Amicus Curiae Brief — Masson v. New Yorker Magazine, Inc.

Petitioner,

THE New YORKER MAGAZINE, INC., :

. ALFRED A. KNOPF, INC., and JANET MALCOLM, ,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

CO! ° OF APPEALS FOR THE NINTH CIRCUIT

ROBERT G. SUGARMAN*

R. BRUCE RICH

LINDA STEINMAN

RONALD KLEMPNER

WEIL, GOTSHAL & MANGES

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Counsel for Amici Curiae

*Counsel of Record

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES .................-..--. ii

NN tht ATE TO ,

SE SE ae 2

INTEREST OF THE AMICI AND SUMMARY OF

Taal earners eee recap aren eetiamag 3

a 6

1. PLAINTIFF HAS NOT MET HIS BURDEN

OF SHOWING ACTUAL MALICE AS TO

THE TWO PUBLISHERS..................

Bip Tbebebseeeconsoccoccesosecosoces 6

B. The Prevailing Standards Require Subjective

Awareness of Probable Falsity .............. 7

C. No Liability May Be Imposed Upon The New

Pebadodeesedecoossesseoosesscocesecess 9

1. The Discovery Of A Few Minor Errors

During Fact-Checking Does Not Lead To

A Duty To Investigate Further, Including

Any Obligation To Verify Quotes........ 9

2. This Case Is Disposed Of By Case Law

Indicating That Quotations Do Not Have

To Be Reviewed With An Interviewee And

Is Readily Distinguishable From Harte-

Peo ecccesoceescosoocccéoooesceseecs 13

3. A Publisher Known For Accuracy Cannot

Be Held To A Higher Standard Under The

Subjective Test Of Actual Malice ........ 17

4. The Undisputed Evidence Demonstrates

That The New Yorker Is Not Vicariously

Liable For Malcolm's Actions ...........

1. Knopf Placed Justifiable Reliance On A

ated No Reason to Suspect Falsity .......

Il. A MERE DENIAL OF THE AUTHENTIC-

ITY OF A WRITER’S NOTES SHOULD

NOT BE SUFFICIENT FOR A COURT TO

Ill. THE COURT SHOULD ADOPT THE

INCREMENTAL HARM ANALYSIS AS

OUTLINED IN HERBERT v. LANDO......

CONCLUSION ... 2.6 cc ccc cece cc ence ccecceeeesees

PAGE

TABLE OF AUTHORITIES

Cases: ; PAGE

Anderson v. Liberty Lobby, 477 U.S. 242 (1986). ..6, 8, 23

Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254,

721 P.2d 87, 228 Cal.Rptr. 206 (1986), cert. denied,

en ce cccccccccessceccececee 25

Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163,

EEE re 22

Davis v. Costa-Gravas, 654 F. Supp. 653 (S.D.N.Y.

ere eee a eeeeceesecésceoescececee 14

Edwards v. National Audubon Society, Inc., 556 F.2d

113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977)...13, 21

Garrison v. Louisiana, 379 U.S. 64 (1964)........... 8, 12

Geiger v. Dell Publishing Co., 719 F.2d 515 (ist Cir.

EEE ee eee ecccccesccceece‘eccecess 20

Gertz v. Robert Weich, Inc., 418 U.S. 323 (1974).... &

Harte-Hanks Communications, Inc. v. Connaughton,

CC passim

Herbert v. Lando, 781 F.2d 298 (2d Cir.), cert. denied,

es onc cccccccceecce d 6, 19, 24, 25

Hunt v. Liberty Lobby, 720 F.2d 631 (llth Cir. 1983) 18

James v. Gannett Co., 40 N.Y.2d 415, 353 N.E.2d 834,

Io occ cccccccccooceccces 14, 15

Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563 (D.C.

Cir. 1984), rev’d, 477 U.S. 242 (1986) ............ 21, 25

Loeb v. New Times Communications Corp., 497 F.

EEE 14

iv

PAGE

Marcone v. Penthouse International Magazine for

Men, 754 F.2d 1072 (3d Cir.), cert. denied, 474 U.S.

