Literary Journalism on Trial: Masson v. New Yorker and the First Amendment

Notes

NOTES Introduction: Journalism, Libel Law, and the Problem of Facts 1. Alex S. Jones, “Author Sues Magazine,” New York Times, 2 December 1984, sec. 1, 39; Masson v. New Yorker, Complaint for Defamation and Invasion of Privacy no. 84–7548, filed in the U.S. District Court, Northern District of California, 29 November 1984. Copy received from the National Archives and Records Administration’s San Bruno Archives in California. 2. Janet Malcolm, “The Annals of Scholarship: Trouble in the Archives—Part I,” New Yorker, 5 December 1983, 59–152, and“Part II,”12 December 1983, 60–119. 3. Masson v. New Yorker,686 F.Supp.1396 (N.C.Cal.1987) (granting summary judgment to defendants), aff’d., 895 F.2d 1535 (9th Cir. 1989), rev’d. and remanded, 501 U.S. 496 (1991), 960 F.2d 896 (9th Cir. 1992) (affirming summary judgment for Knopf, remanding case for trial for Malcolm and the New Yorker), aff’d., 85 F.3d 1394 (9th Cir., 1996). In June 1996 the Ninth U.S. Circuit Court of Appeals upheld the 1993 and 1994 trial verdicts which found in favor, respectively, of the New Yorker and Janet Malcolm. 4. New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”). 5. Jane Gross, “On Libel and the Literati: The New Yorker on Trial,” New York Times, 5 May 1993,A1. 6. Malcolm, “The Annals of Scholarship: Trouble in the Archives—Part I,” 59, and “Part II,”60. 7. Jeffrey Masson, telephone interview with author, 15 January 2005; Jane Gross,“Profile Writer Has Last Word in Defense against Libel Suit,” New York Times, 25 May 1993, A14. 8. Masson v. New Yorker, Complaint. 9. Jane Gross, “Jurors Decide for Psychoanalyst but Split on Award in Libel Case,” New York Times, 3 June 1993,A14. 10. Masson v. New Yorker, 686 F. Supp. 1396, 1407. 11. Masson v. New Yorker, 895 F.2d 1535, 1536. 12. Masson v. New Yorker, 501 U.S. 496, 525. 13. Masson, 960 F.2d 896, 898, 902. 227 227 227 14. “Retrial Is Set in Libel Case, but Without Magazine,” New York Times, 10 September 1993,A20; Howard Mintz,“Judge Says New Yorker Libel Case Is Best Settled,”Recorder, 4 August 1993, 3; Howard Mintz, “Judge Orders New Trial in Masson’s Libel Case,” Recorder, 10 September 1993, 3. 15. Masson v. New Yorker, Special Verdict no. C-84–7548 EFL, 2 November 1994, U.S. District Court, Northern District of California, 4–5. 16. Masson v. New Yorker, 85 F.3d 1394. 17. Jane Gross,“At Libel Trial, Speaking Style Becomes the Focus,”New York Times, 19 May 1993,A16. 18. Ibid. Ralph Blumenthal,“Freud Archives Research Chief Removed in Dispute over Yale Talk,”New York Times, 9 November 1981, B1; Eva Hoffman and Margot Slade,“Freud’s Legacy: Totem and Taboo,”New York Times, 15 November 1981, sec. 4, 7. 19. Gross,“At Libel Trial, Speaking Style Becomes the Focus,”A16. 20. Ibid. 21. Janet Malcolm, afterword to The Journalist and the Murderer (New York: Vintage Books, 1990). See also Janet Malcolm,“The Morality of Journalism,” New York Review of Books, 1 March 1990, 19. 22. Janet Malcolm, In the Freud Archives (New York: New York Review Books, 1997), 36. 23. Masson, 501 U.S. at 503. 24. Ibid., 503–4. 25. Roxanne Roberts and Annie Groer, “Writer’s Notes Suddenly Appear,” Washington Post, 26 August 1995, D1. 26. Jane Gross, “Psychoanalyst and Lawyer Duel over Nuances at a Libel Trial,” New York Times, 13 May 1993,A20. 27. Federal Rules of Civil Procedure 56(c). See also Malcolm’s discussion of this issue in afterword to The Journalist and the Murderer, 151n. 28. Malcolm, The Journalist and the Murderer, 153–55. 29. John C. Hartsock, A History of American Literary Journalism: The Emergence of a Modern Narrative Form (Amherst: University of Massachusetts Press, 2000), 55–57. 30. For discussions of defining characteristics of narrative journalism, see ibid. and Mark Kramer, “Breakable Rules for Literary Journalists,” in Literary Journalism: A New Collection of the Best American Nonfiction, ed. Norman Sims and Mark Kramer (New...