Can I quote you on that?

From the Fall 2010 issue of The News Media & The Law, page 18.

A televangelist’s defamation lawsuit over a television news magazine’s use of a video clip from one of the preacher’s sermons is renewing the legal discussion about journalists’ use — and misuse — of direct quotations.

While the legal test remains the same — adding a word here to clean up grammar, deleting another there to make the flow smoother are still OK, as long as the meaning of the statement is accurate — what statements a jury can consider when determining what the speaker meant is up for debate. And that debate is no longer limited to the print media, where disputes over misquotations often involve “he said, she said” accounts of the same conversation. Rather — as Price v. Stossel demonstrates — the issue can extend to cases in which, paradoxically, viewers actually see and hear the speaker utter the allegedly misquoted words.

“If you take something out of context, you can defame something just as easily as if you make up the words yourself,” Robert Olson, a California attorney representing the Rev. Frederick Price, said shortly after his client’s latest legal victory.

Price’s claim arose in 2007, when defendant ABC aired on its news program “20/20” a story about the efforts of Ministry Watch, a group that monitors various Christian ministries’ financial accountability and transparency. One segment featured a member of Price’s Los Angeles congregation stating that she believes her monetary contributions to the church are used appropriately.

Defendant John Stossel, a “20/20” correspondent at the time, then said, “and yet her pastor, Fred Price, boasts that [cutting to an audio-visual clip of Price speaking], ‘I live in a 25-room mansion. I have my own $6 million yacht. I have my own private jet, and I have my own helicopter and I have seven luxury automobiles.’”

This particular clip was excerpted from a longer sermon in which Price was speaking from the perspective of a hypothetical person who, although wealthy, is spiritually unfilled and unhappy because of his lack of religious faith.

ABC apologized and aired a retraction, but Price sued the network, producer Glenn Ruppel, Stossel and others for defamation. The trial court threw out the case as frivolous under California’s anti-SLAPP statute, which provides for early dismissal of lawsuits that threaten defendants’ constitutional rights of free expression. (Such suits are called strategic lawsuits against public participation, or SLAPP suits.) Because ABC was able to show that Price has wealth comparable to that of his hypothetical subject and has spoken openly about these assets in the past, the clip, as broadcast, was “substantially true” and, thus, entitled to First Amendment protection, the lower court ruled.

The U.S. Court of Appeals in San Francisco (9th Cir.) disagreed, reversing the trial court’s dismissal of the claim and reinstating Price’s suit. Removing the clip from its original context materially altered the meaning of Price’s words such that they could constitute a false statement, the appellate court said. Rather than compare the words Price uttered regarding his hypothetical subject’s assets to Price’s own assets, the trial court should have judged the accuracy of the statement by comparing it “with the meaning of Price’s own words in the context of the sermon he actually delivered,” the appellate court wrote.

Both sides asked the appellate court to rehear the case or, in the alternative, to allow the entire appellate court, as opposed to just three of its judges, to hear arguments and weigh in. The Ninth Circuit denied that request.

ABC and the other defendants claimed that the three-judge panel misapplied the U.S. Supreme Court case Masson v. New Yorker Magazine, Inc. when it held that the “substantial truth” doctrine required the court to compare the clip only to the sermon from which it was excerpted, to the exclusion of Price’s numerous public statements that conform to his statement on the clip. Because Masson involved a defendant’s contention that she never misquoted the plaintiff, proper resolution of that case required a comparison between the challenged quotes and Masson’s actual statements, the defendants argued. However, they added, Masson does not hold that such a comparison is all that is allowed in every case involving an allegedly false quotation.

“This decision risks opening the door to meritless defamation claims every time an interview subject claims he or she was misquoted,” according to the defendants’ petition for rehearing.

The distinction between the two opinions lies in each court’s interpretation of Masson, which all parties to the lawsuit agreed is the legal authority governing journalists’ use of quotations. In that case, Jeffrey Masson — a noted psychoanalyst who was fired as projects director of the Sigmund Freud Archives after becoming disillusioned with Freudian psychology and advancing his own theories — sued writer Janet Malcolm for libel, claiming that a profile she wrote for The New Yorker in 1983 contained altered and fabricated quotations attributed to Masson that he said were false and defamatory.