OE4 (19BS) oc cccccccccccccccccccccceccescscccces 10

Martin Marietta Corp. v. Evening Star Newspaper, 417

F. Supp. 947 (D.D.C. 1976)........ 5, 10, 12, 18, 21, 22

Masson v. The New Yorker Magazine, Inc., 895 F.2d

1535 (9th Cir. 1989), cert. granted, 111 S. Ct. 39

(1DDD) . . cccccccccccccccccccccccscevcscoecscesess 10, 17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

47S U.S. 374 (1906) ..ccccccccccccccccccccccccees 23

New York Times Co. v. Sullivan, 376 U.S. 254

(IGG) on ccccccccccccccccccccccccccccececcesees 7, 8, 13

Reader’s Digest Ass’n v. Superior Court, 37 Cal.3d

244, 690 P.2d 610, 208 Cal.Rptr. 137 (1984) (In

Bank), cert. denied, 478 U.S. 1009 (1986)....... 2 ~

] , ,

Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d

369, 366 N.E.2d 1299, 397 N.Y.S.2d 943, cert.

denied, 434 U.S. 969 (1977) 0... 6c cece cece ee enee 22

St. Amant v. Thompson, 390 U.S. 727 (1968)....... passim

Washburn v. Wright, 261 Cal. App. 2d 789, 68

Cal. Rptr. 224 (1968). .......c cece ccc ee eee eeneeees 25

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.

Cir. 1966), cert. denied, 385 U.S. 1011

SPP Prrrrrrrrrrrrrrr tit ttt 9, 11, 12, 13

Weiner v. Doubleday & Co., 74 N.Y.2d 586, 549

N.E.2d 453, 550 N.Y.S.2d 251 (1989), cert. denied,

890 S. Ca. BIGB (IBGE . ccccccccccccccccccccccs 9, 10, 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1799

>

JEFFREY M. MASSON,

Petitioner,

—V.—

THE NEW YORKER MAGAZINE, INC.,

ALFRED A. KNOPF, INC., and JANET MALCOLM,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

—<>—

BRIEF OF ASSOCIATION OF AMERICAN

PUBLISHERS, INC. AND MAGAZINE PUBLISHERS

OF AMERICA, INC., AS AMICI CURIAE,

IN SUPPORT OF RESPONDENTS

STATEMENT

The Association of American Publishers, Inc. and Maga-

zine Publishers of America, Inc. (collectively referred to as

““amici’’) submit this joint brief amici curiae, pursuant to

Rule 37 of the Rules of the Supreme Court of the United

States, urging affirmance of the judgment of the court below.

The written consents of the parties to the filing of this brief

have been obtained and are being filed with the clerk of this

Court.

2

THE AMICI

The Association of American Publishers, Inc. (‘‘AAP’’) is

the major national association in the United States of pub-

lishers of general books, textbooks and educational materials.

Its over two hundred members include most of the major

commercial book publishers in the United States and many

smaller or non-profit publishers, including university presses

and scholarly associations. AAP’s members publish works

which run the gamut of published materials, including non-

fiction, biography, history and fiction.

The Magazine Publishers of America, Inc. (“‘MPA’’) is a

national trade association including in its present membership

218 magazine publishers who publish 846 magazines sold at

newsstands and by subscription. MPA members provide

broad coverage of domestic and international news in weekly

and biweekly publications, and publish weekly, biweekly and

monthly publications covering literature, religion, law, politi-

cal affairs, science, agriculture, industry and many other

interests, avocations and pastimes of the American people.

The amici both represent segments of the publishing indus-

try, and accordingly, this brief will focus on the issues in this

case of greatest relevance to publishers, as distinguished from

other participants in the creation of First Amendment materi-

als. The parties predominantly have focused their submissions

on the allegations that Janet Malcolm, the writer, made a

series of libelous statements by misquoting the plaintiff, and

therefore the parties have dealt only briefly with the libel

charges lodged against the magazine and book publisher of

Malcolm’s work. Accordingly, this amicus submission aims

to examine in greater detail plaintiff's case against the two

publishers and the standards that properly may be imposed

upon publishers without unduly limiting the free flow of

speech.

3

INTEREST OF THE AMICI AND

SUMMARY OF ARGUMENT

Amici submit this brief in order to express their views, on

behalf of their members, of the potentially devastating

impact of an unduly broad-sweeping decision in this case

upon the general development of libel law, a body of law

under which their members function every day. Unfortu-

nately, at the present juncture, legal process appears more to

have obscured the facts of this case than to have laid them

bare. As,now framed, the case is focused upon the hypotheti-

cal conduct of Janet Malcolm—the courts having assumed,

for the purposes of summary judgment, that her notes of

some of Jeffrey Masson’s remarks were ‘“‘fabricated’’ and

that several quotes in her article therefore are clumsy altera-

tions of the words spoken by Masson as reflected on various

audio tapes. This posture lends itself to grand pronounce-

ments in @ vacuum, pronouncements which the amici fear

will lead to improper limitation of the free flow of speech in

Situations not presently before the Court.

