Masson v. New Yorker Magazine, Inc. – Oral Argument – January 14, 1991

Media for Masson v. New Yorker Magazine, Inc.

Audio Transcription for Opinion Announcement – June 20, 1991 in Masson v. New Yorker Magazine, Inc.

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William H. Rehnquist:

We’ll hear argument next in No. 89-1799, Jeffrey M. Masson against New Yorker Magazine, Alfred Knopf, and Janet Malcolm.

Charles Morgan, Jr.:

Mr. Chief Justice, if it please the Court:

This is an action by Jeffrey Masson in which he has claimed he has been defamed by publishing of defamatory quotations purportedly said by him, but never said by him.

Both the district court and the court of appeal assumed that the fact that the quotations were fabricated.

I am assuming that this Court will accept the same assumption, however, I am prepared to discuss the various factors that we introduced in addition to the fact that the words were not on the tape.

The Ninth Circuit, in making its decision, stated, one, that a fabricated quote that is wholly fabricated creates an inference of actual malice.

But it went on to say then that fictionalized quotes will not create an inference of malice if the fictionalized quote is a rational interpretation of what the speaker said, or if it does not alter the substantive content of what the speaker said.

Then they went a step further and they said, as an example of the latter, that a fictionalized quote created no inference of malice because it was consistent with the speaker’s lifestyle and his idea of fun.

It went further and said that it came within the same concept and did not create an inference of actual malice if it was substantially the same as his own self-appraisal of himself.

Sandra Day O’Connor:

Well, Mr. Morgan, do you take the position that every misquote gives rise to an inference of actual malice?

Charles Morgan, Jr.:

I take the position that every misquote that is defamatory and is not just a very minor misquote–

Sandra Day O’Connor:

Well, what is defamatory is typically defined under State law, right?

Charles Morgan, Jr.:

–That’s correct, Your Honor.

Sandra Day O’Connor:

Not Federal law.

Charles Morgan, Jr.:

That’s correct, Your Honor.

Sandra Day O’Connor:

So we’re not concerned with that here.

Charles Morgan, Jr.:

That’s correct, Your Honor.

So what we deal with here… and California is interesting, because in California if a statement exposes a person… that’s all it is, it doesn’t have to say that he does it or he is it, or whatever, it merely says if it exposes him to contempt, ridicule, obloquy, or if it has a tendency to harm him in his profession.

And so therefore any statement of that form that is not what the speaker said, in our opinion creates an inference of actual malice.

And I’m not basing that on whole cloth.

We are basing that on this Court’s statement in St. Amant v. Thompson when this Court said that professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant or is the product of his imagination.

Sandra Day O’Connor:

Do you think the injury to reputation is different when the injury occurs by virtue of a misquote than when it occurs by virtue of a characterization?

Charles Morgan, Jr.:

Absolutely, Your Honor.

And I think that all of the amici briefs and their documents they put in point out to you that the impact when it’s coming from the individual, as opposed to coming from the writer’s perception of the individual, has a greater impact.

Anthony M. Kennedy:

I suppose the law has always recognized that when it admits an admission by a party but excludes hearsay.

I suppose it’s almost the same principle.

Charles Morgan, Jr.:

That’s correct, Your Honor.

And so obviously it has a far greater impact.

Antonin Scalia:

Mr. Morgan, what if… what if I’m in an interview with someone and I make some statements that are very racist.

I say that I think a particular ethnic group is little more intelligent than dogs, that they really can’t cope in our society, something like that.

Antonin Scalia:

And the next day there appears in the paper the quote, Scalia says this group is subhuman.

Charles Morgan, Jr.:

Yes.

Antonin Scalia:

Now, that’s an inaccurate quote.

Charles Morgan, Jr.:

That’s right.

Antonin Scalia:

Is there liability for that?

I mean, if they had, if they had quoted it accurately it would have been just as defamatory.

Charles Morgan, Jr.:

Well, not necessarily, Your Honor.

We start with this.

The person that made that statement, of course, he also has the right of the freedom of speech and the public has the right to hear exactly what he said.

Now, what you are doing is you are substituting your conclusion for what he said, and yet the very words may not necessarily be the same.

Antonin Scalia:

Well, that’s right.

But I’m not going to the question of malice.

I’m accepting your position that all you need for malice is intentionally altering a quote.

I intentionally… this is intentionally altered.

There is no doubt I didn’t say that and the writer knows I didn’t say that.

But having overcome the question of malice, you still have the question of what’s defamatory.

And it’s your position that that is an actual… an actionable defamation even though an accurate quote would have harmed my reputation just as much?

Charles Morgan, Jr.:

If I devine what I think you’re saying, and what I think you’re posing, you’re really dealing with the concept of incremental harm.

Antonin Scalia:

Yes.

Charles Morgan, Jr.:

Because you use the term defamatory.

The minute you say something that will subject me or expose me to obloquy–

Antonin Scalia:

Right.

Charles Morgan, Jr.:

–it’s defamatory.

But now the next question is am I harmed by it?

Am I damaged by it because I said something that at least in your perception is similar to what they are writing?

If I understand the concept, and my own feeling is that there isn’t such a concept as incremental harm and we really haven’t seen it anywhere yet, nevertheless I am still entitled to have a trier of fact decide whether this particular one, this statement, is any different than this statement.

As long as I have met all the rest of the requirements, then it seems that the trier of fact makes the decision well, there’s no harm because he said exactly the same thing.

That’s not this case though, Your Honor, and I think that’s important to point out.

William H. Rehnquist:

Mr. Morgan, in any event, wouldn’t any issue of incremental harm be a matter of State defamation law–

Charles Morgan, Jr.:

I believe so.

William H. Rehnquist:

–rather than of First Amendment law?

Charles Morgan, Jr.:

Absolutely.

I don’t think it’s an issue here.

I don’t think that the Ninth Circuit was right in even raising it in this case.

John Paul Stevens:

Could I change Justice Scalia’s hypothetical just a little?

Supposing it’s perfectly clear that the actual quote is much more insulting and harmful and defamatory, but yet the… what is actually said is also defamatory.

