The Annual Rush To Judgment

How is the U.S. Supreme Court like pro basketball and sex? They really get exciting in the last two minutes.

Every term, it seems, the justices leave most of the juicy decisions to the end. A case can be argued in the fall or in the spring. It can lead to unanimity or dissent. No matter what, though, only in June does the high court step up its pace. Nothing, it would appear, concentrates the justices' minds so much as the prospect of being stuck in that infernal capital heat after the Fourth of July. Last week the court cut its backlog by more than half, ruling in 14 cases.

In the most eagerly awaited case (at least by the press), the justices unanimously reinstated a $10 million libel suit by psychoanalyst Jeffrey Masson against writer Janet Malcolm. Based chiefly on 40 hours of recorded conversations between them, Malcolm wrote a tough, nasty profile of Masson for a series in The New Yorker that was the basis for a subsequent book published by Knopf. Trouble was, alleged Masson, Malcolm put words in his mouth, attributing quotes to him that destroyed his reputation. Masson allegedly called himself an "intellectual gigolo" and talked about his hope of turning the Freud Archives in London into a place of "sex, women, fun." Malcolm denies she made anything more than minor changes in Masson's words. The disputed quotes aren't on her tapes; she says they were made in unrecorded conversations. Lower courts dismissed the suit on the ground that the quotes, even if invented, were a rational interpretation of Masson's views.

The Supreme Court found otherwise and sent the case back to California for a trial. The justices said the First Amendment does not protect writers who deliberately fabricate quotes that are materially different from what a speaker actually says. Nonetheless, the court said, not every misquotation means a visit from the libel lawyer. It may be ethically despicable to doctor the quotes of a public figure, but it isn't by itself sufficiently reckless to prove libel. "If an author alters a speaker's words, but effects no material change in meaning," wrote Justice Anthony Kennedy, "the speaker suffers no injury to reputation. We reject any special test of falsity for quotations, including one which would draw the line at correction of grammar or syntax." Two justices would have preferred just such a rule. Mocking Kennedy's standard, Justice Byron R. White, joined by Antonin Scalia, wrote in a separate opinion: "The falsity, apparently, must be substantial; the reporter may lie a little, but not too much."

Even though the Supreme Court ruled against a journalist, press advocates cheered the decision. "Our happiness is a sense of relief," says Cameron DeVore, a Seattle lawyer who wrote an amicus brief on behalf of Malcolm. "We were worried about how far this court might go." George Freeman, senior counsel for The New York Times, doubts that the decision will lead him to review stories any differently from before. "The rules of good journalism are stricter than libel laws," he says, "and that remains the case."

But the press may yet have reason to worry. By speaking in terms of "material change in the meaning conveyed," the justices, perhaps unwittingly, seem to be encouraging prospective plaintiffs to second-guess the coverage they've received. Consider, for example, the source who complains she's been quoted out of context. She was interviewed for two hours, but in the story was quoted in a 15-word blurb that she concedes is literally accurate, yet argues is a deliberate distortion of what she meant. "After this case, that person might have a viable cause of action," says Prof. Rodney Smolla of the College of William and Mary law school. The Malcolm ruling "gives ammunition to make that argument."

Among the other decisions last week:

By a 6-3 vote, the court held that judicial elections are covered by the federal Voting Rights Act. That expansive reading, previously applied to legislative- and executive-branch elections, could trigger hundreds of lawsuits in the 41 states that elect judges. The decision makes illegal any practices that dilute the voting strength of minorities. It could change the makeup of state courts throughout the South, where many states have adopted districting systems that have the effect of discriminating. In Texas, for example, 2.3 percent of state judges are black, even though the population is 20 percent black.

In another victory for law-enforcement officials this term, the court, 6 to 3, said that police may continue to ask bus passengers for permission to search their luggage for narcotics. These encounters are allowed so long as the suspect feels free to refuse the request. ..BL.

Splitting 5 to 4, the justices upheld a ban on nude dancing at the Kitty Kat Lounge in South Bend, Ind. The state's concern for morality outweighs the dancers' rights to express themselves. Pasties and G-strings would solve the problem under Indiana law, Chief Justice William Rehnquist wrote for the majority. ..BL.

Last, the court ruled that state judges can be forced to retire at a certain age. (Federal judges serve for life, under the Constitution.) The vote was 7 to 2. The dissenters? Harry Blackmun and Thurgood Marshall - the two octogenarians on the court. Who ever said the justices lacked sentiment?