: The key question in this litigation has never been whether

it is proper purposely to fabricate quotes. Janet Malcolm

denies having deliberately altered the quotations at issue in

any substantive way, and the editorial practices of The New

Yorker Magazine, Inc. (‘The New Yorker’’) and Alfred A.

Knopf, Inc. (‘‘Knopf’’), as well as others in the industry. do

not embrace the substantive alteration of quotes. Amici are

opposed to the bald fabrication of quotes as a matter of

journalistic practice; they condone only the minor and com-

monplace changes employed to make sentences more under-

standable and coherent, while preserving the speaker’s

meaning.

The propriety of altering quotes is, amici submit, not the

relevant issue. The appropriate inquiry is to determine what

evidence should be sufficient to sustain a libel action for

allegedly inaccurate quotes in light of the impact of the appli-

cable standard on the writer and the publisher in the daily

practice of their craft. In various ways, the standards

4

advanced by plaintiff would force writers and publishers to

be absolute guarantors of the accuracy of quotes—to be

stone-cold positive about them—a burden which would

unquestionably bring to a grinding halt the free flow of

speech.

With respect to the two publishers, The New Yorker and

Knopf, plaintiff falls far short of the evidence required under

prevailing case law to uphold a finding of actual malice.

Masson’s argument regarding The New Yorker is essentially

that, having learned in the context of a pre-publication fact-

check of four minor and nondefamatory mistakes unrelated

to the alleged libels in a very lengthy article by a respected

writer, the magazine publisher must have had subjective

doubts as to the accuracy of the unconnected passages at

issue. Masson’s proposed rule would essentially require that,

once a handful of insignificant errors are discovered, a pub-

lisher would have to assume the role and responsibilities of

the writer and re-check everything, from beginning to end,

with the direct sources or source material. Plainly, this is an

onerous burden which publishers could not sustain and which

would severely contract the number of publications available

to the public. Moreover, this would entail a dramatic change

in long-standing, real world practice.

As for its claim against Knopf, plaintiff essentially argues

that even the vaguest threat of a libel action necessitates sub-

stantial verification, even where the book publisher is merely

reprinting a work of a known and reliable writer, which was

previously published by a respected publisher. Critically,

there is no evidence in the record of any written communica-

tion to either The New Yorker or Knopf stating that the

articles were libelous, or any oral communication in which

specific passages were identified as incorrect, after the articles

were published and prior to the book’s publication. More-

over, Masson’s half-hearted threats came from an individual

who was known from Malcolm’s writings to be litigious and

accusatory. In these circumstances, Knopf had no ‘‘obvious

reasons”’ to suspect falsity, and thus its judgment to rely

upon a respected writer and publisher rather than investigate

5

cannot, as a matter of law, form the basis for liabil-

. As stated in an analogous case: “‘The threat of a libel

suit by [plaintiff] might well give a publisher pause, but it

would not necessarily lead it to doubt the truthfulness of its

article or its sources.”"? Masson himself makes the startling

admission that, while Knopf knew of his accusations, Masson

In this context it is important to remember that publishers

of substaccial size often receive a steady stream of accusa-

tions of falsity or libel, almost always in situations where the

The unusual hypothetical analysis in this case raises two

further concerns for amici. First, it is absolutely critical that

potential plaintiffs in future litigations not be able to thwart

motions for summary judgment by authors and publishers

based primarily on the facile allegation that an author’s notes

are fabricated. Were the simple, easy-to-make charge of fab-

rication, without more, sufficient to lead courts to treat an

author’s notes as a nullity, at best, almost every innocent

author and publisher could be forced to endure the arduous

burdens of trial. Moreover, the threat of such an allegation

would be held over the collective heads of authors and pub-

1 Harte-Hanks Communications, Inc. v. Connaughton, 109 S. C

2678, 2696 (1989). hei

2 Reader's Digest Ass’n v. Superior Court, 37 Cal.3d 244, 260, 690

P.2d 610, 620, 208 Cal. Rptr. 137, 147 (1984) (In Bank), cert. denied,

478 U.S. 1009 (1986).

6

lishers by many a subject seeking to squelch an unfavorable

portrait—thus chilling imany such publications. The principles

of Anderson v. Liberty Lobby, 477 U.S. 242 (1986), dictate

that a mere denial of the accuracy of notes should not be suf-

ficient for a court to adopt the assumption of fabrication for

purposes of summary judgment, and that plaintiffs must

adduce additional evidence sufficient to establish that the

notes are, in fact, fabricated.

