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

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oy re Bt wa as

Tue New YORKER MAGAZINE, INC.,

ALFRED A. KNopr, INC., and

JANET MALCOLM,

Respondents.

On Writ o# Certiorart to the

United States Court of Appeals

for the Ninth Circuit

- BRIEF OF AMICI CURIAE

‘TIME INC. MAGAZINE COMPANY,

‘SOCIETY OF NEWSPAPER EDITORS,

AN CIVIL LIBERTIES UNION,

LETTER ASSOCIATION,

subline eons AND DAVID McCLLLOUGH

Of Counsel: RoshYN A. MAZER

Harry M, JoHNsTOoN, III ‘ ( reg: of Record) i

The Time Inc. Magazine AUL R. TASKIER

Company MELINDA C. BURROWS ;

Time & Life Building, 17th Floor DICKSTEIN, SHAPIRO

Rockefeller Center & Moan

New Y. Y 2101 L Street, N.W.

ee ee eee ieee DC. 20087

(202) 785-9700

(Additional Counsel Listed on Inside Cover)

Dencapenvaruenes. inc. - 789-0086 - WASHINGTON, D.C. 20001 '

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TABLE OF CONTENTS

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INTEREST OF AMICI CURIAE .....0000000.00.202.22.2:0000---

INTRODUCTION AND SUMMARY OF ARGU-

EE Les a

Ee

I. THIS COURT HAS REFUSED TO PRE-

II.

Ill.

SCRIBE JOURNALISTIC STANDARDS IN

ITS ENFORCEMENT OF THE ACTUAL

a

A. The Fault Standard In Public Figure Libel

Focuses On The Defendant’s Subjective State

AS TS A CO RS

B. The Actual Malice Standard Incorporates

The Doctrine Of “Substantial Truth”

REPORTING ON THE WORDS OF PUBLIC

FIGURES SHOULD CONTINUE TO BE SUB-

JECT TO THE SAME LEGAL STANDARD

AS REPORTING ON THEIR DEEDS ..........

NON-VERBATIM DEPARTURES FROM

QUOTED REMARKS WHICH ARE THE

PRODUCT OF RATIONAL EDIT®’RIAL

JUDGMENTS OR DO NOT CAUSE REPUTA-

TIONAL HARM CANNOT ALONE ESTAB-

Es

A. Respondents’ Editorial Judgments Produced

A Rational Interpretation Of Ambiguous

al Ue

B. Non-Verbatim Departures Which Do Not

Increase The Defamatory Impact Or Alter

Substantive Content Cause No Reputational

TEES ST ee ee

ea cdalenesetniepindnésenavetansesineeteeseccoesevee

SEES

10

11

21

22

26

30

la

ii

TABLE OF AUTHORITIES

Cases: Page

Alioto v. Cowles Communications, Inc., 623 F.2d

616 (9th Cir. 1980), cert. denied, 449 U.S. 1102

RN SRE SE i a BT ASE“ i8 ONDER Re ry ON 10

Anderson v. Cramlet, 789 F.2d 840 (10th Cir.

SEER I ele ice Fs Re aa Ts 11, 25

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

REE ace Seid EC Rene nce Re passim

Associated Press v. Walker, 388 U.S. 130 (1967).. 6

Beckley Newspapers Corp. v. Hanks, 389 U.S. 81

I minis 6

Bindrim v. Mitchell, 92 Cal. App. 3d 61, 155 Cal.

Rptr. 29, cert. denied, 444 U.S. 984 (1979) ......... - 28

Bose Corp. v. Consumers Union of United States,

es tr Ms MIE CID iccttecectcenitcsicedicnkicccecees 6-7, 22

Carson v. Allied News Co., 529 F.2d 206 (7th

a ae 28

Chang v. Michiana Telecasting Corp., 900 F.2d

a aamaal 8, 21

Clyburn v. News World Communications, Inc., 903

i f § 5 % Gn versne 8, 21, 28

Contemporary Mission, Inc. v. New York Times,

842 F.2d 612 (2d Cir.), cert. denied, 488 U.S.

RI LEE car Ren a i ae 8, 28

Curtis Publishing Co. v. Butts, 388 U.S. 130

a 6, 9

Fletcher v. San Jose Mercury News, 216 Cal. App.

3d 172, 264 Cal. Rptr. 699 (1989), cert. denied,

ne 10

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

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).. 24, 26

Harte-Hanks Communications, Inc. v. Connauzh-

a, Ser S. Ge Bee Cee ................................. passim

Herbert v. Lando, 441 U.S. 153 (1979) 6

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.),

cert. denied, 434 U.S. 834 (1977)... ie 28

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

ny CY I passim

Masson v. New Yorker Magazine, Inc., 686 F. Supp.

gk RSA ae 11

iii

TABLE OF AUTHORITIES—Continued

Page

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

lave 19

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)... 6

NAACP v. Button, 371 U.S. 415 (1963) 00000000... 26

New York Times v. Sullivan, 376 U.S. 254 (1964). passim

Oregon v. Hass, 420 U.S. 714 (1975) -.................... ll

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.

er aL ccuniieleoe 29

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

244, 690 P.2d 610, 208 Cal. Rptr. 187 (1984),

cert. denied, 478 U.S. 1009 (1986) —....00..00000...... 10

Ryan v. Brooks, 634 F.2d 726 (4th Cir. 1980) 29

Saenz v. Playboy Enters., 841 F.2d 1309 (7th Cir.

i ABE BR a. EI i te SR id eS a 8

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

Selleck v. Globe International, Inc., 166 Cal. App.

3d 1123, 212 Cal. Rptr. 838 (1985) —.......0000........ 28

Tavoulareas v. Piro, 759 F.2d 90 (D.C. Cir. 1984),

rev'd, 817 F.2d 762 (D.C. Cir.) (en banc), cert.

denied, 484 U.S. 870 (1987) .................0........ 9, 10, 25, 28

Time, Inc. v. Hill, 385 U.S. 374 (1967) .......... oachEs 9

Time, Inc. v. Pape, 401 U.S. 279 (1971) ................ passim

United States v. Perkins, 498 F.2d 1054 (D.C. Cir.

a ensemanee 16

Vachet v. Central Newspapers, 816 F.2d 313 (7th

Cir. 1987) ......... BSR BRL rat Ask Soll By ee aM Tele a RE 25

Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066

.. fg, See ai ind hae 10

United States Constitution:

Es cosine bebeinsainiatabaatannieatan’ passim

Statute:

Cal. Civ. Code § 45a (West 1982) _......00000 8

Federal Rules of Appellate Procedure:

lle CT Sh oe a Ne PCED 16

Federal Rules of Civil Procedure:

ae]

=

—

@

or

for)

-_

@

—

or or

iv

TABLE OF AUTHORITIES—Continued

Treatises: Page

W. Keeton, Prosser and Keeton on the Law of

TTA IS ane Oe Sa

Restatement (Second) of Torts (1977) ...............

oo

Miscellaneous:

Berry, A Study of Accuracy in Local News Stories

of Three Dailies, 44 Journalism Quarterly 482

STUER” SE aT ee i oe awn 15

J. Brady, The Craft of Interviewing (1976) 15, 18, 20-21

Calamai, “Discrepancies in News Quotes from the

Colin Thatcher Trial,” in Trials and Tribulations

(N. Russell ed. 1986), Table 4 (University of

Regina, Saskatchewan) ...........................-.--.0-------- 16

Edel, “The Figure Under the Carpet,” in Telling

Lives: The Biographer’s Art (M. Pachter ed.

ERE SESE ESS Re TT a a 26

L. Edel, Writing Lives (1984) 0.000000 19

Lehrer, Between Quotation Marks, 66 Journalism

Quarterly 902 (Winter 1989) ETE ER. 14, 15

Lehrer, Remembering and Representing Prose:

Quoted Speech as a Data Source, 12 Discourse

gc a 18

T. Leonard, The Power of the Press: The Birth of

American Political Reporting (1986) 13

Lewis, “Some Errors and Puzzles in Watergate

Coverage,” Columbia Journalism Review Nov./

RE EC a el A or ee ROR SE 16

Rosengarten, “Stepping Over Cockleburs: Con-

versations with Ned Cobb,” in Telling Lives:

The Biographer’s Art (M. Pachter ed. 1979) 12

Transcript (Unofficial) of Sentencing of Michael

R. Milken, United States v. Milken, (S) 89 Cr.

41 (KMW), Nov. 21, 1990, reprinted in Sec.

Insider Trading Litigation Rep. (Andrews)

SRR ES EC re nT ee 17

Tuchman, “Problems in Writing the Biography of

General Stilwell,” in Practicing History (1981) .. 12

v

TABLE OF AUTHORITIES—Continued

Walker, “Language at Werk in the Law,” in Lan-

guage in the Judicial Process (J. Levi & A.

