Masson Ruling Sets Up Jury As Editor   

The focus is on "meaning" of words in quotes as key to truth.

The more the press comes to realize that the current legal environment is unfriendly to it, the more it seeks to comfort itself with the belief that, if it does not lose everything in a big lawsuit, it can claim victory. That is what was done in many newsrooms (and in the offices of many press lawyers) after the Supreme Court decided the case of Masson v. New Yorker Magazine, Inc .

That ruling was the first the Court had ever issued on the legal risks the press faces if it fabricates quotes. A collective sigh of enormous relief went up across the journalistic landscape because the decision had not come out nearly as badly as had been feared.

Of course, anyone who has spent any time around lawyers will recognize that response instantly, because few things hurt a lawyer as much as having to admit a loss, even a partial loss. Ordinarily, when the press's critical faculties are working properly, it can see through that sort of thing. This time, however, its perception was clouded by its relief.

Because the Supreme Court does not do many constitutional favors for the press these days, journalists seem more than eager to interpret the absence of devastating defeat as a significant victory. With the decision in the Masson case, however, that response was not realistic. It is quite likely that this will turn out to be a costly ruling for the press, bedeviling it for years to come.

The Masson case (discussed in this space in March) involves a libel lawsuit by a psychoanalyst, Jeffrey Masson, against writer Janet Malcolm, The New Yorker and book publisher Alfred A. Knopf Inc., claiming that Malcolm made up some quotes in which Masson was quite critical of himself. The result, the lawsuit claimed, was that those false quotes defamed his reputation.

The Supreme Court ruled that five of six disputed quotations varied enough from things that Masson actually had said to Malcolm that a jury could find them to be false and, possibly, libelous. (That part of the decision applies at least to Malcolm, and may also apply, after another round in lower courts, to the magazine and book publisher, too.)

Those members of the press who thought that the decision was acceptable seemed to be most content with the constitutional standard spelled out by the Court. The First Amendment, according to the decision, protects the press from libel complaints when the media deliberately alter the words actually spoken by a "public official" or "public figure," unless that alteration "results in a material change in the meaning conveyed by the statement."

By a 7-2 vote, the Court rejected the suggestion that any deliberate change of the words used would be subject to challenge unless the alteration had been done solely to correct grammar or syntax. That, apparently, was the suggestion the press had feared the Court would embrace.

On closer examination the constitutional rule that did emerge shows its potential for serious mischief in future libel cases involving claims of manufactured quotes. That's because the new rule focuses upon the "meaning" of words as the key to truth or falsity in quotes. "Meaning is the life of language," said the Court. "Quotations may be a devastating instrument for conveying false meaning." Moreover, the Court remarked ominously, "an exact quotation out of context can distort meaning, although the speaker did use each reported word."

Thus, when a libel case based on allegedly false quotes goes to court in the future, it will be up to a jury to examine the quotes and decide, as an issue of fact, whether the gap is too wide between the "meaning conveyed" by the words spoken and those that were actually published.

Juries will be sent into broad excursions over the definition of words, the context in which words are spoken, the selection of some but not all words in a given context, the editorial methodology of revising what the source said and the different meanings that might emerge from the quotes as published.

To prepare the jury for this task, lawyers for public figures who sue may be expected to put the source on the stand to say such things as: "I didn't say it exactly that way," "That is not what I meant when I used those words," "What I meant was distorted by taking it out of context," "I may have said it that way once, but I clarified it later," "The only way to reflect what I really meant was to print everything I said on the subject."

And, in turn, lawyers who represent the press are likely to put reporters or editors on to say such things as: "I thought that is what the source meant," "I did my best to stay as close as I could to the actual words spoken," "I didn't have enough room to quote everything," "I only used quotes that I thought told the story accurately."

It will be, in short, a verbal joust over intended and unintended meanings, and over out-of-context versus in-context quotes.

The result is clear: The jury will be doing the job of editor. l