Finally, amici encourage the Court to adopt the incremen-

tal harm analysis as applied by the Second Circuit in Herbert

v. Lando, 781 F.2d 298, 310-12 (2d Cir.), cert. denied, 476

U.S. 1182 (1986). Thus, ‘‘statements—even those that might

be found to have been published with actual malice—should

not be actionable if they merely imply the same view, and are

simply an outgrowth of and subsidiary to those claims upon

which it has been held there can be no recovery."’ Herbert,

781 F.2d at 312. Plaintiff's acknowledged quotations are so

colorful that the alleged embellishments essentially do no

more than reinforce the prevalent themes in the article and

are not so far from the ‘“‘truth’’ as to be worthy of a libel

judgment.

ARGUMENT

1.

PLAINTIFF HAS NOT MET HIS BURDEN OF SHOWING

ACTUAL MALICE AS TO THE TWO PUBLISHERS

A. Introduction

The evidence gathered by plaintiff with respect to the

actions of The New Yorker and Knopf falls far short of

establishing the presence of constitutional malice under con-

trolling case law. In cursory fashion, Masson argues that the

two publishers proceeded in reckless disregard of the truth by

failing to ‘take the time to review the tapes’’ despite the fact

that, in the case of The New Yorker, it had knowledge of a

few nondefamatory mistakes, and in the case of Knopf, it

-

had knowledge of a vague threat of a libel action. Brief for

Petitioner (‘‘Ptnr. Br.’") at 21. Masson’s sole authority for

this proposition is an analogy to Harte-Hanks Communica-

tions, Inc. v. Connaughton, 109 S. Ct. 2678 (1989) (hereinaf-

ter “‘Harte-Hanks’’), which he claims holds that ‘“‘such

‘purposeful avoidance of the truth’ would constitute actual

malice.”’ Ptnr. Br. at 21. The facts of Harte-Hanks, however,

are radically different from those before the Court. Harte-

Hanks reaffirms the long-standing principle that ‘‘failure to

investigate before publishing, even when a reasonably pru-

dent person would have done so, is not sufficient to establish

reckless disregard.”’ 109 S. Ct. at 2696. Harte-Hanks requires

further investigation only where “‘ ‘there are obvious reasons

to doubt the veracity’ "’ of the informant or information.

Id., quoting St. Amant v. Thompson, 390 U.S. 727, 732

(1968) (emphasis added).

Courts rightfully have been leery of claims based on failure

to investigate further, both because such decisions by pub-

lishers often are based on a natural division of labor and

faith in the author, rather than subjective awareness of fal-

sity, and because judicially imposed burdens on publishers of

additional verification would narrow the sphere of informa-

tion available to the public. A review of the applicable stan-

dards makes plain that Masson's claims against The New

Yorker and Knopf should be dismissed, and that the stan-

dards Masson seeks to impose on publishers are unworkable

and detrimental to a robust press.

B. The Prevailing Standards Require Subjective Awareness

of Probable Faisity.

The First Amendment prohibits recovery for defamation

unless a plaintiff proves with “‘convincing clarity’’ that a

false “‘statement was made with ‘actual malice’—that is, with

knowledge that it was false or with reckless disregard of

whether it was false or not." New York Times Co. v. Sul-

livan, 376 U.S. 254, 279-80, 285-86 (1964). To survive a

motion for summary judgment, there must be clear and con-

vincing evidence from which a reasonable jury might find

8

that actual malice had been shown with convincing clarity.

Anderson, 477 U.S. at 257.

As emphasized in numerous opinions authored by this

Court, “‘[t}he [actual malice] standard is a subjective one—

there must be sufficient evidence to permit the conclusion

that the defendant actually had a ‘high degree of awareness

of . . . probable falsity.’ *’ Harte-Hanks, 109 S. Ct. at 2696,

quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964). The

inquiry is not whether a publisher has satisfied the standard

of the reasonable or prudent publisher, but rather whether

“the defendant in fact entertained serious doubts as to the

truth of the publication."’ St. Amant v. Thompson, 390 U.S.