I I a saepdemmbastesenanbionnee

Weaver, Hopkins, Billings & Cole, Quotes vs. Para-

phrases in Writing: Does it Make a Difference

to Readers?, 51 Journalism Quarterly 400 (Fall

a cmaendidibininbeves

W. Zinsser, On Writing Well: An Informal Guide

to Writing Nonfiction (2d ed. 1980) . eee

Milken Gets 10 Years for Wall St. Crimes, N. y.

, ECE Ee eee ee

Milken’s Stiff 10-Year Sentence Is Filled With In-

centives to Cooperate With U.S., Wall St. J.,

I a ei

Symbol of the 90’s, Wall St. J., Nov. 23, 1990.

Page

16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1799

JEFFREY M. MASSON,

7 Petitioner,

THE NEW YORKER MAGAZINE, INC.,

ALFRED A. KNopr, INC., and

JANET MALCOLM,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

THE TIME INC. MAGAZINE COMPANY,

AMERICAN SOCIETY OF NEWSPAPER EDITORS,

NATIONAL ASSOCIATION OF BROADCASTERS,

THE AUTHORS GUILD, INC.

THE POINT REYES (CALIFORNIA) LIGHT,

COLLEGE MEDIA ADVISERS, INC.

STUDENT PRESS LAW CENTER,

AMERICAN CIVIL LIBERTIES UNION,

NEWSLETTER ASSOCIATION,

EDMUND MORRIS AND DAVID MeCULLOUGH

This brief is respectfully submitted, with the consent

of the parties, pursuant to Rule 36.2 of the Rules of this

Court, urging affirmance of the decision below.

INTEREST OF AMICI CURIAE

This brief is submitted on behalf of eleven amici curiae:

The Time Inc. Magazine Company, American Society of

Newspaper Editors, National Association of | roadecast-

ers, The Authors Guild, Inc., The Point Reyes (Califor-

2

nia) Light, College Media Advisers, Inc., Student Press

Law Center, American Civil Liberties Union, Newsletter

Association, Edmund Morris and David McCullough.

Each of the amici is more fully described in the Appendix

hereto.

Amici consider this case to be of critical significance

in preserving constitutional protection for the publication

of words attributed to public officials and public figures

in newspapers, magazines, television and radio broadcasts,

works of biography and history, and other nonfiction

works. Amici urge that reporting on the words of public

figures should continue to be subject to the same legal

standard as reporting on their deeds.

Amici disapprove of deliberate alteration or fabrica-

tion of quotes.

INTRODUCTION AND SUMMARY OF ARGUMENT

A public figure who eagerly submitted himself to over

40 hours of tape-recorded interviews and many hours of

untaped interviews and conversations did not like the

way he was quoted in a few passages published by re-

spondents. He filed a libel and invasion of privacy com-

plaint expressly denying having made certain statements

attributed to him in quotation marks. He withdrew his

initial complaint, however, after transcripts of the tape-

recorded conversations showed that three of the challenged

statements were quoted verbatim. Three other com-

plaints were pursued, some of which continued to chal-

lenge quotations later found to be taken virtually ver-

batim from tape-recorded conversations. Following the

district court’s dismissal of these portions of the amended

complaints (for failure to establish falsity), petitioner

charged respondents, in his Fourth Amended Complaint,

with defaming him in a few passages which were not

recorded on tape in the exact words attributed to him

in two lengthy magazine articles and a subsequently

published book.

3

I. Libel suits controlled by the actual malice rule of-

ten present themselves at summary judgment in a posture

where plaintiffs resist the defendants’ motion on the

ground that there is sufficient evidence for a jury to find

actual malice by clear and convincing evidence. As care-

fully administered by this Court to encourage the breath-

ing room necessary to foster the principles underlying

the First Amendment, the fault standard in public fig-

ure libel has focused since New York Times v. Sullivan,

376 U.S. 254 (1964), on whether the writer or publisher

had a “high degree of awareness of . . . probable falsity.”

Garrison Vv. Louisiana, 379 U.S. 64, 74 (1964). Unless

the defendant “in fact entertained serious doubts as to

the truth of his publication,” even the erroneous publica-

tion is protected by the First Amendment. St. Amant

v. Thompson, 390 U.S. 727, 731 (1968). In this case, a

writer drew upon many hours of interviews and con-

versation, most of them taped, and published a lengthy

account of a complex controversy. As many journalists,

biographers and other writers commonly do, she drew

upon a considerable volume of notes and tapes, as well

as her memory, and placed in quotations many thousands

of words.

We urge in Part I that the Court reject petitioner’s

claim that respondents’ alleged departures from journal-

istic standards “will help the Court evaluate whether,

under the circumstances, the false speech that it is being

asked to protect is ‘of a character’ protected by the First

Amendment.” Brief for Petitioner (“Pet. Br.”) 24. As

this Court has stated, “there is no question that public

figure libel cases are controlled by the New York Times

standard and not by the professional standards rule,

which never commanded a majerity of this Court.”

Harte-Hanks Communications, Inc. v. Connaughton, 109

S. Ct. 2678, 2685 (1989). We show further that the issues

of “actual malice” and “substantial truth” are necessarily

intertwined in a libel suit arising from assertedly defama-

1

tory quotations, and that recognition of this fact was cen-

tral to the ruling of the court below that unless public

figure libel plaintiffs can demonstrate by clear and con-

vincing evidence that the publishers of a quotation in fact

understood they were constructing a defamatory falsehood

or had a “high degree of awareness of . . . probable

falsity,” Garrison v. Louisiana, 379 U.S. at 74, they can-

not create a jury issue on actual malice in a libel suit

arising from an allegedly defamatory quotation.

II. As this Court recognized in Time, Inc. v. Pape,

401 U.S. 279, 285 (1971), “a vast amount of what is

published in the daily and periodical press purports to be

descriptive of what somebody said rather than of what

anybody did.” The types of decisions made in capturing,

recording and publishing quotations fall squarely within

existing First Amendment doctrine protecting such con-

duct from the constitutional hazard of a jury verdict on

the actual malice issue. As the empirical studies and

other material we present in Part II show, when journal-

ists, biographers and other writers publish the remarks

of public figures, they face many choices due to a host of

practical, technological and other factors. They face, as

well, the consequences of human fallibility. Such factors

have nothing to do with the writer’s or publisher’s sub-

jective attitude toward the truth or falsity of published

statements. Empirical studies show that discrepancies in

words attributed to public figures generally do not change

the meaning or context of the words. As further ela-

borated in Part II, good journalism and good law have

lived together when it comes to analyzing allegedly de-

famatory remarks which are published in the form of

quotations. Further, because the law of defamation

redresses injury to reputation, there is no principled

basis for distinguishing the fault standard for defama-

tory assertions about what a public figure did and simi-

larly hurtful assertions about what a public figure said.

5

III. The challenges petitioner has made to the state-

ments at issue fall into two categories: remarks that

were edited in an allegedly misleading fashion and re-

marks placed in quotations which he denies having made

in the precise words attributed to him. The mere fact

that petitioner denies having made certain statements

should not place a greater burden on respondents to ne-

gate malice under Fed. R. Civ. P. 56/e), any more than

would his denial of any statement of historical fact. See

Pape, 401 U.S. at 290. Had respondents paraphrased the

same remarks or accused petitioner of other, allegedly

defamatory facts, he would bear the same burden under

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56

(1986), to produce evidence which “could support a rea-

sonable jury finding . . . that the plaintiff has shown ac-

tual malice by clear and convincing evidence.” We show

in Part III that the court below correctly applied exist-

ing doctrine under the First Amendment to reach the

conclusion that petitioner did not meet his burden of

showing respondents’ knowledge of falsity or their reck-

less disregard of truth as to any of the statements.

ARGUMENT

I. THIS COURT HAS REFUSED TO PRESCRIBE

JOURNALISTIC STANDARDS IN ITS ENFORC?-

MENT OF THE ACTUAL MALICE RULE

A. The Fault Standard In Public Figure Libel Focuses

On The Defendant’s Subjective State Of Mind

The interplay between the clear and convincing evidence

standard of the “actual malice” rule defined in New York

Times Vv. Sullivan, 376 U.S. 254 (1964), and the parties’

respective burdens in prosecuting and opposing motions

for summary judgment under Fed. R. Civ. P. 56 was

resolved in Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986). In determining whether public officials or public

figures have met their burden to create a genuine issue of

material fact in resisting a summary judgment motion on

the actual malice question, the Court ruled:

6

the appropriate summary judgment question will be

whether the evidence in the record could support a

reasonable jury finding either that the plaintiff has

shown actual malice by clear and convincing evidence

or that the plaintiff has not. [ /d. at 255-56.]