Have you proved malice just by that, by the fact it’s inaccurate?

Charles Morgan, Jr.:

Have I proved malice?

Yes, because… and I know we’re talking about the Hotchner case, and I think it’s a mistake to equate that case here.

But have I proved malice?

Yes.

I have proved you fabricated a quote.

I proved it was defamatory.

Now the only question is am I entitled to any damages.

Who knows?

Maybe I’m only entitled to $1 damages, but maybe I’m entitled to X dollars punitive damages because of the manner in which the writer brought about this situation.

Who knows on that?

At least that’s for the trier of fact to decide.

Byron R. White:

Well, whether what… whether these quotes, whether they were fabricated or not and defamatory isn’t involved in this case, is it?

Isn’t it… doesn’t this case turn on malice?

Charles Morgan, Jr.:

Well, but malice requires defamation, Your Honor.

I mean, in other words–

Byron R. White:

I think a lot of people can defame people and not be liable because they didn’t do it maliciously.

Charles Morgan, Jr.:

–Well, but maliciously is the wrong word, and I say this most respectfully to this Court, from a man who has tried a number of–

Byron R. White:

What is the issue here?

Is it whether these… this is defamatory?

Are we supposed to decide whether what was said was defamatory?

Charles Morgan, Jr.:

–No, Your Honor.

The issue is did we prove enough in the district court that the articles were written either knowing they were false or with a reckless disregard of the truth or falsity.

Byron R. White:

Whether malice was involved.

Byron R. White:

That’s what the case turns on.

Charles Morgan, Jr.:

That’s correct, Your Honor.

Byron R. White:

Well, that’s what I asked you and you said no.

Charles Morgan, Jr.:

Well then I misunderstood you, and my apologies, Your Honor.

Anthony M. Kennedy:

Well, you don’t like the term malice because for many people it excludes reckless disregard.

So you like to talk about reckless disregard.

Charles Morgan, Jr.:

Your Honor, all I can tell you, and I have seen it occasionally from the courts, say that it was a poor choice of words, and I say this most respectfully, it’s an abomination.

Because I’ve had situations–

Anthony M. Kennedy:

But it’s our words.

[Laughter]

Charles Morgan, Jr.:

–But it’s a bad word, and it’s time to change it.

Because I’ve had jurors say to me afterwards, well, I didn’t see any malice–

Anthony M. Kennedy:

Well, in any event we’re probably getting off the point.

I’m not sure what interest is protected by saying that there is reckless disregard for the truth by altering the quotation in a way that makes it no more defamatory than, or perhaps even less in Justice Stevens’ hypothetical, than the original statement.

What are we protecting there?

Why–

Charles Morgan, Jr.:

–Well, two things.

First, you know, the concern I have here is these words weren’t as defamatory or the… as what he said.

They’re not equivalent.

And I’ll take a moment to show you one.

But the answer is what interests are we protecting?

We’re protecting the right of the speaker.

And as you have said before, and it’s Virginia Power or something like that that we have quoted in our brief, that the First Amendment protects the communication, the speaker, and the public.

And certainly when we’re dealing with quotations, and we’re now talking about public figures and public officials, that certainly he has a right under the First Amendment to expect that he will not have a fabricated defamatory quote.

And that’s our position.

William H. Rehnquist:

–Well, I’m not sure that’s a good way to put it, to say he has a right under the First Amendment.

The First Amendment applies to the Government.

A politician as opposed… relating to the New Yorker, you’re talking about the liability there is based on State libel law.

Charles Morgan, Jr.:

Except that we are confronted with the First Amendment–

William H. Rehnquist:

The First Amendment used as a shield.

Charles Morgan, Jr.:

–That’s right, because he’s a public figure.

And so therefore, as at least he is labeled as a public figure, and so therefore he has a right under the First Amendment to be quoted as he spoke.

William H. Rehnquist:

No.

He has no right as against the New Yorker magazine under the First Amendment.

What you mean to say, I think, is that the First Amendment should not prohibit State libel law from giving him that right.

Charles Morgan, Jr.:

I will accept that, Your Honor.

[Laughter]

Let me now–

Anthony M. Kennedy:

Under your rule, aren’t you going to create serious disincentives to use direct quotes or even to have a tape recorder?

Charles Morgan, Jr.:

–No.

No, Your Honor.

Direct quotes have been going on as long as we know they’ve been going on, and if you read all the material, they all tell you exactly the same thing.

Quote what was said exactly, and if you can’t, then don’t quote that, paraphrase it.

Quote the part that you are satisfied with.

Now please keep in mind, Your Honor, we’re not talking about the mistake.

We’re not talking about the poor reporter who has to get a quote in a hurry and then is putting it into the hot news.

We’re talking about a situation where–

Sandra Day O’Connor:

Well, but you are, because you’re arguing that every misquote gives rise to an inference of actual malice.

And so the reporter who’s in a hurry, or whose tape gets garbled and who relies on memory is then at risk if the person quoted says that isn’t exactly what I said.

Charles Morgan, Jr.:

–At risk, but not liable.

Certainly anytime anybody writes… because again we have still got the reputation to consider.

This is the other side of this tension.

And every time a reporter writes something that is defamatory, certainly there has got to be some at risk so that the reputation is protected.

Antonin Scalia:

Excuse me, you wouldn’t get by a motion for summary judgment unless, I take it, there was clear and convincing evidence that there was an intentional misquote.

Charles Morgan, Jr.:

That’s right.

Antonin Scalia:

Not just clear and convincing evidence of a misquote, but clear and convincing evidence that the misquote was intentional.

You’re not–

Charles Morgan, Jr.:

Absolutely, Your Honor.

If the reporter said look, I did it in a hurry, I thought what I had was right, and I have no other evidence, I lose.

And the chances are I won’t bring the lawsuit.

Charles Morgan, Jr.:

Now, what I would like to talk about is a couple of the quotes so I can dispel any concept that they are the same.

And I want to start first with intellectual gigolo.

And I think it’s important to understand now, these… what the writer did was take two different conversations, and if you look in the appendix you will see that one conversation is tape 7, and one conversation is tape 12.