727, 731 (1968) (emphasis added); see also Gertz v. Robert

Weich, Inc., 418 U.S. 323, 335 n.6 (1974). The falsity must

be “‘brought home to”’ the publisher. New York Times Co.,

376 U.S. at 287.’

Accordingly, a claim that a defendant failed to investigate

before publishing is relevant only to the extent that it reflects

on the subjective attitude of the publisher. Reader’s Digest

Ass'n v. Superior Court, 37 Cal.3d 244, 690 P.2d 610, 619,

208 Cal. Rptr. 137, 145-46 (1984), cert. denied, 478 U.S.

1009 (1986).‘ As stated above, under Harte-Hanks and its

predecessor cases, including St. Amant, failure to investigate

further is probative of a subjective awareness of falsity only

where “‘ ‘there are obvious reasons to doubt the veracity of

the informant or the accuracy of his reports.’ "’ Harte-

Hanks, 109 S. Ct. at 2696, quoting St. Amant, 390 U.S. at

3. = The Court has adopted a subjective standard even though some erro-

neous publications thereby may receive protection, in recognition of

the fact that ‘‘the stake of the people in public business and the con-

duct of public officials is so great that neither the defense of truth nor

the standard of ordinary care would protect against self-censorship and

thus adequately implemen First Amendment policies."’ Si. Amani,

390 U.S. at 731-32.

4 See also New York Times Co., 376 U.S. at 263, 287 (no actual mai-

ice even where information demonstrating falsity of the allegations

available in the Times’ own files, since editorial staff was unaw.re of

these articles).

9

732. There must be clear and convincing evidence that the

defendant's ‘‘inaction was a product of a deliberate decision

not to acquire knowledge of facts that might confirm the

probable falsity of [the source's) charges.’’ Harte-Hanks, 109

S. Ct. at 2698.’

C. No Liability May Be Imposed Upon The New Yorker.

1. The Discovery Of A Few Minor Errors During Fact-

Checking Does Not Lead To A Duty To Investigate

Further, Including Any Obligation To Verify Quotes.

The uncontroverted record evidence indicates that, even

Yorker did not know that the specific quotations were false,

or act with reckless disregard as to their particular truth or

falsity. The New Yorker relied on a writer with an outstand-

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Co. v. Keogh, 365 F.2d 965, 972-73 (D.C. Cir. 1966), cert. denied, 385

U.S. 1011 (1967) (emphasis added); see also Weiner v. Doubleday &

Co., 74 N.¥.2d 586, 595, $49 N.B.2d 453, 457, SSO N.Y.S.2d 251, 255

(1989), cert. denied, 110 S. Ci. 2168 (1990) (‘without ‘swhstential ree-

sons’ to doubt the accuracy of the material or the trustworthiness of its

author, a publisher is entitied to rely on the research of an established

writer."’) (emphasis added).

Malcolm had prior expertise in writing about psychoanalysis,

the subject at issue in the article, having previously published

a two-part article on the profession in The New Yorker,

which later became a book published by Knopf. (J.A. 47).

Moreover, The New Yorker editors were aware that Malcolm

had conducted extensive recorded interview sessions with

Masson. (J.A. 223).

Reliance on the professional reputation of an author is a

strong factor in defeating an allegation of actual malice. See,

e.g., Marcone v. Penthouse International Magazine for Men,

754 F.2d 1072, 1089 (3d Cir.), cert. denied, 474 U.S. 864

(1985); Reader’s Digest Ass'n, 690 P.2d at 619, 208 Cal. Rptr.

at 146; Weiner v. Doubleday & Co., 74 N.Y.2d 586, 595, 549

N.E.2d 453, 459, 550 N.Y.S.2d 251, 255 (1989) (“‘without

‘substantial reasons’ to doubt the accuracy of the material or

the trustworthiness of its author, a publisher is entitled to

rely on the research of an established writer’); Martin

Marietta Corp., 417 F. Supp. at 959 (newspaper entitled to

rely on reporter “‘of proven reliability’’).*

- The New Yorker also followed its customary fact-~hecking

z

:

3

;

2:

9

3

(Kozinski, J., dissenting), cert. granted, 111 S. Ct. 39 (1990).

Masson bases his libel arguments on a conversation

between Masson and a New Yorker fact-checker prior to

publication of the article during which Masson identified four

alleged errors. Ptnr. Br. at 47; J.A. 66-67. In addition, Mas-

6 Asin Marcone, publishers are permitted to place considerable reli-

ance on a contributor even where the individual is a free-lance writer

who has had only limited contact with the publisher. 754 F.2d at 1089.