It is insufficient under Anderson merely to assert “that

the jury might, and legally could, disbelieve the defend-

ant’s denial of . . . legal malice,” id. at 256; rather,

a trial judge must bear in mind the actual quantum

and quality of proof necessary to support liability

under New York Times. For example, there is no

genuine issue if the evidence presented in the oppos-

ing affidavits is of insufficient caliber or quantity to

allow a rational finder of fact to find actual malice

by clear and convincing evidence. [Jd. at 254.]

Of the twelve public figure libel cases which have

previously come before this Court where application of

the New York Times actual malice rule was dispositive

in cases involving false factual assertions, all but one

involved allegedly defamatory allegations about what

someone did.’ Time, Inc. v. Pape, 401 U.S. 279, 285-86

'New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (allega-

tions in advertisement by civil rights advocates accusing Mont-

gomery, Alabama police officials of using repressive tactics toward

demonstrators) ; Garrison V. Louisiana, 379 U.S. 64 (1964) (district

attorney accused eight judges of official misconduct); Curtis Pub-

lishing Co. V. Butts, 388 U.S. 130 (1967) (college athletic director

charged of conspiring to “fix” a 1962 college football game);

Associated Press Vv. Walker, 388 U.S. 130 (1967) (wire report stat-

ing that political activist had led the charge against federal mar-

shals sent to enforce court desegregation decree and had urged

rioters to use violent measures); Beckley Newspapers Corp. Vv.

Hanks, 389 U.S. 81 (1967) (per curiam) (newspaper editorials

accusing candidate for court clerk of official misconduct): Sf.

Amant V. Thompson, 390 U.S. 727 (1968) (accusation that deputy

sheriff was implicated in illegalities, including corruption, in the

sheriff's office); Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)

(losing candidate for U.S. Senate accused of having been a “boot-

legger”); Herbert v. Lando, 441 U.S. 153 (1979) (television seg-

ment challenging the bona fides of a U.S. Army general's allega-

tions of atrocities during the Vietnam war); Bose Corp. v. Con-

7

(1971), and this case, involve allegedly defamatory alle

gations about what someone said. As this Court recog-

nized in Pape, id. at 286, “(t]he question of the ‘truth’ of

such an indirect newspaper report presents rather com-

plicated problems.”

Petitioner disregards the core constitutional principle

that the defendant must entertain subjective doubts about

the truth of the publication. He argues that “a jury could

infer knowing falsity solely from the objective evidence

that Malcolm attributed words to Masson that he did not

say.” Pet. Br. 43 (emphasis added). Alleged falsehoods

in other contexts have never been held to such a standard,

indeed, in St. Amant v. Thompson, 390 U.S. 727, 733

(1968), the Court applied the subjective standard of New

York Times, 376 U.S. at 287-88, when it ruied that a

falsehood arising from “[f]ailure to investigate does not

in itself establish bad faith.” (Emphasis added.) When

assessing the evidence of actual malice as to statements

about what public figures have allegedly done, “reckiess

conduct is not measured by whether a reasonably prudent

man would have published, or would have investigated

before publishing.” /d. at 731. Rather, “|t]here must be

sufficient evidence to permit the conclusion that the de-

fendant in fact entertained serious doubts as to the truth

of his publication.” /d.

Absent evidence that the writer in fact entertained

serious doubts about the substance of the remarks attrib-

uted to the public figure, or evidence that the writer

knowingly enhanced the defamatory “sting,” there is no

sumers Union of United States, Inc., 466 U.S. 485 (1984) (critical

review of the sound quality of plaintiff's loudspeaker system focus-

ing on whether the sound of musical instruments as heard through

plaintiff's loudspeaker system tended to wander “about the room”) ;

Anderson V. Liberty Lobby, Inc., 477 U.S. 242 (1986) (magazine

articles accusing self-described “citizens’ lobby” of neo-Nazi, anti-

Semitic, racist and fascist activities); Harte-Hanks Communica-

tions, Inc. v. Connaughton, 109 S. Ct. 2678 (1989) (candidate for

a municipal court judgeship accused of using “dirty tricks” and

offering grand jury witness and her sister jobs and a free trip

“in appreciation” for their help in the investigation) .

8

principled reason for distinguishing between liability for

asserting errors of historical fact and liability for errors

in attributed quotations. As the focus of libel law is on

reputational injury,’ it is utterly irrelevant whether such

injury arises from the publication of defamatory quotes,

paraphrases or other forms of false factual assertion. The

court below correctly recognized that petitioner’s narrow

focus on quotation marks was a red herring and held

that the traditional actual malice inquiry applies to quoted

remarks of public figures.*

Petitioner claims that respondents’ alleged departure

from journalistic standards “will help the Court evaluate

whether, under the circumstances, the false speech that it

is being asked to protect is ‘of a character’ protected by

the First Amendment.” Pet. Br. 24. While this Court

has held that objective evidence of journalistic standards

may in some cases be “supportive of the court’s ultimate

conclusion” that the actual malice standard has been met,

“courts must be careful not to place too much reliance

on such factors.” Herte-Hanks Communications, Inc. v.

Connaughton, 109 S. Ct. 2678, 2686 (1989). The reason

for this caution lies at the core of our First Amendment

jurisprudence and this Court’s recognition that

* See Cal. Civ. Code § 45a (West 1982); W. Keeton, Prosser and

Keeton on the Law of Torts $111 (5th ed. 1984); Restatement

(Second) of Torts § 558 (1977).

* Notwithstanding the New York Times rule’s critical focus on

the writer’s or publisher’s subjective state of mind, it has none

theless been tempting in public figure libel cases for plaintiffs to

recount the ways in which an article could have been more precise,

comprehensive or balanced when opposing the defendants’ summary

judgment motion. See, ¢.g., Clyburn v. News World Communica-

tions, Inc., 903 F.2d 29, 24 (D.C. Cir. 1990) (reliance on “biased”

source); Chang Vv. Michiana Telecasting Corp., 900 F.2d 1085,

1088 (7th Cir. 1990) (failure to confirm information with a second

source); Contemporary Mission, Inc. v. New York Times, 842 F 2d

612, 623 (2d Cir.), cert. denied, 488 U.S. 856 (1988) (failure to

include certain language); Saenz v. Playboy Enters.. 841 F.2A

1309, 1319 (7th Cir. 1988) (alleged failure to check facts more

thoroughly). In each of these cases, summary judgment was af-

firmed because the subjective test had not been satisfied.

9

in many areas which are at the center of public de-

bate “truth” is not a readily identifiable concept, and

putting to the pre-existing prejudices of a jury the

determination of what is “true” may effectively in-

stitute a system of censorship.

Time, Inc. v. Hill, 385 U.S. 374, 406 (1967) (Harlan, J.,

concurring in part and dissenting in part).

In Harte-Hanks the Court reinforced the Garrison Vv.

Louisiana, 379 U.S. 64 (1964), and St. Amant line of

cases that declines to resort to journalistic standards or

ethics as the defining measure of the fault standard.

While ultimately concluding that the actual malice stand-

ard had been met, the Court took pains to reiterate its

unqualified rejection of a professional standards rule,

first tracing the rule’s initial promotion by Justice Har-

lan in Curtis Publishing Co. v. Butts, 388 U.S. 130

(1967):

In place of the actual malice standard, Justice Harlan

suggested that a public figure need only make “a

showing of highly unreasonable conduct constituting

an extreme departure from the standards of investi-

gation and reporting ordinarily adhered to by re-

sponsible publishers.” This proposed standard, how-

ever, was emphatically rejected by a majority of the

Court in favor of the stricter New York Times

actual malice rule. Moreover, just four years later,

Justice Harlan acquiesced in application of the actual

malice standard in public figure cases, see Rosen-

bloom v. Metromedia, Inc., 403 U.S. 29, 69-70 (1971)

(Harlan, J., dissenting), and by the time of the

Court’s decision in Gertz v. Robert Welch, Inc., 418

U.S. 323 (1974), the Court was apparently unani-

mously of this view. Today, there is no question that

public figure libel cases are controlled by the New

York Times standard and not by the professional

standards rule, which never commanded a majority

of this Court. {Id. at 2685 (emphasis added, cita-

tions omitted} .]

Accord Tavoulareas v. Piro, 817 F.2d 762, 796 (D.C.

Cir.) (en banc), cert. denied, 484 U.S. 870 (1987) (the

court “dofes] not sit ‘as some kind of journalism

10

review seminar offering our observations on contemporary

journalism and journalists’”) (quoting Tavoulareas Vv.

Piro, 759 F.2d 90, 145 (D.C. Cir. 1984) (Wright, J.,

dissenting) ); Fletcher v. San Jose Mercury News, 216

Cal. App. 3d 172, 187, 264 Cal. Rptr. 699, 706 (1989),

cert. denied, 111 S. Ct. 51 (1990).

