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CHAPTER FIVE ‫ﱡﱡﱡ‬‫ﱮﱭ‬‫ﱡﱡﱡ‬ Masson v. New Yorker in the Early Years When Jeffrey Masson filed his first complaint against Janet Malcolm in 1984, it was simply one in what many scholars have characterized as an unusual explosion of libel cases in the 1970s and 1980s.1 A number of social and cultural forces produced this marked shift in the arena of libel law. According to defamation scholar Rodney Smolla, the proliferation of libel suits was in part a reaction to “a new legal and cultural seriousness about the inner self.” Historically, libel law was meant to redress wrongful damage to what Smolla terms a plaintiff’s “relational interest” in maintaining a good reputation in society.2 It was not meant to provide compensation for psychological or emotional injury. But by the time Masson filed his suit, such compensation had become the larger part of the purpose, even if implicit and unspoken. As Smolla notes, the huge damage awards in libel trials of the era suggested that juries were compensating psychological injury rather than veri- fiable damage to reputation.3 Another cultural force at play was the public libel plaintiff’s sense of being hamstrung by the high constitutional barrier to recovery set by the actual malice standard. An Iowa Libel Research Project study of media libel cases involving public plaintiffs from 1974 to 1984 found that these plaintiffs prevailed in their suits only 10 percent of the time.4 The study highlighted the actual malice privilege as a key explanation for this low public plaintiff success rate. Marc Franklin’s study of libel cases decided between 1977 and 1980 found that plaintiffs , both public and private, prevailed only 5 percent of the time.5 Two studies conducted by the Libel Defense Resource Center, one on media libel cases de122 cided between 1979 and 1982 and the other for 1982 to 1984, found that a substantial majority of plaintiffs’ verdicts continued to be overturned in the appeals process.6 For the most part, such plaintiffs knew they had little chance of prevailing, yet many sued nonetheless. The reason they did, according to data gathered by the Iowa Libel Research Project, was less to win a large damage award than to prove the falsity of the allegedly defamatory statement.7 These plaintiffs largely believed that their lawsuits, even when unsuccessful, not only vindicated their damaged reputations but also penalized the press by forcing media outlets to pay the cost of defending the case.8 Libel cases of the era provide clear proof of the punishing costs associated with defending against a libel suit: ABC spent about $7 million in one libel case; CBS News spent several million defending against a libel suit brought by General William C. Westmoreland;9 and the Washington Post spent well over $1 million in a libel suit filed by the president of Mobil Corporation.10 Even beyond the fear of excessive damage awards, the possibility of facing such high defense costs is enough to chill press expression, especially for publications with small pocketbooks . As Norman Rosenberg has noted, “The fact that defamation law now apparently favored defendants erased some of the stigma traditionally associated with filing a libel suit.”11 Yet another factor contributed to the rise in libel suits: an increasing public disdain for what was widely perceived as the media’s unprecedented corporate power and arrogance. Popular discontent with the press has always existed in America, but in the early 1970s, in the wake of the Washington Post’s muckraking exposés of the Watergate scandal, it became a defining sentiment in the public sphere.12 As the media historian and sociologist Michael Schudson has noted, the Nixon administration actively demonized what it perceived as a liberal press biased against it long before the Watergate scandal broke. The administration promoted the use of the term “the media” to refer to the press because,Schudson suggests,it sounded unpleasant and manipulative.“The administration insisted that the media were not, as they often claimed to be, the voice of the people,” Schudson writes. “Nor were they, as many had traditionally understood them, the voice of wealthy publishers, on the one hand, or organs of political parties, on the other. Instead, they were an independent and dangerously irresponsible source of power.”13 Bob Woodward and Carl Bernstein’s investigation into Watergate, heralded by some as excellent journalism and decried by others as irresponsible, simply fed a negative perception of the press that had already worked its way into...

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