In comparison, The New Yorker clearly was entitled to rely on

Malcolm, a long-time contributor of proven reliability.

a

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rather that she was in analysis when Masson met her; 2) that his father

was not from Bessarabia, but rather Bukhara; and 3) that Dr. Eissler

did not return Masson's lewers unopened. ().A. 66-67).

12

Cir. 1966), cert. denied, 385 U.S. 1011 (1967) (hereinafter

““Keogh’’), quoting Garrison, 379 U.S. at 74. Only in

instances of “persistent imaccuracy"’ does a publisher have

reason to be suspicious. Martin Marietta Corp., 417 F. Supp.

at 959-60, citing Keogh, 365 F.2d at 971.

Moreover, there was nothing “inherently improbable” in

the alleged libelous quotations. Sr. Amant, 390 U.S. at 732.

of the article or the insignificance of the imaccuracy. In urg-

ing this onerous standard, plaintiff ignores the realities of the

check the vast quantities of materials which would require

verification under plaintiff's proposed standard. As the D.C.

13

Circuit has stated in language applicable to magazine and

book publishers:

Verification is also a costly process, and the newspaper

business is one in which economic surviva] has become a

major problem, made increasingly grave by the implica-

tions of this fact for free debate. We should be hesitant

to impose responsibilities upon newspapers which can be

met only through costly procedures or through self-

censorship designed to avoid the risks of publishing con-

troversial material.

Keogh, 365 F.2d at 972.

Ironically, the imposition of a duty to check all facts and

quotes upon learning of insignificant inaccuracies would lead

publishers not to check manuscripts at all. See Edwards v.

National Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir.),

cert. denied, 434 U.S. 1002 (1977) (‘‘The appellees would

punish the 7imes for its effort to confirm the story, appar-

ently maintaining that a little prudence is a dangerous

thing’’). There is no convincing, realistic basis to impose fur-

ther responsibilities of verification after the discovery of

minor errors, where this Court did not even require the New

York Times in New York Times Co. v. Sullivan to check its

own files, which contained the Times’ own published articles

demonstrating the falsity of the allegation asserted. See New

York Times Co., 376 U.S. at 263; see also Keogh, 365 F.2d

at 972.

2. This Case Is Disposed Of By Case Law Indicating

That Quotations Do Not Have To Be Reviewed With

An Interviewee And Is Readily Distinguishable From

Harte-Hanks.

Well-established case law specifically supports The New

Yorker’s position that a publisher is not obligated to review

or verify a publication with the subject of the publication. Sr.

Amant, 390 U.S. at 730; Reader’s Digest Ass’n, 37 Cal.3d at

259, 690 P.2d at 619, 208 Cal.Rptr. at 146. A plaintiff can-

not prove actual malice merely by asserting that a- publisher

14

failed to contact the subiect of his work or verify the sub-

ject’s statements. St. Amant, 390 U.S. at 730; Davis v.

Costa-Gravas, 654 F. Supp. 653, 657 (S.D.N.Y. 1987); Loeb

v. New Times Communications Corp., 497 F. Supp. 85, 92-

93 (S.D.N.Y. 1980). 'n a case dealing with the very issue pre-

sented here, James v. Gannett Co., 40 N.Y.2d 415, 423, 353

N.E.2d 834, 840, 386 N.Y.S.2d 871, 877 (1976), the New

York Court of Appeals considered whether actual malice

existed where the plaintiff alleged that she had been mis-

quoted and the reporter and defendant newspaper had

** ‘deliberately refused to allow plaintiff to review said article

and pictures.’ ’’ The court rejected the plaintiff's argument

and stated:

A requirement that persons mentioned in proposed

newspaper accounts or articles be permitted a first

instance, prepublication review, including a review of

direct quotations, would, in effect, impose the equiva-

lent of censorship traditionally anathema in our society.

Outsiders have no right to sit in the editor’s chair; to

insist that an interviewee should be assured an opportu-

nity with the benefit of reflection and hindsight to revise

spontaneous statements would be equally to strike at the

vitality of news reporting.

James, 40 N.Y.2d at 423-24, 353 N.E.2d at 840, 386

N.Y.S.2d at 877. The court soundly rejected the suggestion

that a refusal to verify quotations and other facts with a

plaintiff evidences actual malice:

Publications establish their own method of verifying

information and the fact that the subject of an article

was not offered, prior to publication, an opportunity for

review and comment does not, by itself, establish that

the publisher acted maliciously or recklessly. Only where

the publisher has, or should have had, reasons to doubt

the accuracy of the report or its reporter is there a legal

duty to make further inquiry . . . . In other words, it

must be established that there were obvious reasons to

doubt the veracity of the report.