In tape 7 he talks about his affair with a graduate student, and what he says is that you’re great… she tells him you’re great in the bedroom, but you’re a total embarrassment outside.

Now that doesn’t fit any definition of intellectual gigolo, nor of any gigolo.

All it shows is a young college kid who is a total embarrassment outside of his bedroom.

Then sometime later there’s another conversation in which Mr. Masson is talking about trying to get patients as a psychoanalyst, and he is complaining that, well, nobody will help him.

Nobody will get patients for him.

And he says I was a private asset and a public liability because in their room they enjoyed talking to me, but because I was so junior they would have nothing to do with me outside the room.

That’s not a gigolo, and it’s not an intellectual gigolo.

Antonin Scalia:

–He didn’t… he didn’t say… he was not quoted to say “I am an intellectual gigolo”.

If he was quoted to say “I am an intellectual gigolo”, I can understand how that is defamatory.

He was quoted as saying they treated me like an intellectual gigolo.

How–

Charles Morgan, Jr.:

But it was his words, Your Honor.

Antonin Scalia:

–But how is that defamatory?

I guess you argue that defamation is not an issue here?

Charles Morgan, Jr.:

No–

Antonin Scalia:

Can I think it’s not defamatory and still find for you in this case?

Because I don’t think it’s defamatory.

Charles Morgan, Jr.:

–Of course not, of course not.

No.

Antonin Scalia:

I can’t?

Charles Morgan, Jr.:

It has to be defamatory.

Antonin Scalia:

Oh.

Charles Morgan, Jr.:

Otherwise there is no basis for a lawsuit.

But the point is–

Antonin Scalia:

How is it defamatory of me that somebody else treated me like an intellectual gigolo?

I don’t understand that.

Charles Morgan, Jr.:

–But it’s you who in this fabricated quote is saying,

Charles Morgan, Jr.:

“I was like an intellectual gigolo. “

and it never occurred.

Antonin Scalia:

In context it didn’t mean I was like one.

To them I was like an intellectual gigolo.

That is how they treated me.

Yes, I was going to ask you the same question.

It seems to me that a reasonable interpretation of that quote is that Eissler and Anna Freud thought of him as an intellectual gigolo, and he is reporting that.

I mean, that’s… that’s the sense in which… the fair sense, I think, in which to read that.

And I wanted to ask you, number one, whether I am entitled or we must parse that meaning or whether this is a question for the jury?

Charles Morgan, Jr.:

That’s a question for the jury.

And in California, as you know–

Antonin Scalia:

The reasonable interpretation–

Charles Morgan, Jr.:

–Well, as Your Honor knows, if there are two reasonable interpretations, one defamatory and the other not defamatory, the court will assume it’s defamatory.

So we are certainly entitled to that.

But I go the step further that even the fact of Mr. Masson purportedly saying, two of the highest people in the… psychoanalytic world regarded me as an intellectual gigolo, is defamatory, because it is going to expose him to ridicule, humiliation, and obloquy, and it will certainly tend to harm him in his business.

I’d like to take two more, just if I could, and quickly.

The one about I put it on at the end, or I tacked it on at the end.

The only point I want to bring out about that one is the point… the question that supposedly he side-stepped and didn’t answer, was never asked of him.

And Ms. Malcolm concedes that.

She said no, I never really did ask him.

That was just my state of mind.

And yet she fabricates a whole conversation.

And yet the court says well, there has been no alteration of the substantive content.

It was a total fabrication.

Now this is when we get back to the Carson case, where in the Carson case they talk about that the writer invented this whole discussion between Mr. Carson and the NBC officials.

This is really no different.

She invented a conversation that never took place.

Now, the Ninth Circuit has said the rule is that it has to be wholly fabricated, and I don’t know of any case that really supports a wholly fabricated.

What is the difference whether you fabricate one line of questioning based upon a conversation or based upon something you read in a magazine or a newspaper, as in Carson?

Then I would all–

Byron R. White:

–Every new… every new decision is for the first time, and every new decision doesn’t have any precedent.

So your… but you… so you have to say the court of appeals is just wrong.

Charles Morgan, Jr.:

–I do.

I’ve said that.

Byron R. White:

I know you do, but it won’t be because there isn’t any precedent.

Charles Morgan, Jr.:

This is one time I have no hesitation in saying that absolutely, Your Honor.

I would like to also talk about the greatest analyst who ever lived, and again, the Ninth Circuit says this is supported because he made other boastful statements.

He never said, and you can go through all the tapes there, he never once said that the analyst will ever think he is great.

In fact he said just the opposite.

And she knew all of this, and yet she fabricated this quote.

Now, the Ninth Circuit says, well, that’s okay, because after all, at another point he said analysis is going to stand or fall with me.

But he points out it’s not me, it’s the letters I found, the letters that question what Dr. Freud had said or done.

That’s the type of statements he made, and he said… there’s no question he thought his book was going to do well.

He thought his book was going to be harmful to the profession.

But he said not one analyst will stand up and speak for me.

And yet the quote says they’ll say I’m the greatest analyst after Freud, I’m the greatest analyst that ever lived.

And yet not one thing to support it, but the Ninth Circuit says, well, he had boasted on other occasions.

I think the Court can see the great harm that can befall that.

Antonin Scalia:

Suppose… suppose what he had said was there is no greater analyst than I other than Freud, and she quotes him as saying I am the greatest analyst ever other than Freud?

Charles Morgan, Jr.:

Oh, I think there’s no problem with that, Your Honor.

Antonin Scalia:

Why is there no problem with that?

Charles Morgan, Jr.:

Because all that has happened–

Antonin Scalia:

It’s a misquote, right?

Charles Morgan, Jr.:

–Of course it’s a misquote.

Antonin Scalia:

And she… let’s say she intentionally misquotes it because it takes up less space that way.

Charles Morgan, Jr.:

Well, I don’t think it’ll take up less space–

Antonin Scalia:

Whatever.

[Laughter]

Charles Morgan, Jr.:

–but all that has happened is–

Antonin Scalia:

But she knows, she knows it’s a misquote.