Although Masson originally claimed that Malcolm inaccurately quoted him numerous times, tape recordings of the interviews revealed he had indeed made statements substantially identical to a number of the disputed ones, and only six were at issue by the time the high court considered the case in 1991. Each of those six purported to quote a statement Masson made during the interview, although no identical statement was contained in the more than 40 hours of recordings. Malcolm countered that not all of her conversations with Masson were recorded, including some the two had while walking together, traveling by car, or when her recording device was inoperable. She claimed to have made handwritten notes of these unrecorded sessions, although Masson said Malcolm never took notes during any of their conversations.

The Supreme Court held that, under its “substantial truth” doctrine, which allows minor inaccuracies to be ignored so long as the gist of the statement remains true, the deliberate alteration of a quotation does not render the statement false unless the alteration “results in a material change in the statement’s meaning.”

“In general, quotation marks indicate a verbatim reproduction, and quotations add authority to a statement and credibility to an author’s work,” the Masson Court wrote. “A fabricated quotation may injure reputation by attributing an untrue factual assertion to the speaker, or by indicating a negative personal trait or an attitude the speaker does not hold.”

Applying this standard to the quotes at issue in Malcolm’s story, the court found that five of the six quotes differed materially in meaning from Masson’s tape-recorded statements so as to create a question for a jury as to their falsity.

An example of this included quoting Masson as saying that archives officials considered him an “intellectual gigolo,” when the recording revealed that he had actually said, “[t]hey felt, in a sense, I was a private asset but a public liability . . . They liked me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis for these important training analysts to be caught dead with [him].”

Another example of a material difference, the Court said, included quoting Masson as saying that he planned to convert Maresfield Gardens, the Freud family home that Masson hoped to occupy after the death of Anna Freud, Sigmund Freud’s daughter, into “a place of sex, women, fun,” when the recording contained him stating, “it was buddy-buddy, and [Masson and a London psychoanalyst he had met] were to stay with each other and [laughs] we were going to pass women on to each other, and we were going to have a great time together when I lived in the Freud house. We’d have great parties there and we were [laughs] going to really, we were going to live it up.”

The Supreme Court found no material difference between Masson’s tape-recorded statement that he “just liked it” and Malcolm’s quotation that “it sounded better” as Masson’s explanation for changing his last name.

The Supreme Court sent the case back to the trial court so that a jury could decide whether these five materially altered quotations amounted to falsity. That jury found that Malcolm had fabricated all five quotations attributed to Masson and that he had been libeled by two of them.

The jury deadlocked on the amount of damages he should receive and the judge — finding that the issues of liability and damages were sufficiently linked that they could not be severed — ordered a new trial.

The second jury found that only two of the five quotations attributed to Masson were false and only one was defamatory. The panel also found that Malcolm did not act with actual malice, or knowledge of falsity or reckless disregard for the truth, the standard that public figures like Masson must meet to recover any libel damages. Thus, after eleven years of litigation, Masson was awarded nothing.

Lee Levine, a Washington, D.C., media lawyer who is not involved in the ABC case but helped author a friend-of-the-court brief on behalf of Malcolm when her case was before the Supreme Court, said Malcolm had raised a similar defense at one point: that Masson had made public statements to the effect of those in dispute on prior occasions. Such previous statements were relevant to help determine whether the altered quotation substantially changed the speaker’s meaning, the legal standard used to judge all cases of inaccurate or fabricated quotations, Levine said.

“The law is, under Masson, that a change in a quote, to be deemed defamatory, has to affect a material change, a change that reflects poorly on the speaker when what he actually said would not have,” Levine said.

Anthony Glassman, Price’s co-counsel, said the three-judge panel of the Ninth Circuit correctly followed Masson and found just that.

“The context was radically changed 180 degrees from what [Price] said to how they made him appear,” the California lawyer said.

Glassman also dismissed the defendants’ “substantial truth” argument, noting that, even if the defendants relied on previous statements Price made regarding his own assets, they still do so inaccurately and out of context, because Price has never publicly “boasted” about his wealth, as Stossel stated when he introduced the clip of Price’s sermon.

“In every statement ABC put in the record regarding [Price’s] lifestyle and what he owned, in every one, he attributed whatever economic success he has had to his devotion and to his spiritual life,” Glassman said.