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Libel Verdict Sends Tremors Through US Newsrooms

Strong cautionary message sent, though judge could still declare The New Yorker case a mistrial

JURY findings here that writer Janet Malcolm libeled psychoanalyst Jeffrey M. Masson with two quotations in a New Yorker magazine article are reverberating across the front pages of American newspapers.

Since the eight jurors could not agree on monetary damages last week, the case awaits Judge Eugene F. Lynch's decision on whether the entire case should be retried or the libel verdict will stand while the damages portion is reargued. (The jurors reportedly deadlocked over whether to award Mr. Masson $1 or $1 million.)

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Even though the specter of a possible mistrial hangs over the case, analysts say the fact that the jury concluded that Ms. Malcolm defamed her accuser sends powerful warning signals to journalists everywhere.

"In a hard-fought and well-tried case, eight fellow citizens felt the evidence showed libel," says Jay Folberg, dean of the law school at the University of San Francisco. "A very strong, cautionary message regarding the diligence required of reporters in extensive interview situations is there regardless of where this case goes from here."

The verdict is a wake-up call to journalists on the penalty for fabricating quotes, but the case is not expected to set a legal precedent or alter the way most reporters work, say several specialists in media and law.

"The case serves the useful purpose of reinforcing what journalists should be doing - not making stuff up or manipulating quotes to where they are not recognizable," says Tom Goldstein, dean of the Graduate School of Journalism at the University of California, Berkeley. "But the case revolves around such an idiosyncratic magazine and such an idiosyncratic reporter that lessons are hard to extrapolate or to generalize."

Media-law specialist Thomas Schwartz, an associate professor of journalism at Ohio State University, Columbus, expects the Malcolm verdict to set off discussions in trade publications and newspaper offices. "But I don't think it will be one of the hallmarks of First Amendment [freedom of the press] jurisprudence," he says.

The eight jurors in Federal District Court here ruled that Malcolm had indeed libeled Mr. Masson in a two-part series Malcolm wrote for The New Yorker in 1983. The articles, totaling 48,500 words, explored Masson's unconventional views on psychoanalysis and were later published as a book. They portrayed Masson as narcissistic, a womanizer, and an academic flake.

MASSON sued in 1984, claiming that the stories were a "total distortion" of interviews that spanned six months and occurred on both coasts. The case has been amended four times and dismissed twice. In 1991, the United States Supreme Court reinstated the case in a landmark decision that set new standards for libel.

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"The Supreme Court held that tampering with quotes could constitute actual malice," Mr. Schwartz says. "That is the ruling that is important to remember from this case, because it opened the door for these proceedings and others like them."

"Actual malice," has always been difficult to prove, say media analysts, because it deals with motives and intentions about which convincing evidence is difficult to obtain. The enduring standard - defined as "knowing falsehood," or "reckless disregard for the truth" - goes back to the most famous libel case in history, New York Times v. Sullivan in 1964.

To show tampering and reckless disregard, prosecutors tried to portray Malcolm as a writer who filled in the blanks of her magazine narrative with fabrications because of lapses in memory and organizational missteps.

"The jury bought the argument that a basic tenet of journalism had been violated," Dean Goldstein says, "that journalists should not make things up."

Though Masson's attorneys said justice had prevailed when the guilty verdict was announced June 3, The New Yorker magazine was absolved of wrongdoing.

"The jury held that Malcolm was an independent contractor and that The New Yorker did not show any malice in the instructions they gave her or in the use they made of her material," Dean Folberg says.

But the magazine stood by its writer. "The New Yorker continues to stand by the integrity of her work and will continue to publish it with pride," editor Tina Brown said in a released statement. "We do not believe that Janet Malcolm libeled Jeffrey Masson in her articles."

Such comments have generated several articles in major publications in which writers and editors debate considerations of style, the creation of narrative, fact checking, and the embellishment of quotes.

"Malcolm is part of a great tradition of new journalists like Truman Capote, Tom Wolfe, and Norman Mailer," Schwartz says, "where writing is more important than reporting." Such books as "In Cold Blood" (Truman Capote) and "The Right Stuff" (Tom Wolfe) tell great truths about society despite the use of composite characters, he says.

"But they are in a separate class from Pulitzer Prize-winners [like] David Broder and Bob Woodward," Schwartz adds. "Readers may hold writers of these differing styles to different standards, but this case shows that if you get sued, you face the consequences."

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