B. The Actual Malice Standard Incorporates The Doc-

trine Of “Substantial Truth”

Under federal law, truth is a constitutionally man-

dated defense to a state defamation action. See Garrison,

379 U.S.-at 77-78; New York Times, 376 U.S. at 279-80.

Lower federal courts have accorded constitutional protec-

tion to “substantially truthful” publications. See, e.g.,

Tavoulareas Vv. Piro, 817 F.2d at 783; Zeranque v. TSP

Newspapers, Inc., 814 F.2d 1066, 1073 (5th Cir. 1987).

Under California law, “substantial truth” is a complete

defense to a libel action. See Alioto v. Cowles Communi-

cations, Inc., 623 F.2d 616, 619 (9th Cir. 1980), cert.

denied, 449 U.S. 1102 (1981) (statement not libelous

if, “although not literally true in every detail, [it] is

substantially true in its implication, that is that the

‘gist’ or ‘sting’ of the article, read as a whole, is true’).

Moreover, as the court below recognized, both federal and

California law require a public figure plaintiff to prove

that allegedly libelous statements were “made with ‘actual

malice’—that is, with knowledge that it was false or with

reckless disregard of whether it was false or not.” 895

F.2d at 1536 (quoting Reader’s Digest Ass’n v. Superior

Court, 37 Cal. 3d 244, 256, 690 P.2d 610, 617, 208 Cal.

Rptr. 137, 144 (1984)).

In both theory and practice, the “aetual malice” stand-

ard and the “substantial truth” doctrine tend to merge.*

Absent recognition of the defense of “substantial truth,”

the actual malice standard “would not exist for errors of

interpretation ..., for once a jury was satisfied that the

interpretation was ‘wrong,’ the error itself would be suffi-

cient to justify a verdict for the plaintiff.” Time, Ine. v.

Pape, 401 U.S. 279, 291 (1971). That recognition is cen-

tral to the Ninth Circuit’s analysis of petitioner’s claims,

11

for it is plain that the “substantial truth” of the quota-

tions and passages which Masson challenges (as deter-

mined from his tape-recorded comments and other evi-

dence) was critical in convincing the court below that

petitioner had failed to present evidence sufficient to cre-

ate a triable issue on “actual malice” under Anderson,

477 U.S. at 252. Accordingly, if a statement is substan-

tially true, in a quotation setting or otherwise, the Court

need not reach the issue of actual malice. See, e.g.,

Anderson Vv. Cramlet, 789 F.2d 840, 846 (10th Cir. 1986)

(applying Colorado law); see Oregon v. Hass, 420 U.S.

714, 719 (1975).

Il. REPORTING ON THE WORDS OF PUBLIC FIG-

URES SHOULD CONTINUE TO BE SUBJECT TO

THE SAME LEGAL STANDARD AS REPORTING

ON THEIR DEEDS

In Time, Inc. v. Pape, 401 U.S. 279, 285-86 (1971),

the Cour. recognized that

a vast amount of what is published in the daily and

periodical press purports to be descriptive of what

somebody said rather than of what anybody did.

Indeed, perhaps the largest share of news concern-

ing the doings of government appears in the form of

accounts of reports, speeches, press conferences, and

the like.

In advancing a virtual per se rule for allowing juries

to award damages for non-verbatim accounts of quoted

words, petitioner proclaims: “Masson’s words spoke for

themselves—they were not just describing an underlying

event, they were the event.” Pet. Br. 34 (emphasis

added). Petitioner thus makes respondents’ point for

them—that there is no logical basis for distinguishing

liability for defamatory errors in quotation and errors of

4 The courts below undertook an exhaustive inquiry to determine

whether the quoted statements were substantially true. See Mas-

son V. New Yorker Magazine, Inc, 895 F.2d 1535, 1539-41, 1542,

1543-44 (9th Cir. 1989): Masson v. New Yorker Magazine, Inc.,

686 F. Supp. 1396, 1407 (N.D. Cal. 1987) (“each of the alleged

defamatory statements is either nondefamatory, substantially true,

or a rational interpretation of ambiguous conversations” ).

12

historical fact. The assertion is also notable in that peti-

tioner ignores the mass of untaped information from

which the articles were derived and discounts completely

the daunting task of reducing the spoken to the written

word.® A person’s ability to capture in writing the exact

words of a speaker depends on many objective variables:

the audibility, cadence and clarity of the speaker; the

hearing ability of the writer; the writer’s knowledge of

shorthand or other methods of abbreviation; whether the

subject matter is interesting or boring to the writer; the

writer’s memory, concentration, educational background

and vocabulary; and a host of external factors, such as

visual and aural distractions.° ;

5 Writers and biographers have had widely divergent experience

using tape recorders to assist their efforts. Many biographers find

that the tape recorder complicates rather than facilitates the

writer’s task in sifting through the pertinent material. In recount-

ing the research for her Pulitzer Prize-winning book, Stilwell and

the American Experience in China (1971), Barbara Tuchman writes:

The effort needed to write a book, even of memoirs, requires

discipline and perseverance which until now imposed a certain

natural selection on what survived in print. But with all sorts

of people being encouraged to ramble effortlessly and endlessly

into a tape-recorder, prodded daily by an acolyte of Oral

History, some veins of gold and a vast mass of trivia are being

preserved which would otherwise have gone to dust.

Tuchman, “Problems in Writing the Biography of General Stil-

well,” in Practicing History 65, 72 (1981). Tuchman also finds

tape recorders to be incompatible with her style:

A woman is accustomed to entering upon a conversation as a

personal thing, even with a stranger—perhaps more so with a

stranger—and I can’t imagine myself plunking a machine

down in front of someone and saying, “Now, talk.”

Id. at 68. Compare Rosengarten, “Stepping Over Cockleburs:

Conversations with Ned Cobb,” in Telling Lives: The Biograph-

er’s Art 105, 116 (M. Pachter ed. 1979) (“Telling Lives’). As dis-

cussed at p. 15, infra, at least one study has shown that news

accounts based on tape recordings contain the same kinds of errors

as non-taped remarks.

®In his remarkable account of how reporters of congressional

debate in colonial America managed to perform their craft until the

publication of Thomas Lloyd’s shorthand method, historian Thomas

13

The Court recognized in Pape that “|a]ny departure

from full direct quotation of the words of the source,

with all its qualifying language, inevitably confronts the

publisher with a set of choices.” 401 U.S. at 286. These

choices depend on sti!l other variables, including time,

space, talent and the writer’s ethical compass. Writers

of all types face such dilemmas every day, a fact which

no doubt accounts for the continuing debate among writ-

ers about the permissible liberties one can take with quoted

remarks. Many reject the formulaic rules of the journal-

ism texts, not only because the aspiration cannot match

the reality but because, in the view of some, it is not a

sufficient aspiration. Wilkam Zinsser, an author and re

spected authority on nonfiction writing, has made the fol-

lowing observation about the writer’s dual obligations to

the person interviewed and the reader:

You will find that he said much that is redundant

or dull. Try to single out the quotations that are

most important or colorful. You will be tempted to

use all the words that are in your notes because you

performed the laborious chore of getting all the

words down. This is no reason for putting the reader

to the same trouble. Your job is to distill the essence.

What about your obligation to the person you in-

terviewed? To what extent can you cut or juggle his

words? This question vexes every writer returning

from his first interview—and it should. But the an-

swer is not hard if you keep in mind two standards:

brevity and fair play.

Your ethical duty to the person being interviewed

is to present his position accurately. If he carefully

weighed two sides of an issue and you only quote his

C. Leonard writes: “Since there was no clear model from the old

world on how to report the discourse of a republic, these men had

to develop their own approach. The craft remained personal and

eclectic . ... Until the middle of the nineteenth century reporters

were self-taught, borrowing parts of other people’s systems and

relying on their special knack of remembering what had been said.”

T. Leonard, The Power of the Press: The Birth of American Po-

litical Reporting 69 (1986).

14

views of one side, making him seem to favor the’

position, you will misrepresent what he told you. ©.

you might misrepresent him by quoting him out of

context, or by choosing only some flashy remark with-

out adding the serious afterthought. You are dealing

with a man’s honor and reputation—and also with

your own.

But after that your duty is to the reader. He de-

serves the smallest package. Most people meander in

their conversation, filling it with irrelevant tales and

trivia. Much of it is delightful, but it is still trivia.

Your interview will be strong to the extent that you

get the main points made without waste.

Therefore if you find on page 5 of your notes a

comment which perfectly amplifies a point on page

2—a point made earlier in the interview—you will do

everyone a favor if you link the two thoughts, letting

the second sentence follow and illustrate the first.

This may violate the truth of how the interview

progressed, but you will be true to the intent of what

was said. Play with the “‘quotes”’ by all means—select-

ing, rejecting, thinning, transposing their order, sav-

ing a good one for the end. Just make sure that the

play is fair. Don’t change any words or let the cut-

ting of a sentence distort the proper context of what

remains.

