no trial: during 40 hours of tape-recorded interviews, Masson said sufficiently similar things that the disputed words could be deemed a reasonable interpretation of his views.

Reporting about another battle between a writer and an irate subject, Malcolm opined that every journalist was a "confidence man," tricking subjects into a sense of intimacy to extract secrets. She added, in what many in the news business saw as an unwitting confession, "Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible." Whether or not she scammed Masson, Malcolm certainly got closer than many reporters consider proper: she listened without objection to sexual overtures, joined him for a walk on a beach, invited him and a girlfriend to stay with her and her husband as houseguests. Such fraternization is frowned on because it can make a reporter too indulgent. But socializing can also lull an interviewee into letting down his guard because he thinks of the talks as private, not adversarial.

Usually Malcolm recorded conversations with Masson; sometimes she didn't. In some cases she didn't even retain notes, just summaries typed later. That does not prove Masson right. As Malcolm's attorney, Gary Bostwick, brought out last week, Masson previously denied saying other things that turned up on the tapes. The disputed passages are a little sexier than the rest of the article, more egocentric and extreme. Malcolm continues to insist that they are what Masson said. He insists they are not. Says First Amendment attorney Floyd Abrams: "This is not a case about a mistake. Someone is lying."

Even if jurors decide that Malcolm warped or made up her quotes, however, Masson faces an arduous struggle. As a public figure, he must demonstrate that the remarks were false and that Malcolm either knew them to be false or went ahead without caring whether they were true. He must also prove the fabrications were materially damaging, which may be harder. Given his history at the Freud Archives and the intemperate things he unquestionably said when the tape recorder was on, how effectively can Masson attribute his bumpy career path to a few quotes that may have been distorted when the tape recorder was off?

As public melodrama, the clash fits old-time producer Sam Harris' definition of bad theater: there is no one to root for. Its legal significance is whatever precedent it may set about how accurate words must be that are placed inside quotation marks. Such punctuation, all parties agree, makes a special claim to be objective, unfiltered fact. During pretrial maneuvering, federal appellate judges ruled that journalists have a free-press right to tamper willfully with quotes. The U.S. Supreme Court disagreed. In an opinion by Justice Anthony Kennedy, it held that changing quotes might not in itself prove legal malice but was "inconsistent with responsible journalism."

Like many a talented nonfiction writer, Malcolm has come to think of herself as an artist. Her narratives proclaim her a storyteller, not just a fact gatherer. Without that gift and some measure of literary license -- with only a daily newspaper's flat objectivity -- a 48,500-word profile would be unbearable. Perhaps she could make a case for broadening the boundaries of "responsible journalism." She has not. Her defense is that her quotations are literal. They ought to be. Writers use the quoted word because it has a special piquancy -- the sacred appeal of being, in an often shadowy world, sharply and unarguably true.

With reporting by Kathryn Jackson Fallon/New York and David S. Jackson/San Francisco