How Being Careful Can Hurt You In Court   

Fact-checking plays a key role in a celebrated suit against the New Yorker.

The reasoning used by judges in libel decisions is sometimes truly wondrous to behold. A current example: A celebrated libel case being readied for trial will proceed on a court's astonishing conclusion that the use of a fact-checker may cause more, not less, legal trouble for a publication.

Fact-checking – the simple act of trying to get it right – is a customary practice at many magazines that has been elevated to a virtual art form by the New Yorker. But it is the New Yorker itself that is now at risk because of its fact-checking. At last, a highly-publicized suit over the allegedly phony quotations in a two-part series in the magazine nine years ago is headed for trial in May in a federal court in San Francisco.

The case, discussed in this column in March and September 1991, is based on a claim by psychoanalyst Jeffrey Masson that writer Janet Malcolm fabricated a series of quotes that made him look bad. (The series later was published as a book by Alfred A. Knopf, but the publisher is off the hook after the latest federal appeals court ruling.)

Five of the six contested quotations were found by the U.S. Supreme Court to have varied enough from statements that Masson insists he made that a jury could reach a verdict against Malcolm. That left it to the court of appeals in San Francisco to rule on the legal fate of the New Yorker. Clearing the way for a jury to hear Masson's libel claim against the magazine, the appeals court decided in April that fact-checking created enough doubts about the accuracy of the quotations that the magazine and Malcolm may have been legally responsible for any harm done to Masson.

The court of appeals, in an opinion by Judge Alex Kozinski, made it clear that the magazine had no legal duty to do fact-checking in the first place – or, indeed, to make any investigation of the accuracy of quotes in the Malcolm stories. A publication cannot be held liable for defaming someone merely because it did not investigate, the judge noted.

But, he went on, if a magazine makes such an effort, and the process raises doubts about accuracy, legal woe may be the price of failing to dispel those doubts. Perhaps appreciating the irony of turning a careful editing technique into a potential liability, Kozinski wrote in a footnote:

"We are aware that this puts publishers like the New Yorker – whose practice it is to investigate the accuracy of its stories – at somewhat of a disadvantage compared to other publishers such as newspapers and supermarket tabloids that cannot or will not engage in thorough fact-checking. After all, publications that check their stories for accuracy are more likely to develop 'obvious reasons to doubt' than ones that do not." But, the judge said, that is what the law requires, and "it makes considerable sense" because readers "are far more likely to trust the verbatim accuracy" of stories in magazines such as the New Yorker.

The appeals court opinion said that when the magazine fact-checker talked to Masson, the central figure in the stories, he objected to some of the quotes and was assured his problems with them would be resolved.

"Masson's objection," the court said, "was raised during a fact-checking process initiated by the New Yorker as part of its policy of maintaining the accuracy of its stories. A jury could reasonably conclude that claims of inaccuracy raised in that context would be taken seriously." The conversation with the source, it concluded, might well have stirred doubts about whether the quotes were accurate – or so a jury could find.

That ruling, aside from putting a legal price on fact-checking as an editorial option, also means trouble of a different sort for publications defending against libel suits. The jury gets to second-guess editorial decisions made after a source raises objections to a fact-checker to decide whether or not the proper corrections were made.

This will not be a simple process of putting the source's claimed words down on one side and the quotes as they appeared in the publication on the other to see if they match. The process will also let jurors go deeply into the meanings intended, to determine whether those are accurately reflected in the story. The Supreme Court let that genie out of the bottle in its ruling in this case last year when it said that "an exact quotation out of context can distort meaning, although the speaker did use each reported word." Libel, the court suggested, is as much a matter of interpretation as it is of actual words.

To protect itself in the jury room, magazines may have to give fact-checkers more responsibility in negotiating with sources over how they are to be quoted. The commitments made or not made in fact-checkers' conversations will take on special legal significance.

Of course, publications might maintain more control by letting writers and editors do the fact-checking themselves. That could elevate the craft of fact-checking to a quite lofty – and expensive – level, but it very likely would complicate and slow down the editorial process, too.

Once more, the implication is obvious: Legal logic sometimes has little to do with what actually goes on in the newsroom. l