W. Zinsser, On Writing Well: Ar Informal Guide to

Writing Nonfiction 82-83 (2d ed. 1980).

Recent empirical studies support the existence of a

tolerable margin between aspiration and reality and show

that Mr. Zinsser’s guidance leads in most circumstances

to substantially accurate quotations. In a 1989 study,’

public meetings and speeches in Arizona were tape-

recorded by the study’s author, a professor of linguistics,

who examined 24 resulting news articles (written by

professional journalists and journalism students) for

their fidelity to the tape recording. The discrepancies

were coded into four categories: same meaning, similar

7 Lehrer, Between Quotation Marks, 66 Journalism Quarterly 902

(Winter 1989) (“Lehrer’’).

15

meaning, different but compatible meaning and differ-

ent meaning. Less than half (45.8%) of the accounts cf

news events and interviews produced verbatim reports.

However, the sources who were quoted, when asked to re-

view the accuracy of the articles, themselves concluded

that 98.6% of the non-verbatim reports were substan-

tially true and fell into the following categories:

61.7% same meaning

25.6% similar meaning

11.3% different but compatible meaning.

Sources pointed to only 2 sentences of 133 total sentences

containing quotations where the departures from the tape

recording resulted in different meanings.* Significantly,

the Lehrer study aiso showed that “reporters . . . who

used tape recorders did not produce stories of greater

accuracy than those who used notes. In fact, the same

kinds of errors in quotations can be found in transcrip-

tions by those individuals who helped me transcribe

tapes.” Lehrer at 904. In a 1986 study of newspaper

coverage of a celebrated trial in Canada (where tape

recorders were prohibited), of 1,551 paragraphs with

quotations from trial testimony, 883 paragraphs contained

differences in quotations. The study produced 615 minor

* Few journalists or writers check the accuracy of quotations with

the person interviewed after the fact. One writer remarked, “The

interviewer is lucky if the subject does not ‘improve’ them as well.”

J. Brady, The Craft of Interviewing 116 (1976) (“Brady”). In

one study which asked news sources whether they were quoted

accurately in newspaper articles, 20° stated they were “misquoted” :

Their response is surely tempered by their perception of how

the news story depicts them. If it enhances them or agrees

with their self-perception, they are more likely to agree with

the story’s accuracy than if they are deprecated or ridiculed.

This is especiaily true with quotations. Upon reflection, a per-

son may wish he had not said something, or had said it dif-

ferently. That wish may influence his recall.

Berry, A Study of Accuracy in Local News Stories of Three

Dailies, 44 Journalism Quarterly 482, 484 and Table 2 (1967).

16

discrepancies and 417 major discrepancies (where the

meaning or connotation was altered) .°

*Calamai, “Discrepancies in News Quotes from the Colin

Thatcher Trial,” in Trials and Tribulations (N. Russell ed. 1986),

Table 4 (University of Regina, Saskatchewan). The former Sas-

katchewan Energy M‘nister was on trial in 1984 for the murder of

his wife. Calamai found especially telling the discrepancies in news

accounts of a key witness’s most “popular” quote, in which she re-

counted Mr. Thatcher as saying (according to the official tran-

script): “I have to admit it is a strange feeling to have blown

your wife away.” The newspaper accounts of this quotation

included the following permutations:

“a strange thing to blow your wife away”

“a strange feeling blowing your wife away”

“a strange feeling to blow your wife away.”

According to Calamai, “[{o]bviously, none of these discrepancies

changed the meaning or connotation of the quotation.”

Judges, lawyers and witnesses have long recognized that even the

most conscientious court reporters cannot produce error-free tran-

scripts. See, e.g., United States v. Perkins, 498 F.2d 1054, 1058 &

n.4 (D.C. Cir. 1974); Fed. R. App. P. 10(e); Walker, “Language at

Work in the Law,” in Language in the Judicial Process 203, 212-13

(J. Levi & A. Walker eds. 1990).

Even when a transcript is available prior to publication, and

where one word can make a critical difference in the defamatory

“sting” of the statement, human beings are fallible. During the

intense media coverage of the Watergate affair, a misplaced homo-

nym produced considerable confusion and consternation arising

from statements by President Nixon at a press conference on Sep-

tember 5. 1972. The President was asked whether he had listened

to certain tapes of Oval Office conversations. The White House

transcript quoted President Nixon as saying in response:

“As a matter of fact, the only time I listened to the tapes,

to certain tapes—and I didn’t listen to all of them, of course

—~was on June 4th [italics added |.”

The New York Times transcript of the press conference pro-

vided the following account:

“As a matter of fact, the only time I listened to the tapes,

two certain tapes—and I didn’t listen to all of them, of course

—was on June 4th [italics added|.”

Lewis, “Some Errors and Puzzles in Watergate Coverage,” Colum-

bia Journalism Review, Nov./Dec. 1973 at 28.

A series of articles in major newspapers and weekly magazines

drew various inferences from the President's statement. Time

17

A recent example of news reporting on a high profile

federal court case further illustrates the point. On No-

vember 21, 1990, Michael R. Milken, the former head of

“junk bond” operations at Drexel Burnham Lambert,

Inc., was sentenced in a Manhattan federal court. An

unofficial court transcript of the sentencing proceedings

(the only one available) set forth the following excerpt

from the sentencing judge’s comments:

When a man of your power in the financial world

at the head of the most important department of one

of the most important investment banking houses in

this country repeatedly conspires to violate and vio-

lates securities and tax laws in order to achieve more

power and wealth for himself and his wealthy clients

and commits financial crimes that are particularly

hard to detect, a significant prison term is required

in order to deter others.”

The front-page story of The New York Times the next

day contained the following quotation:

“When a man of your power in the financial world,

at the head of the most important department of one

of the most important investment banking houses in

this country, repeatedly conspires to violate and vio-

lates securities laws and tax laws in order to achieve

more power and wealth for himself and his [wealthy]

clients, and commits financial crimes that are par-

ticularly hard to detect, a significant prison sentence

is called for,” Judge Wood said."

magazine, for example, suggested that the President’s claim that

the Oval Office tapes were compatible with his innocence was “puz-

zling”’ as he had listened to only two of the pertinent tapes. See

id, at 28-29. It was not until presidential press secretary Ron

Ziegler issued a statement a week later that the matter was clarified.

“ Transcript (Unofficial) of Sentencing of Michael R. Milken,

United States v. Milken, (S) 89 Cr. 41 (KMW), Nov. 21, 1990,

reprinted in Sec. Insider Trading Litigation Rep. (Andrews) at

7657 (Dec. 5, 1990) (emphasis added).

'' Milken Gets 10 Years for Wall St. Crimes, N.Y. Times, Nov.

22, 1990, at Al, col. 6 (emphasis added).

18

The lead editorial in The Wall Street Journal on No-

vember 23, 1990 stated:

Crimes that are “harder to detect warrant greater

punishment to deter others,” she said.”

The Journal's news story, which ran the same day, set

forth a quotation from the court transcript:

“You (also) committed crimes that are hard to de-

tect, and crimes that are hard to detect warrant

greater punishment in order to be effective in de-

terring others from committing them.” ™

The foregoing examples suffice to illustrate that “mem-

ory for meaning is better than memory for verbatim

prose.” '* They also illustrate the following humble truths:

memory is imperfect; some people have better memories

than others; people speak faster than they can write;

tape recorders and video cameras are not always avail-

able, acceptable to interviewees, legally permissible, in

good working order, or conducive to eliciting candid in-

formation in the first place; and the daily newspaper,

the weekly magazine, the evening newscast, the literary

profile and the broad spectrum of biographical works rep-

resent different genres, each of which routinely employs

quotations, sometimes using different standards in so

doing. The result is that honest, conscientious reporters,

authors and biographers, who cannot possibly report all

words of public figures in the exact sequence originally

spoken, and in full text, do the best they can to capture

accounts of their exact words, or at least their rational

--yendering of the words spoken, trying their best to pre-

serve the context and meaning."

12 Symbol of the 90's, Wall St. J., Nov. 23, 1990, at A8, col. 1.

13 Milken’s Stiff 10-Year Sentence Is Filled With Incentives to

Cooperate With U.S., Wall St. J., Nov. 23, 1990, at A3, col. 3; see

also Brady at 206.

14 Lehrer, Remembering and Representing Prose: Quoted Speech

as a Data Source, 12 Discourse Processes 105, 121 (1989).

