Masson v. New Yorker Magazine, Inc. 501 U.S. 496 (1991)

views updated


A case more interesting for its facts than important for its holding, Masson v. New Yorker Magazine, Inc. required the Supreme Court to consider the circumstances in which the press is subject to libel claims for deliberately fabricating quotations.

The case arose from an article written by Janet Malcolm for The New Yorker concerning Jeffrey Masson's tenure as Projects Director of the Sigmund Freud Archives—a tenure abruptly terminated when Masson accused Freud of fraud and declared the "sterility of psychoanalysis throughout the world." Malcolm's article included lengthy quotations attributed to Masson that made him appear less than attractive. As one review of the article quoted by the Court said: "Masson, the promising psychoanalytic scholar, emerges gradually as a grandiose egoist—meanspirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: His own words reveal this psychological profile." Masson claimed, however, that he had not in fact said many of the words that Malcolm put in his mouth. He brought a libel suit, which focused on six statements that Malcolm had attributed to him in the article but that nowhere appeared in the more than forty hours of tape recordings she had made of their conversations.

As the case was presented to the Court, Malcolm conceded for purposes of her summary judgment motion that she had deliberately fabricated the quotations. Masson for his part conceded that he was a public figure under the Court's libel jurisprudence and therefore would have to show at trial that Malcolm published a defamatory statement with "actual malice"—that is, knowledge of the statement's falsity or reckless disregard as to its truth. The question on the summary judgment motion was whether a reasonable jury could find, on the basis of the fabricated quotations, that Masson met this constitutional requirement.

The Court held that the appropriate standard in a case of this kind was whether the deliberate alteration of the speaker's words effected a "material change" in their meaning. If the fabrication did so, and if the changed meaning then caused harm to reputation, even a public figure could recover in a libel action; if, however, the fabrication carried with it no such change in meaning, then dismissal of the suit was appropriate. The Court saw this standard as but one variant of the usual common law principle, now treated as an integral part of the actual malice standard, that "substantial" even if not complete or literal truth will defeat a libel action. Applying its standard, the Court held that five of the six fabricated quotes at issue materially changed the meaning of what Masson had said and therefore could go to a jury.

Although the Masson case received considerable press attention, perhaps because of the striking contrast between the professional reputation of the journalistic defendants and the seriousness of the charges leveled against them, the Court's decision probably will matter little either to the press or to defamed individuals. The press should have little difficulty living with a rule that subjects them to liability for fabricated quotes only when these materially depart from, rather than essentially paraphrase, the substance of what their subjects say; even within the journalistic profession, almost no one believes that this rule imposes a substantial or an unreasonable burden. And the victims of deliberate falsification should have little difficulty recovering under this rule if and to the extent that they have suffered real injury; the Court's standard cuts off suit only when the alteration of the subject's words cannot be thought to have harmed reputation. However sensational, the problem of fabricated quotes lies at the margin of journalistic behavior (indeed, this is precisely what makes the problem sensational), and the Masson decision occupies a similar place in the Court's by now expansive libel doctrine.

Elena Kagan


Bollinger, Lee 1991 The End of New York Times v. Sullivan: Reflections on Masson v. New Yorker Magazine. Supreme Court Review 1991:1–46.