Libel claims permitted for some made-up quotes


WASHINGTON -- Journalists and authors who deliberately make up quotes may be assessed heavy damages for libel, but only if the phony quotations harm the source's reputation and have a different meaning than the source intended, the Supreme Court ruled 7-2 yesterday.

In its first-ever ruling on how libel law applies to intentional misquotation, the court compromised between taking away all constitutional protection for deliberately false quotes and allowing complete freedom to put quotes into sources' mouths.

This is the new standard the court laid down under the Constitution's First Amendment: A "deliberate alteration of the words uttered" by a source claiming to have been libeled does not lose its constitutional protection "unless the alteration results in a material change in the meaning" of a statement the source did make.

A "material change in meaning," the court said, amounts to falsity, and libel lawsuits can succeed only if a statement is proved to be false.

The court turned down a plea by The New Yorker magazine, writer Janet Malcolm and book publisher Alfred A. Knopf Inc. for a constitutional rule that would protect fabricated quotes so long as they were a "rational interpretation" of something that had been said by a source.

That approach, Justice Anthony M. Kennedy wrote for the court, "would give journalists the freedom to place statements in their subjects' mouths without fear of liability [and] . . . would diminish to a great degree the trustworthiness of the printed word, and eliminate the real meaning of quotations."

The court said it was refusing to grant broad freedom to manufacture quotes because "quotations may be a devastating

instrument for conveying false meaning."

The scope of the decision brought reactions of some relief from press lawyers, who said they had feared that the court would go further to withhold First Amendment protection for phony quotes.

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, said, "It could have been worse." But, she added that the ruling still remained troubling, because the court appeared to open the way for courts to probe deeply, in libel cases, into what "meaning" a source had intended in talking with a reporter or writer.

The decision also left unclear how much legal risk the press and publishers would take if someone claimed that a quote, while accurate, was taken out of context in such a way as to give a wrong meaning. The court did say, without elaboration, that "an exact quotation out of context can distort meaning."

Two justices -- Byron R. White and Antonin Scalia -- dissented, saying they objected to giving any constitutional protection for deliberate misquotation.

But the majority said it was granting some protection for deliberate misquotation because writers needed some leeway.

The ruling wiped out the pretrial victory of The New Yorker, Ms. Malcolm and publisher Knopf in a libel lawsuit by California psychoanalyst Dr. Jeffrey M. Masson.

The justices concluded that five of the six claimed misquotations in a New Yorker series written by Ms. Malcolm and a book by her published by Knopf raised issues for a jury to decide whether the misquotations conveyed false and libelous meaning.

Joining Justice Kennedy in the majority in Masson vs. New Yorker (No. 89-1799) were Chief Justice William H. Rehnquist and Justices Harry A. Blackmun, Thurgood Marshall, Sandra Day O'Connor, David H. Souter and John Paul Stevens.

The case

An in-house spat over Freudian psychology at a prestigious institute outside London attracted the interest of journalist Janet Malcolm, resulting in a magazine series, a book and now a Supreme Court decision on libel.

Dr. Jeffrey M. Masson, fired from his post at the Sigmund Freud Archives, was interviewed at length for The New Yorker magazine by Ms. Malcolm, and that two-part series and a book that followed led the psychoanalyst to sue for libel, claiming he was misquoted in ways that were unflattering to him as a professional and as a person.

The key misquote among the six he challenged was one in which he was said to have described himself as "an intellectual gigolo" -- something he said he never said at all, and something he insisted he never would have intended either. A lower court found that and the others to be constitutionally protected.

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