‘5 Historians and biographers who write about or quote living

people confront the same range of options for capturing, recording

19

It is, of course, not surprising that some academics

and working journalists exhort writers to use quotations

only when the words are “verbatim.” Others counsel

editing and rewriting which still remains faithful to the

speaker’s meaning.’ Amici respectfully suggest that

while the latitude journalists, biographers or other writ-

ers may knowingly take with spoken words is an im-

portant subject for continuing debate within the writing

professions, “press responsibility is not mandated by the

Constitution.” Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241, 256 (1974). Even if it were, the largely

unexamined axiom that it is possible for two human

beings to produce the identical quotation is dubious, as

the above-cited studies demonstrate.

With certain exceptions not relevant to the present

discussion,"’ the dissent below would invite a jury deter-

mination on the malice question whenever a person inter-

viewed challenges a writer’s or author’s recollection of

his or her words. If that were the law, a jury trial

would ensue each time a reporter, author or biographer,

and editing the remarks of public figures and share a corresponding

legal risk. “A biographer works in mosaic, translating fragments of

life into a sequence of words: a highly responsible task with an

unwritten ethic of its own.” L. Edel, Writing Lives 109 (1984).

© See, e.g., Weaver, Hopkins, Billings & Cole, Quotes vs. Para-

phrases in Writing: Does it Make a Difference to Readers?, 51

Journalism Quarterly 400 (Fall 1974) (“Many professionals argue

for changing direct quotes slightly, perhaps correcting improper

grammar and omitting redundancies and doing other condensing—

still enclosing the remarks within quotation marks. That argument

boils down to giving the gist of the speaker’s remarks with no change

in meaning, yet doing so in a succinct and readable manner.”).

'T The dissent would remove from the suspect categories inaudible

words, words spoken in a foreign language, editing to improve

grammar or to avoid embarrassment to the speaker, and passayes

signaled as being non-verbatim. 895 F.2d at 1558, 1563, 1564

(Kozinski, J., dissenting).

Petitioner would carve out paraphrases, misperceptions, minor

changes to correct for grammar or syntax, publications which alert

readers that conversations have been fictionalized, and inartful

translations. Pet. Br. 18, 36-37.

20

in good conscience, scribbling as quickly as he or she can,

produces deviations from the “verbatim” remarks of pub-

lie officials or public figures who later claim they are

defamed by the words attributed to them.

Further, liability for a writer’s non-verbatim attribu-

tion of allegedly defamatory quotations to public officials

or public figures should not depend on the myriad meth-

odological, technological and editorial choices which writ-

ers and editors make every day. Were the standard to

rest on these practical variables, the “quantum and qual-

ity” * of the evidence of actual malice weighed by the

trial court might depend, for example, on whether a tape

recorder was used for some portions of an interview but

not others. Reporters and writers would then act at their

peril in publishing untaped portions of interviews for

fear that a jury might, as petitioner and the dissent be-

low urge,” be allowed to infer actual malice from the

mere failure to use taped portions. Liability could also

turn on whether the interviewee believed that only taped

remarks would be used, whether an audiotape or video-

tape was legally permissible, whether the publisher is in

the print or broadcast medium, or whether the interview

was conducted in person or on the telephone.” Even

ane

18 Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

1 See 895 F.2d at 1552 n.6 (“While Malcolm tape-recorded most

of what Masson said, she now claims that some of Masson's most

damaging statements—including his use of the term intellectual

gigolo—were made during a conversation that was not recorded.

Masson claims that he never made such a statement. The jury

might infer from the absence of a tape recording that Malcolm

fabricated the remark.”) (emphasis added) (Kozinski, J., dissent-

ing). This is, indeed, the crux of petitioner’s argument. “This was

also not a question of misperception or faulty notes. Since Malcolm

attended the interviews and had possession of the tapes, she neces-

sarily knew that the quotes she was attributing to Masson were

false... .” Pet. Br. 26 (emphasis added).

“” A telephone interview has definite disadvantages, as the whole

range of communicative body language and facial expression is

absent. A wire service reporter in the 1960's mistakenly reported

that civil rights leader James Meredith was “shot dead,” when the

21

when there is no tape recording, petitioner argues that

a public figure’s mere denial is sufficient to create a jury

issue on the malice question. Pet. Br. 43. Writers also

might be forced to retain every scrap of paper and

notation from interviews lest the destruction of their

handwritten notes, coupled with an interviewee’s subse-

quent denial, produce a jury issue.*' None of these

methodological choices sheds any light on the publisher’s

subjective awareness of the probable falsity of published

quotes and none is, therefore, constitutionally sufficient

evidence of actual malice under New York Times and its

progeny.

Ill. NON-VERBATIM DEPARTURES FROM QUOTED

REMARKS WHICH ARE THE PRODUCT OF

RATIONAL EDITORIAL JUDGMENTS OR DO NOT

CAUSE REPUTATIONAL HARM CANNOT ALONE

ESTABLISH ACTUAL MALICE

Unlike the record on the malice issue available in

Harte-Hanks v. Connaughton, 109 S. Ct. 2678, 2697-98

(1989), where critical interviews of a grand jury wit-

ness and the plaintiff “were captured on tape, [and]

there [could] be no dispute as to what was communi-

cated, nor how it was said,” here, petitioner elected to

sue for damages for the publication of a few statements

which were not recorded on tape in the exact words pub-

lished by respondents. Petitioner acknowledged that he

knew that some of his interviews and conversations with

respondent Malcolm were not tape recorded. J.A. 237-39.

reporter was actually told on the telephone that he was “shot in

the head.” See Brady at 174, 181.

*! The dissent below implies that such accumulation should be the

rule. 895 F.2d at 1552-53 n.7. But see Clyburn v. News World

Communications, Inc., 903 F.2d 29, 33-35 (D.C. Cir. 1990) (affirm-

ing summary judgment notwithstanding plaintiff's claim that re-

porter’s inability to reconstruct his notes was evidence of actual

malice); Chang Vv. Michiana Telecasting Corp., 900 F.2d 1085,

1090-91 (7th Cir. 1990) (reporter’s inability to produce notes does

not permit inference of actual malice).

22

A. Respondents’ Editorial Judgments Produced A

Rational Interpretation Of Ambiguous Remarks

In Time, Inc. v. Pape, 401 U.S. 279 (1971), the Court

reviewed a court of appeals decision which rested on the

premise that a magazine’s deletion of the word “alleged”

from its published account of the findings of a 1961 Civil

Rights Commission report on the subject of police brutal-

ity was sufficient to sustain a jury finding of actual -

malice. The Court held:

Time’s omission of the word “alleged” amounted

to the adoption of one of a number of possible ra-

tional interpretations of a document that bristled

with ambiguities. The deliberate choice of such an

interpretation, though arguably reflecting a miscon-

ception, was not enough to create a jury issue of “mal-

ice” under New York Times. To permit the malice

issue to go to the jury because of the omission of a

word like “alleged,” despite the context of that word

in the Commission Report and the external evidence

of the Report’s overall meaning, would be to impose

a much stricter standard of liability on errors of in-

terpretation or judgment than on errors of historic

fact. [/d. at 290.) *

Pape was the anchor of this Court’s decision in Bose

Corp. v. Consumers Union of United States, Inc., 466

U.S. 485 (1984). In Bose, the critical statement in Con-

sumer Reports magazine about a loudspeaker system was

that “individual instruments heard through the Bose sys-

tem seemed to grow to gigantic proportions and tended

to wander about the room.” Id. at 488 (emphasis added}.

The evidence proffered by the plaintiff on the malice

issue was a Consumers Union engineer’s written report

stating that the “[{i]nstruments . . . appeared to suffer

22 The author of the article testified at trial that the “full con-

text of the Justice report” of the Monroe incident indicated to him

that the incident had occurred as described, and he denied, there-

fore, having falsified the report. A Time researcher testified that

after consulting several articles describing Monrce’s claims about

the raid and other articles decribing Pape’s career, she believed

the article was “true” as written. Jd. at 283.

23

from giganticism and a tendency to wander around the

room.” Id. at 494 (emphasis added). At trial, the engineer

testified that his actual perception of the movement of

the sound source at the time of testing was “along the

wall” rather than “about the room.” Based on these

discrepancies, the trial court determined that there must

have been malice in light of the engineer’s understanding

and the words he actually used, entering a verdict in

favor of the plaintiff.

The court of appeals reversed, 692 F.2d 189 (1st Cir.

1982), and this Court affirmed. Notably, the Court re-

fused to equate the engineer’s “misconception” with the

demanding actual malice standard:

“Analysis of this kind may be adequate when the

alleged libel purports to be an eyewitness or other

direct account of events that speak for themselves.”

Time, Ine. v. Pape, 401 U.S., at 285. See generally

The Santissima Trinidad, 7 Wheat. 283, 338-339

(1822). Here, however, adoption of the language

chosen was “one of a number of possible rational in-

terpretations” of an event “that bristled with ambig-

uities” and descriptive challenges for the writer.

Time, Inc. v. Pape, supra, at 290. The choice of such

language, though reflecting a misconception, does not

place the speech beyond the outer limits of the First

Amendment’s broad protective umbrella.