Antonin Scalia:

Okay?

Charles Morgan, Jr.:

–That’s right.

But all that’s happened is she has changed the words, but they are the same words.

Antonin Scalia:

She has changed the words, but they are the same words?

Charles Morgan, Jr.:

That’s right.

She has moved the sequence of them.

Antonin Scalia:

That’s nice.

She has misquoted him.

Charles Morgan, Jr.:

That’s right.

There’s no question she has misquoted him.

Antonin Scalia:

Now, that has to go to the jury, right?

And you say if under State law there is some incremental doctrine, maybe they won’t recover, but a court has to let that go to the jury.

Charles Morgan, Jr.:

No.

And I’m not saying that, Your Honor.

Antonin Scalia:

Well then, why?

Why doesn’t it go to the jury?

It is clearly a misquote.

Charles Morgan, Jr.:

As we put in our brief, and I think it’s the same thing.

Supposing he had said I am the greatest analyst, and she wrote he said I am the greatest therapist.

Antonin Scalia:

Um-hum.

Charles Morgan, Jr.:

They’re basically the same thing.

No change.

As I understood the question you posed to me–

Antonin Scalia:

Is it defamatory in isolation?

Right?

Is it a misquote?

Yes.

Why doesn’t it go to the jury then?

Charles Morgan, Jr.:

–Because the words are the same, except for the one change.

Antonin Scalia:

So built into your doctrine then there is some comparative, if indeed her quotation is a fair summary of what he has said then, it shouldn’t go to the jury.

Charles Morgan, Jr.:

Yes.

But it’s not–

Antonin Scalia:

Right?

Charles Morgan, Jr.:

–It’s not because of incremental damage or incremental harm.

Antonin Scalia:

Why?

Charles Morgan, Jr.:

It’s because of the substantial truth doctrine.

Now, you see, we take the position that a quote is no different than a statement of fact.

Let me give you an example, and forgive me for being from California and doing this.

But I can say that the reporter says I saw Nose Tackle Carter run 60 yards for a touchdown.

Or… and then it quotes Nose Tackle Carter as saying well, I lumbered for 61 yards for a touchdown.

That’s a substantial truth.

There’s nothing really changed there.

That’s so different.

Byron R. White:

Especially if he weighs 315 pounds.

Charles Morgan, Jr.:

That’s right.

[Laughter]

That’s why I couldn’t resist it, Your Honor.

There’s no difference.

But then… let me give you one that was in the amicus brief that I think is important.

I make the statement my mother and father never got married.

You write that I make the statement I am a bastard.

Now there’s, there’s the difference.

And–

John Paul Stevens:

What if it’s just reversed?

What you said was I am a bastard and he wrote my mother and father never got married?

What do you do with that case?

Charles Morgan, Jr.:

–Well, that’s the Hotchner case.

John Paul Stevens:

Well, I don’t know the Hotchner case.

What do you do with the case yourself?

[Laughter]

Charles Morgan, Jr.:

Well, I really don’t think that you can show any damage there.

And I’m hard pressed with that one, there’s no question about it.

John Paul Stevens:

It seems to me it was easy when we asked you at the beginning of the argument.

You said it was clearly… would create an inference of malice.

That’s exactly the hypothetical I gave you.

Charles Morgan, Jr.:

That’s right.

The inference is still there.

I’m not going to win it.

John Paul Stevens:

So it goes to the jury, or does it not go to the jury?

Charles Morgan, Jr.:

I have a feeling in that one that the court would grant summary judgment, and I don’t think any appellate court would–

John Paul Stevens:

Well, what if we thought each of these was just like that?

That the real facts, if you read the whole book, are even worse than the intellectual gigolo.

Charles Morgan, Jr.:

–Your Honor, if–

John Paul Stevens:

If we thought that.

I mean–

Charles Morgan, Jr.:

–I understand.

John Paul Stevens:

–what if we read it carefully and we come to that conclusion?

Charles Morgan, Jr.:

If you thought that the two statements I related were equivalent to Mr. Masson saying I’m an intellectual gigolo, I’ll pack my bags and leave now, you know, because–

John Paul Stevens:

Well, but it’s a question of your theory.

It seems to me you’re giving away your theory.

I had thought that the fact that it is reported someone says something about himself is indicative of hypocrisy, and it’s an altogether different formulation than if someone makes that same statement as a third person.

But you seem to be giving that away.

Charles Morgan, Jr.:

–Well, if I am, I’m getting weary then, because I don’t intend to give that away.

But certainly in that situation that Justice Stevens propounded, I have difficulty with ultimately winning it, is what I’m trying to say.

I still say we’re entitled to the inference of malice.

David H. Souter:

Aren’t you saying two things?

Aren’t you saying, number one, that a misquotation or the fact of misquotation, in and of itself, is competent evidence of malice?

Whether the question of malice goes to the jury depends on what else there is in addition to the evidence of the misquotation.

Charles Morgan, Jr.:

Absolutely, Your Honor.

David H. Souter:

If the misquotation in fact, as you said a moment ago to Justice Stevens, could not give rise to and… could not be a predicate for damage, then in fact you’re really saying on that particular misquotation in the context of the actual misquote no reasonable juror could infer malice from it.

David H. Souter:

Isn’t that all you’re saying?

Charles Morgan, Jr.:

Absolutely, Your Honor.

And I want to sit down now, because I want to save a few minutes.

Thank you.

William H. Rehnquist:

Thank you, Mr. Morgan.

Mr. Farr, we’ll hear from you.

H. Bartow Farr, III:

Mr. Chief Justice, and may it please the Court:

In briefly setting out our position at the outset, I’d like to begin with what I think is an obvious point: that libel law is not concerned with misquotation for its own sake or with setting journalistic standards.

What libel law is concerned with is misrepresentations of substance with a defamatory gist of things.

William H. Rehnquist:

Are you talking about the 50… the laws… the libel laws of the different States now?

H. Bartow Farr, III:

In general, that’s correct.

All the libel laws.

William H. Rehnquist:

You feel you can make that sort of generalization?