15

James, 40 N.Y.2d at 424, 353 N.E.2d at 841, 386 N.Y.S.2d

at 877. Plaintiff cites no authority to the contrary.

Plaintiff's effort to squeeze within the rubric of Harte-

Hanks and argue that ‘‘Malcolm’s publishers were guilty of

‘purposeful avoidance of the truth’ ’’ is unavailing. Ptnr. Br.

at 47, quoting Harte-Hanks, 109 S. Ct. at 2698. The sharply

contrasting facts of Harte-Hanks, as compared with the case

at bar, demonstrate soundly that The New Yorker’s conduct

does not qualify as the type of willful blindness that Harte-

Hanks sought to address.

The plaintiff in Harte-Hanks, a candidate for a municipal

judgeship, charged that the defendant newspaper purposely

avoided learning whether, as was reported, he in fact offered

inducements to two citizens to provide information about the

alleged bribery of a member of the incumbent judge’s staff.

This Court affirmed a jury verdict for the plaintiff, finding

that several pieces of evidence, considered cumulatively, pro-

vided clear and convincing evidence of actual malice. The evi-

dence included: 1) the newspaper's choice ‘‘not to interview

the one witness who was most likely to confirm’’ the reported

incident, despite the fact that six other witnesses denied the

reported charges; 2) the newspaper's decision not to listen to

four hours of audio tapes of the actual conversation in which

plaintiff was alleged to have committed his wrongful acts; 3)

the newspaper’s earlier editorial foreshadowing the charges

which could ‘‘be taken to indicate that [the editor] had

already decided to publish [the] allegations, regardless of how

the evidence developed’’; and 4) a finding that the most seri-

ous charge was “highly improbable,’’ and inconsistent with

other undisputed facts. Harte-Hanks, 109 S. Ct. at 2693-94,

2697.

The facts of this case bear no resemblance to those in

Harte-Hanks. The reporters in Harte-Hanks failed to attempt

to contact the key player alleged to have been offered the

inducements, relying instead on her sister’s version of the

incident which was contradicted by six other witnesses. Here,

Malcolm had indeed spoken to Masson, and there were no

16

conflicting accounts of a central event for the magazine to

sort out. In fact, there had been no indication at all that the

quotations now alleged to be fabricated were inaccurate.

In this context, the tapes in Harte-Hanks provided an obvi-

ous means substantially to resolve the conflicting accounts of

the incident the reporters had gathered. The tape was in

effect the newspaper’s entree into an event at which none of

its reporters was present. By contrast, the tapes at issue here

are a reporter’s own tapes of her own interviews. The New

Yorker would only be referring to them as a means of

double-checking and duplicating the work of a respected

writer, not as a source of new information.

Additionally, the newspaper in Harte-Hanks was adjudged

reckless for failing to solicit the most basic of information

from the key witness, not for failing to verify the precise

words used during many hours of conversation. Of note, the

tapes in Harte-Hanks spanned four hours, while Malcolm’s

tapes span between 40-50 hours. Verifying the Masson quotes

against the tapes would have been an absolutely enormous

undertaking, which likely would have consumed at least two

or three times the hours of the tapes themselves.

Viewing the facts as a whole, this Court concluded in

Harte-Hanks that ‘‘the newspaper's inaction was a product

of a deliberate decision not to acquire knowledge of facts

that might confirm the probable falsity of [the source’s]

clarges.”’ 109 S. Ct. at 2698. The New Yorker cannot logi-

cally be viewed as seeking to avoid the truth pertaining to the

alleged libels when it had mo knowledge of any conflicting

version or viewpoint with regard to those statements. More-

over, any such inference of purposeful avoidance of the truth

is specifically negated by the fact that The New Yorker acted

in conformity with its customary policy of checking facts, but

not verifying the precise words, contained in quotes. In sum,

the application of Harte-Hanks to the case at bar would

entail a radical extension of that case, which would signifi-

cantly impair the free flow of speech.

17

3. A Publisher Known For Accuracy Cannot Be Held

To A Higher Standard Under The Subjective Test Of

Actual Malice.