466 U.S. at 512-13 (emphasis in original).

As in Pape, respondents here published an account of

complex academic and personal subjects based on a sub-

stantial volume of material. Instead of interpreting a

complex document, however, respondents published an

account of petitioner’s words, based on 40-50 hours of

tape-recorded interviews, and notes and recollections of

many unrecorded interviews, all of which formed a body

of “external evidence of [{Masson’s] overall meaning.”

Pape, 401 U.S. at 290. Like the respondent in Bose,

respondent Malcolm published her understanding or con-

ception of what Masson said in a few quoted passages

which were neither recorded on tape in the exact words

published, nor witnessed by others.

24

Accordingly, for petitioner to prevail with respect to

the statements he claims were distorted, he must demon-

strate the following by clear and convincing evidence.

First, petitioner must show that the meanings of his

actual statements were so materially altered that the

published account was neither a rational interpreta-

tion nor a substantially correct recitation of his views.

If such distortion occurred, petitioner must then show

either that respondents were aware that the editing pro-

duced this result or that they acted with reckless dis-

regard in not being so aware. The Ninth Circuit held

that actual malice would not be found when “quotations

are either ‘rational interpretations’ of ambiguous re-

marks made by the public figure, or do not ‘alter the

substantive content’ of unambiguous remarks actually

made by the public figure.” 895 F.2d at 1539 (citations

omitted). A quotation that rationally interprets an am-

biguous remark or does not alter the substantive content

of an unambiguous remark cannot be “false” for the

unremarkable proposition that the author has not changed

the meaning of what he or she believed the declarant

said. (See Part IB, supra.) Thus, if a published quota-

tion meets the court of appeals’ criteria, a plaintiff can-

not prove malice by clear and convincing evidence be-

cause it is impossible to show that the defendant in fact

“entertained serious doubts as to the truth of his publica-

tion.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

By focusing on these questions, the court of appeals’

analysis is wholly consistent with this Court’s oft-stated

rule (summarized at pp. 5-10, supra) that the actual

malice standard requires a determination of each defend-

ant’s subjective attitude toward the truth or falsity of a

publication. See Harte-Hanks, 109 S. Ct. at 2696; Gertz

v. Robert Welch, Inc., 418 U.S. 323, 334 n.6 (1974);

St. Amant, 390 U.S. at 731.

In two of the offending statements, petitioner claims

that Malcolm editorially distorted the sense of his state-

ments in a fashion that defamed him. In one statement,

he claims Malcolm appended a quotation from a different

25

conversation to the end of a discussion which Masson

claims was not related to it, allegedly causing him to

appear as if he were taking credit for a discovery that

was not his. In the second statement, Malcolm “re-

mov(ed]” an intervening passage, Pet. Br. 34, shortening

the quotation and, according to Masson, completely

changing the sense of his statement.

Masson’s central contention is no different than the

contention of many persons dissatisfied with the manner

in which their statements are editorially presented. He

advances the novel proposition, however, that virtually

any departure from “a full direct quotation” should be

sufficient to sustain a jury verdict of actual malice. Pet.

Br. 33. That remarkable departure from prevailing

doctrine would create a jury issue, even in public figure

cases, every time a reporter rationally interprets an

ambiguous remark, or reduces a long interview on com-

plex subjects, in a manner with which the speaker dis-

agrees or by attributing quotations that the plaintiff

denies making. Indeed, that possibility is the very one

protected against in Pape, where the Court acknowledged

that reporting on the words of public figures “presents

rather complicated problems” and will entail “an almost

infinite variety of shadings.” 401 U.S. at 286. To allow

liability to accrue to writers and publishers for what may

at most be a “misconception” arising from an _ inter-

viewee’s awkward, ambiguous or confusing construction

of the world of subjects reported in the media and other

works of nonfiction “would be to impose a much stricter

standard of liability on errors of interpretation or judg-

ment than on errors of historic fact.” Jd. at 290.

It is undeniable that editorial decisions to “thin” quotes,

or transpose or rearrange their order, is a process that

occurs every day in every newspaper, television and radio

station in America, as well as in various works of non-

*4 See, e.g., Tavoulareas V. Piro, 817 F.2d 762, 769-71 (D.C. Cir.)

(en banc), cert. denied, 484 U.S. 870 (1987); Vachet v. Central

Newspapers, 816 F.2d 313, 316-17 (7th Cir. 1987); Anderson v.

Cramlet, 789 F.2d 840, 844-45 (10th Cir. 1986).

26

fiction writers.** To create a jury issue in public figure

libel for editorial judgments made daily in the sometimes

hurried exercise of publishing a newspaper or magazine,

or airing a television or radio broadcast, would produce

a rule wholly at odds with the First Amendment’s guar-

antee of “breathing space,” New York Times, 376 U.S.

at 272 (quoting NAACP v. Button, 371 U.S. 415, 433

(1963)), for “a vigorous and uninhibited press.” Gertz,

418 U.S. at 342. Indeed, such a rule could effectively

preclude summary judgment in libel suits based on as-

sertedly defamatory quotations. See note 26, infra. The

Ninth Circuit’s consideration of the alleged editorial dis-

tortions by respondents measured the ambiguity, confu-

sion and volume of the actual statements and weighed

whether respondents’ account, as supported by Malcolm’s

declarations (J.A. 46-61, 82-86), was rational.” In so

doing, it concluded that respondents did not in fact enter-

tain a “subjective awareness of probable falsity” in mak-

ing their editorial judgments. Without more, the court

correctly held that petitioner’s evidence fell short of the

demanding Anderson standard. 895 F.2d at 1542.

B. Non-Verbatim Departures Which Do Not Increase

The Defamatory Impact Or Alter Substantive Con-

tent Cause No Reputational Injury

The remaining statements challenged by Masson are,

he contends, wholly “fabricated” as they do not appear

on transcripts of his tape-recorded interviews. Pet. Br.

*4* According to Leon Edel, “a biographer is a storyteller who may

not invent his facts but who is allowed to imagine his form. He is

like the sculptor who doesn’t invent his clay, or the painter who

doesn’t invent the tubes out of which he squeezes his paint. The bio-

graphical iraagination is exercised upon gathered data; and the

squeezed colors may not be mixed or blended. They can only be

arranged.” Edel, “The Figure Under the Carpet,” in Telling Lives

17, 20 (1979).

** Petitioner seeks to avoid the force of Pape by ignoring the

considerable volume of his undisputed statements, then limply stat-

ing, “since | Malcolm] had tape recordings there was no ambiguity

as to the actual words used, and she faced no choices in quoting

Masson verbatim.” Pet. Br. 33.

27

20-21. Petitioner claims that the quotations are “false,”

“fake,” “calculated falsehood[s],” and “fabricated,” and

that this is a case about the “right to fake quotes.” Pet.

Br. 22-31.

Masson’s claims are thus founded on his categorical

denial that he said the words attributed to him, and his

conclusion that, accordingly, respondents must have been

aware of their “falsity.” Petitioner ignores the critical

distinction between “false” quotations (which are “false”

merely because he claims not to have said them, but oth-

erwise contain his views) and quotations that do not sub-

stantially reflect his statements and opinions as derivable

from other evidence.

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254

(1986), the Court made plain that “|w]hen determining

if a genuine factual issue as to actual malice exists in a

libel suit brought by a public figure, a trial judge must

bear in mind the actual quantum and quality of proof

necessary to support liability under New York Times.”

Petitioner’s refrain that an allegedly invented or deliber-

ately altered quote is per se proof of knowledge of falsity

is an attempt to evade scrutiny of what Malcolm undis-

putedly knew—the precise words Masson uttered to her

as captured by the tape recorder or in notes or memory.

And it is her knowledge and state of mind that are the

touchstones of the “actual malice” analysis.

Applying the Anderson standard, the court below re-

viewed a lengthy collection of transcripts of Masson’s own

comments, which related to the same subjects as the chal-

lenged quotations. Based upon that review—of a quantity

of evidence far greater and more supportive of the pub-

lished work than is typically the case in public figure libel

actions—the court correctly concluded that neither the

quantum nor the quality of Masson’s evidence was suffi-

cient “to allow a rational finder of fact to find actual

malice by clear and convincing evidence.” 477 U.S. at 254.2°

26The courts below declined to consider Malcolm’s typewritten

notes which were offered, together with her declarations (J.A.

28

The facts reviewed by the court were far from the ex-

treme case where the challenged quotations were con-

cededly invented by the reporter from whole cloth without

ever having spoken to the person quoted, as in Carson V.