H. Bartow Farr, III:

Yes.

I think all libel laws at bottom are concerned with misrepresentations of substance.

Under the balance struck by New York Times v. Sullivan and later cases, the First Amendment gives way only when a writer knows or reasonably suspects or recklessly disregards that the defamatory gist is false.

That’s the same rule for all libel cases, whether they involve quotations or not, and that’s simply the point we’re trying to make here.

The First Amendment protects a writer accused of misquotation unless the plaintiff can show that the writer strongly suspected that he was misrepresenting the gist of what was said.

Antonin Scalia:

So if I’m running in an election campaign and I… and my opponent accuses me of being a racist on the basis of some substantive positions I take, and it’s arguable.

I mean, it’s a reasonable thing to say those positions could be based upon somebody’s being a racist.

It is perfectly okay and not actionable if a reporter who happens to buy into that theory quotes me as saying yes, I am a racist?

There’s no… there’s no action available for that?

H. Bartow Farr, III:

If I understand the hypothetical, Justice Scalia, I don’t think–

Antonin Scalia:

A reasonable person could think, on the basis of my actions and on the basis of my other statements, that I am a racist.

And that’s what the political debate would be about.

I deny it; they say it’s true.

This reporter believes it, and therefore this reporter is permitted to write about me, Scalia said

“Yes, I am a racist. “

H. Bartow Farr, III:

–Justice Scalia, I think, as I say, if I understand the hypothetical, that that reflects an exaggeration of the position that I am trying to make.

I think, quite frankly, the same exaggeration that Judge Kozinski made below.

H. Bartow Farr, III:

What… the point that I am making–

Antonin Scalia:

It’s my hypothetical.

What is–

[Laughter]

H. Bartow Farr, III:

–Well, let me explain that point that I am trying to make, if I may.

Antonin Scalia:

All right.

H. Bartow Farr, III:

The point that I am trying to make is that the inquiry is into whether the writer is knowingly misrepresenting something that was said, the substance of something that was said.

Not somebody’s character in general, not their views on other issues that they were not talking about, but a… the particular subject matter that was talked about and the views expressed by the speaker on that subject matter.

If there is no knowing misrepresentation, thus limited, then it seems to me that no more than there would be if there was a direct paraphrase do you have any situation where the writer is knowingly misrepresenting the defamatory gist of what is being said.

William H. Rehnquist:

So you say that a false statement by a reporter in an article, such as Mr. Masson said this when he in fact did not say it, is… cannot form any basis for inferring malice?

H. Bartow Farr, III:

No, Mr. Chief Justice, I don’t mean to say that.

What I am saying is that simply showing that there may be knowledge of different words is not itself all you need to prove malice.

William H. Rehnquist:

Well, it may… but could it go to the jury as evidence of malice?

H. Bartow Farr, III:

It would depend on the particular circumstance.

There may be circumstances in which a reporter accused of misquotation, where the form of the accusation and the materials about what was actually said would support an inference of knowing–

Anthony M. Kennedy:

What about Justice Scalia’s hypothetical?

H. Bartow Farr, III:

–If I understand his hypothetical–

Anthony M. Kennedy:

Yes, I am a racist is the false quote.

H. Bartow Farr, III:

–I do not understand… I do not understand that there is something particular that has been said in that case that is being represented by the reporter.

Anthony M. Kennedy:

Well, I would suggest that the very, that the very circumstance that someone makes an admission of that sort, allegedly, is itself a fact that is being highly misrepresented.

It’s false.

H. Bartow Farr, III:

If he has made an admission, if… again, maybe I’m not clear on the hypothetical.

What I am understanding you to say is that somebody is drawing an inference about character and simply inventing a quote based on that idea of character.

If you say things… for example, if you say I have a strong prejudice against a particular racial group, and someone, and you are quoted as saying that you are a racist with regard to that particular group, then it seems to me the question is not, well, does that settle the malice inquiry just because the words are different and you can make an accusation that the reporter knew the words were different.

The malice inquiry then turns to the question is there sufficient evidence from that alone, or even combined with other evidence, as Justice Souter suggests, that the writer was knowingly misrepresenting the substance of what you said.

Antonin Scalia:

Mr. Farr, why should it be that way?

Why should… why should an intentional alteration of my words be at my risk?

Why shouldn’t the rule be if you want to… knowingly.

You have to know that you are changing them.

If it’s a good-faith mistake, that’s something different.

Antonin Scalia:

But you know that you are not using my real words.

Why should… why should I be at risk?

It seems to me you should be at risk, if in fact, if in fact it misrepresents me, even if you don’t think it does.

That’s your tough luck.

You should have quoted me exactly.

Then you would have been sure not to be liable.

But if in fact, though you think it doesn’t misrepresent me, it does misrepresent me, why shouldn’t you bear that burden?

H. Bartow Farr, III:

Well, first of all I think that there are two parts to the answer.

The first part, which is the sort of legal analysis, is that I think that creates a separate malice rule for quotations as opposed to other ways of describing what somebody says, such as paraphrases, which focuses on one particular kind of falsity and not the same falsity that is the gist of the–

Antonin Scalia:

I don’t think so.

If, for misquotation, as for everything else, you must know that what you wrote is not true.

H. Bartow Farr, III:

–The question, though, is what exactly is the gist of the action?

What is the core of the action?

The falsity you were talking about is simply a falsity of words.

You cannot win a libel action, you cannot bring an action, you cannot base an action for defamation on simply saying the words are different.

William H. Rehnquist:

But the–

H. Bartow Farr, III:

The falsity you must show is something different.

William H. Rehnquist:

–But this falsity of the gist is something that you have urged, but I don’t know that our cases support it.

H. Bartow Farr, III:

Mr. Chief Justice, I believe they do.

That certainly California law, in order to bring an action, and I’m talking about now the interest that they are pursuing–

William H. Rehnquist:

But we don’t have any question of California law before us.

H. Bartow Farr, III:

–Well, it is the California law that is intersecting with the First Amendment in this case, so there… that’s correct, you don’t have to decide California law, but that is what the California law represents.

