Jury finds New Yorker writer acted without actual malice

CALIFORNIA — In early November, after eleven years of litigation, a U.S. District Court jury in San Francisco ruled in favor of journalist Janet Malcolm in the retrial of a libel suit brought against her by psychoanalyst Jeffrey Masson.

Masson sued Malcolm for libel after she wrote an article about the psychoanalyst in a 1983 issue of New Yorker magazine. In the article Malcolm quoted Masson saying he would turn the Sigmund Freud Archives into a “place of sex, women, fun” and that he was considered an “intellectual gigolo” by his peers. Masson contended that five quotes attributed to him in Malcolm’s article had been altered or fabricated and libeled him.

In June 1993 the U.S. District Court in San Francisco ruled in favor of Masson, but the jury was deadlocked on the amount of damages Masson should receive. After three days of deliberations, U.S. District Judge Eugene Lynch dismissed the jury. In July 1991 both parties asked the judge for a retrial.

A retrial was ordered, and in early November 1994 the jury ruled that two of the five quotations attributed to Masson were false, and one was defamatory. However, the jury found that Malcolm did not act with actual malice — she neither knew that the defamatory statement was false nor acted with reckless disregard as to its truth or falsity — and Masson, a public figure, therefore could not recover libel damages.

The U.S. Supreme Court heard an appeal of pre-trial motions in the case in June 1991, ordering that it be sent back to the lower courts to determine whether altered quotes convey the same meaning as the words the speaker used. In a 7-2 decision, the Supreme Court held that altered quotations are not necessarily proof of actual malice.

The New Yorker was dropped as a defendant in the case after the original jury found that the magazine was not liable. Malcolm was the sole defendant in the retrial.

Masson’s attorney told the Associated Press he will ask the judge for a new trial, and if the judge refuses, he will appeal to the U.S. Circuit Court in San Francisco (9th Cir.). Masson’s attorney told the wire service that the trial judge improperly instructed the jury that Masson had to prove not only that he didn’t say the words attributed to him, but also that he didn’t say something similar on other occasions.

(Masson v. Malcolm; Media Counsel: Gary Bostwick, Santa Monica)

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