In his dissenting opinion below, Judge Kozinski espouses

the erroneous and harmful theory that The New Yorker

should be judged by a higher-than-customary standard since

it commits substantial resources to fact-checking and there-

fore is well-known for factual accuracy. The dissent reasons

that by giving assurances of its accuracy to the reading pub-

lic, “‘The New Yorker has induced a reasonable expectation

of accuracy in the minds of sources and readers,”’ thus

encouraging sources to speak without reservation and readers

to “‘accept at face value the quotes they read in New Yorker

articles.’ 895 F.2d at 1569.

This theory conflicts with the clear direction of this Court,

discussed above, that the actual malice test focuses upon sub-

jective state of mind, not objective standards, whether self-

created or judicially imposed. The dissent would not have a

judge or jury consider whether The New Yorker in fact enter-

tained serious doubts as to the truth of a statement, but

rather whether The New Yorker, a publication with a stellar

reputation for accuracy, should have known that a particular

Statement was false. No support is given for this novel the-

ory.

Nor does the dissent attempt to justify the disincentive for

publishers to maintain high standards of accuracy which nec-

essarily would result from its proposed analysis. Very simply,

a publisher will not be eager to earn a reputation for reliabil-

ity and accuracy if it knows that its efforts will work against

it in a libel suit. Under the dissent’s theory, hard work,

responsibility and extra care would be punished, not

rewarded, as they should be. This Court should send a clear

message rejecting the reasoning espoused by the dissent

below.

18

4. The Undisputed Evidence Demonstrates That The

New Yorker Is Not Vicariously Liable For Malcolm’s

Actions.

As a last resort, Masson suggests that The New Yorker

should be held vicariously liable for Malcolm's actions “‘[t]o

the extent [she] can be considered an employee of The New

Yorker.”’ Ptnr. Br. at 47.° The undisputed facts, however, do

not render Malcolm an employee under the doctrine of

respondeat superior, and, as a matter of law, preclude a find-

ing of vicarious liability. For example, as with the article at

issue, Malcolm suggests articles which The New Yorker edi-

tors are free to reject, and is paid only at the completion of

the work. (J.A. 244-45). She is not required to spend any

amount of time working for The New Yorker, nor is she

required to write anything for The New Yorker. The determi-

nation as to what, if anything, she writes, is solely hers, and

the amount she is paid per article varies. (J.A. 245-246).

The test for imposing vicarious liability is whether the

agent or employee is subject to the control of the principal or

employer. See Hunt v. Liberty Lobby, 720 F.2d 631, 649

(1lth Cir. 1983). This element of control is missing here.

Plaintiff cites no case where the tenuous relationship between

a writer and a publisher evidenced here resulted in an imposi-

tion of liability on the publisher. The prevailing case law is to

the contrary.”

8 Of course, as the district court held, The New Yorker cannot be held

vicariously liable where the actions of Janet Malcolm, the alleged

“employee,"” do not support a reasonable jury finding of actual

malice.

9 See, e.g., Martin Marietta Corp., 417 F. Supp. at 961 (newspaper

not liable for actions of third party news service writer even where

newspaper editor gave specifications for the article, permitted use of

the newspaper's library and files for research, and compensated writer

for the article).

19

D. No Liability May Be imposed Upon Knopf.

With respect to the book publisher Knopf, plaintiff's claim

is premised upon the insupportable argument that publishers

are required to engage in substantial verification every time

they receive a vague threat of a libel action—or else be guilty

of “‘purposeful avoidance of the truth.”’ Harte-Hanks, 109 S.

Ct. at 2698. This is directly contrary to prevailing law and is

especially inappropriate where, as here, the publisher merely

was republishing an article written by a reliable author and

previously reviewed by a respected publisher. As detailed

below, Masson's vague and half-hearted indications of inac-

curacies did not provide “‘obvious reasons”’ Sor Knopf to sus-

pect falsity, and thus an obligation to investigate further. Sv.

Amant, 390 U.S. at 732.

1. Knopf Placed Justifiable Reliance On A Respected

Author and Publisher.

Knopf’s reliance on two layers of reputable sources in the

chain of publication strongly negates a claim of actual mal-

ice. Like The New Yorker, Knopf was entitled to rely on the

as First Amendment jurisprudence has sought to avoid.

Geiger v. Dell Publishing Co., 719 F.2d 515, 518 (ist Cir.

2. Masson’s Vague Denial of Accuracy Created No Rea-

duce just such a chilling effect on the free flow of ideas

1983); see also Weiner, 74 N.Y.2d at 595, $49 N.E.2d at 457,

550 N.Y.S.2d at 255.

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