But if I could return to the second point I was going to make to Justice Scalia, what I suggest you’re doing in saying any time you knowingly change words to the press, now you are assuming the risk.

You essentially at this point have strict liability for anything that you do if it turns out to change the meaning–

Sandra Day O’Connor:

Well, I think the question is a little different.

If the writer entirely fabricates the language, it’s not a misquote, it’s an entire fabrication to say that Mr. X said I am a racist.

That isn’t what Mr. X said at all.

H. Bartow Farr, III:

–Well, Justice O’Connor–

Sandra Day O’Connor:

And a quote is fabricated to that effect, which under State law would be regarded as defamatory.

Now, is that fact of the fabrication of the quote something that raises an inference of actual malice?

H. Bartow Farr, III:

–The accusation by itself, I think, does not.

Let me suggest that the difference between–

Sandra Day O’Connor:

The quote.

The intentional writing of that quoted language, knowing that it was not said.

H. Bartow Farr, III:

–I think it does not by itself raise the inference of malice as I believe it is correctly interpreted.

And let me give you an example of what I mean from this case.

In his complaint, and this is at page 260, this was the original complaint, petitioner alleged that he had been quoted as saying analysis stands or falls with me now.

This is at page… at the bottom of page 260.

And he says in truth Masson never said such.

So he is accusing Janet Malcolm of a total fabrication with this quote.

Now, fortunately, it turned out that we had absolute evidence of this quote because this quote was on the tape, that he said exactly these same words.

But let us assume for a minute that we were in the posture we are with several of the quotes that are still at issue here, that all that we had was notes representing the substance of this quote.

He would be saying right now that he is entitled to go to the jury, simply based on his denial of those words, even though in fact we have undisputed evidence that on that particular subject about his place in psychoanalysis he said not only analysis stands or falls with me now, but we also have evidence that he said substantially equivalent things.

I suggest that looking at that evidence, which we would not be able to look at under petitioner’s rule, negates any inference that the writer could have knowingly been trying to misrepresent the substance of his views on that particular subject.

David H. Souter:

Why don’t you get to look at the evidence on the question of damage?

H. Bartow Farr, III:

It is… well–

David H. Souter:

The evidence would come in on the subject of damage.

H. Bartow Farr, III:

–It might.

But I’m saying on the subject of malice, I believe it ought to come in on the subject of malice.

Because what… the balance I believe struck by New York Times v. Sullivan between State libel law and the First Amendment is one that looks at knowingly misrepresenting substance, not simply knowingly misrepresenting words.

And his rule essentially would take that case that I just used, based on an accusation of misquotation, and move that case to the jury.

Antonin Scalia:

You have no… I mean, I don’t see this distinction between knowingly misrepresenting substance and knowingly misrepresenting words.

It is knowingly misrepresenting substance to say that I said something which you know I did not say.

The substance is did I say it.

I did not say it.

H. Bartow Farr, III:

It is knowingly… I mean, in that hypothetical case where the writer in fact is proved to have known of the misrepresentation it, arguably I suppose, could be said to be substance, but not defamatory substance.

That’s what I’m saying.

That is what the actual malice test in every other circumstance focuses on.

If I can use an example of a paraphrase, let’s say that instead… take the particular quotes here, anyone you want.

Sex, women, fun, perhaps.

H. Bartow Farr, III:

Let’s say that the sentence read exactly the same way it reads now, except instead of using… putting quotation marks around the word sex, women, fun, it was a paraphrase that said Jeffrey Masson said that if he lived in the Freud house in London he would turn it into a place of sex, women, fun.

Period.

No quotation marks.

The standard for evaluating actual malice in that case, with the paraphrase, would be did the writer knowingly change the defamatory substance of that statement.

And given other statements on exactly the same subject, not things showing his character generally, but on exactly that same subject, what would he do if he lived at the Freud house in London, it’s clear there would be no misrepresentation–

William H. Rehnquist:

No, I don’t think your point… your point of view makes enough allowance for the fact that putting words in someone’s mouth as having said it themselves can hit a lot harder than having some third person describe what they think the person said.

H. Bartow Farr, III:

–Justice Rehnquist, I think that is true, but perhaps less true than it seems at first blush.

I think that usually the most potent effect out of attributing something to a speaker is that you are attributing the content of what he says to the speaker, that he says something derogatory about someone else.

It’s not normally the particular choice of words.

Antonin Scalia:

No, what makes the difference, Mr. Farr, is that you, as the writer, you take yourself out of the picture.

When I read a statement he said that, and it’s under, it’s over your byline, I say well, that’s Farr’s interpretation of it.

But when you said he said, quote, then I say, gee, that’s… he said that.

That’s not… Farr is out of the picture now.

This is what the individual said.

That is a big difference.

I no longer make allowances for your erroneous judgment.

You are asking me to eliminate any possibility of your erroneous judgment.

You’re saying this is what he said, quote.

H. Bartow Farr, III:

But the question, as I understood the Chief Justice to ask it, isn’t the fact that words are attributed to somebody much more powerful.

That is the idea of a quote.

I think there are two different circumstances that have to be compared and kept in mind.

First of all, the words are attributed to him, but other words could be attributed to him, let’s say undisputedly, that would have the same power.

So, for example let’s say, instead of saying sex, women, fun with regard to how he would conduct himself at the Freud house, he was quoted as saying myself and another psychoanalyst would pass women around to each other and we would have a wonderful time and we would… we would open it up–

William H. Rehnquist:

It would show he didn’t know how to use the word “myself”.

[Laughter]

H. Bartow Farr, III:

–Well, I can’t lay that on him.

I think it shows I don’t know how to use it.

[Laughter]

But in any event, I think the power of the sentence would be from the content of the sentence in that particular case, and the fact that he holds those views, that’s what in fact he would do if he went into something that is now a place of scholarship.

The particular choice of words in that particular situation wouldn’t make any difference.

H. Bartow Farr, III:

There may be situations where a paraphrase would be different from a quote, because depending on the nature of the paraphrase it would put a filter in there.

