When Is A Quote Not A Quote?

Justices hear the Malcolm case - as the press hides

Who else but writer Janet Malcolm could offer up such a miserable co-nundrum to the always-smug, ever-righteous press: defend the outer limits of the First Amendment or avoid the obloquy of siding with a journalistic pariah? In a key case before the U.S. Supreme Court this week, virtually all the press has chosen the safe way: it has abandoned her.

Last March Malcolm enraged other writers when she argued in The New Yorker that every journalist is "a kind of confidence man" who engages in "seduction and betrayal." The two-part article examined the poisoned relationship between author Joe McGinniss and "Fatal Vision" killer Jeffrey MacDonald. The trouble was that Malcolm-in either hypocrisy or self-delusion-never bothered to mention that her thesis could have applied to herself.

Eight years earlier Malcolm spent more than 40 tape-recorded hours interviewing Jeffrey Masson, a psychoanalyst, about his controversial views on Freud. Based on the conversations, she eventually wrote a New Yorker series and then a book for Knopf. Soon after publication Masson accused Malcolm of a mortal journalistic sin-deliberately making up quotes for him. He filed a $10 million suit, contending that the phantom quotes skewered his reputation. Among them: colleagues thought of him as an "intellectual gigolo," and his hope of turning the Freud Archives in London into a place of "sex, women, fun." Malcolm denied that she had made anything more than minor changes in Masson's words. While the alleged quotes are not on the tapes, Malcolm has maintained they were made in unrecorded parts of conversations. Lower federal courts never ruled on Masson's charges. Instead, they dismissed the libel suit on the ground that, even if Malcolm had put words in Masson's mouth, the words didn't alter the basic truth of what Masson said elsewhere.

Now the Supreme Court hears the appeal (although it, too, won't actually consider if Malcolm made anything up). In a case that could cut across the court's ideological fault lines, the justices must decide if doctored quotes, by themselves, may be sufficient evidence of the recklessness that libel plaintiffs must prove. If they are-and Masson's suit is revived-the case will go to trial. It's a vital First Amendment question because it could reorder how journalists do their job: how much judicial second-guessing will there be of all quotes?

Despite its importance, Malcolm is going it virtually alone. "There was a lot of ambivalence," says John Kiernan, a First Amendment lawyer in Manhattan. " write a brief when the unstated premise is that we endorse false quotes?" In most press cases, the Big Media circle up the delivery wagons to protect their own by writing amicus curiae (friend of the court) briefs. Yet only Time, the American Civil Liberties Union and an array of media trade groups, movie studios and biographers (including Edmund Morris) are assisting Malcolm. In a libel case last year, more than 20 organizations-including the big dailies, wire services and networks-signed an amicus brief. Even unsavories get support-as when Hustler was sued by Jerry Falwell. "Normally they hold their noses and sign no matter what," says Michael McDonald of the conservative Center for Individual Rights, which filed a brief for Masson.

Lawyers for Malcolm had hoped that influential newspapers would sign on with one of the four amicus briefs that circulated. One industry brief in particular was targeted for newspapers, but it turned editors off in part by explaining the exigencies of taking accurate notes in interviews. NEWSWEEK has learned that at least five news organizations-The New York Times, The Washington Post (which owns NEWSWEEK), the Chicago Tribune, Knight-Ridder and Hearst Publications were asked to sign on. All refused and in the end only The Point Reyes Light, a small, respected California weekly, joined. "This was not happenstance and oversight," says one prominent media lawyer who was consulted about the brief. (Such unattributed quotes are another questionable journalistic device, but that's another story.)

Only the newest of the New Journalists would suggest that outright invention between the quote marks is legitimate. Garbled syntax, "ers" and "ums," sentences without end, are reasonable gray areas for the reportorial cleanup crew. But doing much more inside the " " violates convention and punctuation-and amounts, as a dissenting lower-court judge observed, to lying in print. Mr. Lincoln wasn't the litigious type, but he likely would have had problems with a reporter whose Gettysburg story included this quote, "Oh, it was about 90 years ago, give or take three.. ."

The immense difficulty with that conclusion is figuring out a way to write it into constitutional law. Not all ethical misdeeds deserve to be punished by multimillion-dollar verdicts. Is there really a way to deter what Janet Malcolm stands accused of doing without imperiling other subjective judgments endemic to the craft? Journalists routinely must whittle down to the essence of a quote. Only presidents and Dodger managers speak in sound bites. What of the words left out at both ends of the quotation marks? What of the whole sentences omitted? And, most troubling, what of the writer's own words that adorn the quote? The road from the simple-seeming Malcolm case to those hypothetical others isn't so long.