Allied News Co., 529 F.2d 206, 212-13 (7th Cir. 1976),

or Selleck v. Globe International, Inc., 166 Cal. App. 3d

1123, 1132, 212 Cal. Rptr. 838, 844 (1985).*" The facts

in Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.),

cert. denied, 434 U.S. 834 (1977), are closer. The Eng-

46-61, 82-86), as negating malice as to three of the challenged

statements (J.A. 52-53, 59, 112-15, 127, 135-36). We believe the

courts below could have, and this Court should, consider those notes

on this issue because nothing Masson has offered to challenge the

notes contradicts the content of the notes as an accurate reflection

of what Malcolm heard Masson say on those three occasions.

At the summary judgment stage, a reporter’s notes are often

critical evidence negating malice, and the public figure plaintiff's

effort to discount notes has been rejected. See, e.g., Clyburn V.

News World Communications, Inc., 903 F.2d 29, 35 (D.C. Cir.

1990) (reporter’s claim that he accurately reported what a source

told him was unrebutted notwithstanding deposition testimony

showing he could not reconstruct from his notes precisely the

phrases used by the source); Contemporary Mission, Inc. v. New

York Times, 842 F.2d 612, 625-26 (2d Cir.), cert. denied, 488 U.S.

856 (1988) (relying on reporter’s notes to negate malice in the

face of a recorded conversation in which source made a contra-

dictory statement) ; ef. Tavoulareas, 817 F.2d at 789 (“actual malice

does not automatically become a question for the jury whenever

the plaintiff introduces pieces of circumstantial evidence tending to

show that the defendant published in bad faith”).

27 By the same token, they also differ significantly from those in

Bindrim v. Mitchell, 92 Cal. App. 3d 61, 155 Cal. Rptr. 29, cert.

denied, 444 U.S. 984 (1979), where there was a marked disparity

between profane quotations attributed to the plaintiff and the

utterances actually made on tape. The defendant in Bindrim was

aware there was a meaningful discrepancy between the published

quotations describing the event and the tape recording document-

ing it because she attended the tape recorded session and thus

knew that her “portrayal of what actually happened’ was false.

155 Cal. Rptr. at 35. In the present case, rather than disproving

the accuracy of the attributed quotations, the tape recordings serve

to support respondents’ other evidence that Masson made remarks

that were substantially similar to the ones he now disputes.

29

lish-language publisher toned down harsh criticisms of

the plaintiff that appeared in the original Spanish ver-

sion and that were attributed to Ernest Hemingway.

Acknowledging that the publisher knowingly

transform[{ed] Hemingway’s words to the much

milder “I don’t trust him,” [the publisher} was fic-

tionalizing to some extent. However, the change did

not increase the defamatory impact or alter the sub-

stantive content of Hemingway’s statement ... .

551 F.2d at 914. Such “fictionaliz{ation]” when the

change “did not increase the defamatory impact or alter

the substantive content” does not affect the central con-

sideration in public figure libel—the vindication of reputa-

tional injury.** The same analysis was appropriately ap-

plied by the courts below in determining that “the sub-

stantive content” of Masson’s acknowledged statements

was reproduced in the quotations he disputed, and in

therefore finding that responder‘s did not have knowledge

of falsity or reckless disregard for truth in publishing

the statements. Cf. Ryan v. Brooks, 634 F.2d 726, 733

(4th Cir. 1980).

The test for actual malice in the quotation context,

applied by the court below, is consistent with this Court’s

prior decisions regarding the “breathing room” necessary

to accommodate First Amendment concerns. Under cer-

tain circumstances, the First Amendment protects even

false publications so long as the defendant publishes with

a good faith belief that the report is true. See Phila-

delphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776

(1986). First Amendment protection must, accordingly,

extend to publications that accurately reflect the substance

of a communication so long as plaintiff cannot show by

clear and convincing evidence either that the defendants

believed they were disseminating a defamatory falsehood,

or had a high degree of awareness of the statement’s

probable falsity. See New York Times, 376 U.S. at 279-

80; Garrison, 379 U.S. at 74; St. Amant, 390 U.S. at 731-

*8 See note 2, supra; Masson, 895 F.2d at 1536.

30

32. To hold otherwise would undermine the delicate bal-

ance between First Amendment freedoms and private

sensibilities established by New York Times and its

progeny.

CONCLUSION

For the foregoing reasons, the judgment below should

be affirmed.

Respectfully submitted,

Of Counsel: ROSLYN A. MAZER

Harry M. JOHNSTON, III

The Time Inc. Magazine

Company

Time & Life Building, 17th Floor

Rockefeller Center

New York, New York 10020

RICHARD M. SCHMIDT, JR.

N. FRANK WIGGINS

COHN AND MARKS

1333 New Hampshire Ave., N.W.

Suite 600

Washington, D.C. 20036

Attorneys for

The American Society

of Newspaper Editors

CHARLEs S. SIMs

PROSKAUER ROSE GOETZ

& MENDELSOHN

1585 Broadway

New York, New York 10036

Attorneys for The American

Civil Liberties Union

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

National Association of

Broadcasters

1771 N Street, N.W.

Washington, D.C. 20036

December 17, 1990

(Counsel of Record)

PAUL R. TASKIER

MELINDA C. BURROWS

DICKSTEIN, SHAPIRO

& MORIN

2101 L Street, N.W.

Washington, D.C. 20037

(202) 785-9700

LEE LEVINE

JAMES E. GROSSBERG

Ross, Dixon & MASBACK

555 - 13th Street, N.W.

Suite 1300E

Washington, D.C. 20004

Attorneys for

The Newsletter

Association

MARK GOODMAN

Student Press Law Center

1735 Eye Street, N.W.

Suite 504

Washington, D.C. 20006

la

APPENDIX

IDENTITY OF INDIVIDUAL AMICI

The Time Inc. “ .gazine Company is the largest pub-

lisher of genera: circulation magazines in the United

States. Among the magazines it publishes are Time,

Fortune, Life, Money, People, and Sports Illustrated.

_The American Society of Newspaper Editors is a na-

tionwide, professional organization of more than 800 peo-

ple who hold positions as directing editors of daily news-

papers throughout the United States.

The National Association of Broadcasters (NAB), or-

ganized in 1922, is a nonprofit incorporated trade asso-

ciation that serves and represents America’s radio and

television stations and all the major networks. NAB’s

members cover, produce and broadcast the news to the

American people. NAB seeks to preserve and enhance

its members’ ability to disseminate information freely

concerning matters of public interest.

The Authors Guild, Inc. is the major national society

of professional authors, representing more than 6,500

members throughout the nation. One of the Guild’s prin-

cipal purposes is to express its members’ views in cases

involving fundamental questions of freedom of expression.

Members of the Authors Guild include not only journa-

lists, but also biographers and historians who regularly

report the words of public figures.

The Point Reyes (California) Light is a weekly paper

with 3,800 circulation which won the Pulitzer Prize in

1979 for its coverage of the Synanon Foundation Church.

The Light has been sued for in excess of $1 billion in six

libel suits arising from its coverage of Synanon; none of

these suits was successful. (See Reader’s Digest Ass’n Vv.

Superior Court, 37 Cal. 3d 244, 690 P.2d 610, 208 Cal.

Rptr. 137 (1984), cert. denied, 478 U.S. 1009 (1986),

and Mitchell v. Superior Court, 37 Cal. 3d 268, 690 P.2d

625, 208 Cal. Rptr. 152 (1984).)

2a

College Media Advisers, Inc. is a national, nonprofit

organization representing more than 600 student media

professionals at more than 300 colleges and universities

across the country, including public, private, two-year

and four-year universities.

Student Press Law Center is a national, nonprofit, in-

corporated, legal research, information and advocacy or-

ganization formed for the purposes of promoting and pre-

serving the free press rights of high school and college

journalists and encouraging quality student journalism.

The American Civil Liberties Union is a nationwide,

nonprofit, nonpartisan organization with over 270,000

members that, since its founding in 1920, has been de-

voted to protecting the constitutional rights of all Ameri-

cans. The core of the ACLU’s concern is the First Amend-

ment guarantee of freedom of speech and of the press.

The Newsletter Association is the international trade

association representing 850 publishers of newsletters

and specialized information services. The Newsletter As-

sociation has a longstanding commitment to the free ex-

change of information and opinion through the written

word as protected by the First Amendment.

Edmund Morris is the author of The Rise of Theodore

Roosevelt (1979), for which he was awarded the Pulitzer

Prize for Biography and the National Book Award in

1980. He is currently at work on a sequel, Theodore Rez.

He is the authorized biographer of President Ronald

Reagan.

David McCullough is the author of The Johnstown

Flood (1968), The Great Bridge (1972), The Path Be-

tween the Seas (1977), for which he was awarded the

National Book Award for History in 1978, and Mornings

on Horseback (1981), for which he was awarded a sec-

ond National Book Award, this one for Biography, in

1982. Each of these books involved extensive interview-

ing. He is currently working on a biography of Harry S.

Truman.