And there may… excuse me–

Byron R. White:

Mr. Farr, you said… suppose the writer, as you’ve just suggested, would write and say he said wine, women, and song.

And he got sued for it.

Now, the plaintiff’s burden of proving falsity would go no farther than proving that he didn’t say that.

H. Bartow Farr, III:

–His… under the plaintiff’s theory here–

Byron R. White:

Yeah.

He says I’m suing you because you said I said something that I did not.

I don’t care whether it’s in quotation marks or not.

I didn’t say that, and I’m going to… and his burden… he’s suing because you misrepresented what he said.

And his burden or proving falsity will go only to proving that he didn’t say it.

H. Bartow Farr, III:

–His burden–

Byron R. White:

He wouldn’t have to prove the falsity of the content.

H. Bartow Farr, III:

–Justice White, I believe he would.

If I understand your question–

Byron R. White:

You mean he would… he really wouldn’t… he really wouldn’t, if he had that house, do what he was… what the reporter said he would?

H. Bartow Farr, III:

–I’m sorry.

He would have the burden of proving both that he would not do that, and that the reporter knew that he would not do that.

Byron R. White:

You think he would have to prove that?

But he is only suing because he has… he has been misquoted.

He’s going to claim that that’s–

H. Bartow Farr, III:

I’m sorry.

Excuse me, I’ve misunderstood.

I don’t think he has to prove what his conduct actually would be in the Freud house.

Byron R. White:

–Exactly.

H. Bartow Farr, III:

I’m sorry, if that’s what you’re saying.

Byron R. White:

Exactly.

H. Bartow Farr, III:

But what he would have to do if he sued… let’s say under my… under the hypothetical I was using, if he did sue and say this misrepresents what I said about what I would do, he would have to show that he did not in substance say that.

That’s what he would have to do.

And he would… his malice inquiry would turn on that substance, not simply on whether there was a difference in the words.

Anthony M. Kennedy:

But Mr. Farr, we have here self valuative statements or alleged statements, greatest analyst, honorable man, intellectual gigolo.

Now, these are quotations of a markedly different character if they are attributed to one’s self.

It’s far different if someone says I am a racist than for a third person to say he is a racist.

That’s far different.

H. Bartow Farr, III:

That’s correct, and I don’t dispute that.

We are not suggesting, Justice Kennedy, that in determining whether there has been a knowing misrepresentation of the substance of what someone has said, that you could use words said by somebody else about him as part of the question as to whether there was a knowing misrepresentation of substance.

What I am suggesting… perhaps it would be helpful at least if I indicated what I think the proper way to go about the inquiry is, because I think it will show that we’re not, for example, talking about as broad a theory as I think were attributed to us.

The… it seems to me that when someone accuses a reporter of misquotation, that the proper malice inquiry is to look at the substance of all of the things that the person has said, particularly to that reporter, on the subject.

Then you would take the disputed parts, because I’m assuming we’re at the summary judgment stage, the disputed parts and the undisputed parts, and make a comparison between them.

If, based on that comparison, one could draw a conclusion that the addition of the disputed words will carry an inference that there is a knowing change in the overall substance of what he said, then it seems to me that you could draw an inference of actual malice.

Antonin Scalia:

To put it differently, if a reasonable person could have given the words that interpretation, even though another reasonable person might not have given them that interpretation, putting it in quotation marks is okay, right?

All it has to do is be a… a reasonable interpretation of the words, right?

And there would be no liability then, so long as it’s one of many reasonable interpretations, to put it in quotes?

H. Bartow Farr, III:

I don’t mean to be ironical, but I don’t think that’s a reasonable interpretation of what I said.

Antonin Scalia:

I thought that that’s what… but I thought that’s what the test is.

Wouldn’t you have to show that… to show malice don’t you have to have knowing distortion?

H. Bartow Farr, III:

You do have to have knowing distortion, but I don’t understand why the mere rational interpretation test would necessarily protect you from that.

It might in some cases.

Antonin Scalia:

How could I show knowing distortion if that is one of several reasonable interpretations of the words?

I… how could I possibly prove knowing distortion?

It’s not the only interpretation, but it is one of several reasonable ones.

H. Bartow Farr, III:

Well, I mean, I suppose I guess it depends on the other issues.

I mean, it seems to me that the basic test, as I say, is whether there is a, sufficient evidence of a knowing misrepresentation of substance.

I think that’s what the proper inquiry should be.

William H. Rehnquist:

Could a… in the eyes of a reasonable juror?

H. Bartow Farr, III:

Pardon me?

William H. Rehnquist:

In the eyes of a reasonable juror?

H. Bartow Farr, III:

That’s correct, if we’re talking about the summary judgment stage, that’s correct.

Anthony M. Kennedy:

Mr. Farr, in this case if we take your test to take all of the substance of what was actually said and compare it to all of the substance of what was quoted, are the use of quote… is the use of quote marks one of the factors that we may take into consideration?

H. Bartow Farr, III:

Again, if I understand the question, I think it would be.

H. Bartow Farr, III:

I would think… let me take an example so that at least what I am thinking of may become clearer.

If… there are cases, I believe, where a choice of words would be so out of character for the plaintiff or would reflect so differently on his character than the content of what was being said, that there may be an additional defamatory gist out of that word, that choice of word itself, the type of sort of trivial example, I guess, that occurs to me is a parson swearing.

John Paul Stevens:

But Mr. Farr, you’re giving us an example of what would constitute clear and convincing evidence of malice.

It seems to me there are two separate questions.

One is whether every misquote is competent evidence of malice, as Justice… Souter points out.

And it would seem to me that the mere fact that there is a misquote and they knew it, that’s some evidence.

Maybe it’s not strong enough to go to the jury or clear and convincing.

But then the second case is whether, is it strong enough to constitute clear and convincing evidence.

I think you’re arguing that it’s no evidence at all.

H. Bartow Farr, III:

Justice Stevens, I don’t mean that to be the argument.

What… perhaps I can be clearer by saying I agree with both parts of what you say.

What I am emphasizing, I suppose, with regard to the first part is that it is important, I think, to understand what the inquiry is, what it is that we are looking at the words for.

And that is all I’m saying.

I think that the purpose of looking at the words is to determine whether there is a knowing misrepresentation of what I keep calling the gist.

The fact that there is a difference in words by itself, if you don’t connect it to that other inquiry, I think means nothing.

I think once you connect it to that other inquiry, then I think it is relevant.

John Paul Stevens:

Well, you can’t say it means nothing if it’s admissible competent evidence.

It’s just not sufficient.

I don’t think you can correctly say it means nothing.

The very fact of misquotation means something.

Your opponent concedes that there are lots of misquotations that are not sufficient to go to the jury.

So I don’t… I’m not sure you don’t… couldn’t really agree on that and not decide this case.

That it certainly is competent evidence, I would think, to show that the quote was different from what was actually said.

But that’s very different from the example of saying I am a racist, and he never said anything.

H. Bartow Farr, III:

All right.

Perhaps I stand corrected.

I think I see a distinction there, but I don’t feel that I need to defend that distinction to answer the point you’re making.

David H. Souter:

May I… I’m sorry, I didn’t mean to interrupt you.

H. Bartow Farr, III:

Of course, Justice.

David H. Souter:

May I try the distinction?

David H. Souter:

It seems to me in your argument you have posited three different kinds of situations, or we all have, I guess.

Number one, you got a third person quote and a misquote attributed to a third person.

You got a first person quote and a misquote attributed to the first person.

And the third example is you’ve got a third person quote, or at least third person evidence, and you misattribute that by means of a first person quote.

If I understand you, you’re saying that when we’ve got simply the misquotation as between two third parties, the mere fact of the misquotation may be, as I was trying to say, competent evidence of malice, but it is not sufficient in and of itself as an abstract matter to rise to the level of clear and convincing evidence of malice.

Is that a fair statement?

H. Bartow Farr, III:

Depending perhaps on the amount of difference, but generally that is correct.

David H. Souter:

Right.

Okay.

Likewise, you have been arguing, I think, that when there are, when we’re talking about differences between two first person quotes, you’re saying, I think you’re conceding again yes, a misquotation can be some evidence of malice, but it is not enough to go to a jury because unless it is just an absolutely egregious example that totally changes the substance it could not rise to the level of clear and convincing.

H. Bartow Farr, III:

That is correct.

David H. Souter:

Justice Scalia’s example is the third person quote, or we’ll say just the non-first person evidence, which is suddenly placed by means of a misquotation into a… into a statement in quotes attributed to the first person.

His argument was when that statement, misattributed to the first person, is defamatory, isn’t that enough in and of itself to constitute sufficient evidence for a clear and convincing finding?

What is your answer to that?

H. Bartow Farr, III:

Um, I guess I’m not–

David H. Souter:

And take his example.

I am a racist, when he never said he was a racist.

Isn’t that sufficient to go to the jury in and of itself as clear and convincing?

H. Bartow Farr, III:

–I may be having more difficulty than I should in keeping the categories apart.

At least what I’m thinking of as I understand that, Justice Scalia’s quotation… I mean hypothetical… is more the second situation.

I mean, at least that’s what I think we are dealing with in this case, is the situation of first person quotations.

I don’t see in this case a situation where the person being quoted has not addressed the subject of any of the quotes we’re talking about here.

He clearly discussed what he would do at the Freud house.

He clearly discussed how Anna Freud and Dr. Eissler viewed him.

He clearly discussed the other things that are being presented.

So it does not seem to me here that you have a situation where you are reaching out to something and saying I am going to bring in substance from somewhere else and attribute it to this person.

What it seems to me this case involves is the case where the reporter says I am dealing with the views of Jeffrey Masson on this subject, here is what I represent him as having said.

Jeffrey Masson, like many plaintiffs, claims he was misquoted.

And I believe the right inquiry is, on the actual malice standard in that case, is there clear and convincing evidence that by representing what he said on this subject or these subjects the writer was knowingly trying to misrepresent what he in fact said.

And all I am saying is that–

Antonin Scalia:

And it’s your position that if not, if the writer knowingly misquoted but thought that in the writer’s opinion that was a fair representation of what the person said, there’s no remedy on the part of the person who is putting quotation marks?

H. Bartow Farr, III:

–But libel law does not provide that remedy, Your Honor.

I am saying that that is the balance struck in New York Times v. Sullivan between knowing misrepresentation of substance and the law of libel of the various States.

Antonin Scalia:

New York Times v. Sullivan had absent a knowing… one knowing lie, namely the lie that the person actually said that.

That is a lie.

What New York Times said is if you did not have any knowing lie at all, you thought everything you said was the truth, then there cannot be a remedy under the First Amendment.

But here you do have one unquestionable lie.

You know that that quote was not uttered.

H. Bartow Farr, III:

Well, let me back up a step.

But New York Times v. Sullivan also said, of course, that threat of sanctions in many cases is almost as chilling as the sanctions themselves.

Here you have the threat of that coming out of any accusation of misquotation, the issue of whether it’s deliberate or not simply is part of the accusation.

William H. Rehnquist:

Thank you, Mr. Farr.

Mr. Morgan, do you have rebuttal?

You have 2 minutes remaining.

Charles Morgan, Jr.:

All I need is a minute, Your Honor.

Following up on that subject, the knowing lie creates the inference of malice.

The question of the substance–

John Paul Stevens:

Does it create clear and convincing evidence of malice in every case?

Charles Morgan, Jr.:

–Yes, sir.

John Paul Stevens:

Will you–

Charles Morgan, Jr.:

I don’t want to go through that because I haven’t got that much time.

But what I wanted to add was the next step is the element of damage.

The substance argument comes only into the element of damage.

Now again, the knowing lie that’s defamatory–

John Paul Stevens:

–But even in your 80-yard run case it’s clear and convincing evidence of malice?

Charles Morgan, Jr.:

–No, that’s right.

John Paul Stevens:

All right, then you don’t mean what you said.

Charles Morgan, Jr.:

Right.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Morgan.

William H. Rehnquist:

The case is submitted.

The honorable Court is now adjourned until tomorrow at 10 o’clock.