For the jurors, it may be misery. For the rest of us, for the third time in a decade, it’s the Libel Trial of the Century. There’s no ax murderer or celebrity rapist in the dock to capture our gaze only the most august magazine in the land. And nothing entertains more than a good old-fashioned courtroom rhubarb between a media titan and an impassioned plaintiff hellbent on vindication. This week, in San Francisco, begins the civil trial of the flamboyant psychoanalyst Jeffrey Moussaieff Masson vs. the staid Janet Malcolm and The New Yorker. Masson and Malcolm will be first to take the stand. Not since 1985, two lawsuits played to packed houses in Manhattan– Gen. William Westmoreland’s against CBS and Israeli Gen. Ariel Sharon’s against Time Inc.has there been so much fireworks anticipated from the arcana of libel law. The central question again: can the public trust what the press reports?
Masson v. Malcolm–10 years in the making and $10 million in damages on the line-is a tale of sex, lies and more than 40 hours of audiotape. Masson has long been a renegade in psychoanalysis. In the early 1980s, he took on the pillars of the profession, challenging Freud’s teaching that neuroses stem from the mysterious world of the unconscious. His heretical views led to his dismissal as projects director of the Sigmund Freud Archives in New York. Masson refused to bend. “If I’m right,” he said at the time, “they’ll have to recall every patient since 1901. It would be like the Pinto.”
This all fascinated Malcolm, something of an iconoclast herself. She went to see Masson, who had returned to Berkeley. He loved to talk in any event; and Malcolm offered him a respectable venue to rehabilitate his reputation. Over seven months she conducted intensely personal interviews–in his California home, in her New York kitchen, in the car, on the phone. But in 1983, Malcolm came out with a damning 48,500-word profile of Masson in The New Yorker (and later in a book for Knopf). She portrayed her subject as an intellectual fraud and a narcissistic womanizer.
Masson cried that he had been “totally betrayed.” He was particularly incensed about five quotations attributed to him, including his self-description as “an intellectual gigolo” and his hope of turning the Freud Archives into a place of “Sex, women, fun.” Masson says the quotes are her inventions, a fabrication that’s made him a pariah in his profession. Malcolm says he said what she said he said. Can she show it, though? Why, he asks, do the two above quotes, for example, not appear on the many hours of recordings? Malcolm says her machine broke down. Now a jury, over the next 3 1/2 weeks, must figure out who’s right and, if it’s Masson, how much cash he gets.
That classic “one of ’em must be lying” confrontation, of course, is the fulcrum of the trial. Each will try to make the other look like a fool. But there is enough irony and farce to satisfy the most discriminating of literary, legal and tabloidal tastes. Even the lawyers, all California prizefighter litigators, are a colorful troupe. Charles Kenady, representing The New Yorker, is a perfect knockoff of Jimmy Stewart. Charles Morgan, for Masson, is the dean of Bay Area libel lawyers; from the side, he could be Vincent Gardenia. The New York Times plans to cover the proceedings every day; Letterman could have a field day with the material, and so could The New Yorker itself if it had the whimsy to attend. The old New Yorker might’ve called it “Annals of Extraordinarily Expensive Litigation.” The press has 30 seats reserved so far in the gallery.
Malcolm herself won’t intentionally contribute to the spectacle. She hates the limelight and last week did all she could to slip into and out of the courtroom. The master interviewer doesn’t believe in being interviewed. “I’m not very good in front of cameras and tape recorders,” she’s been quoted many times as saying. “I’m a writer.”
Yet her own pen at the very least could open her up to a charge of hypocricy. In another New Yorker series, in 1989, Malcolm described the treacherous relationship between Jeffrey MacDonald, the former Green Beret convicted of murdering his pregnant wife and two daughters, and Joe McGinniss, who contracted with MacDonald to do a book (“Fatal Vision”) on the case. In “The Journalist and the Murderer,” Malcolm wrote that every journalist is a con man who betrays his subject “without remorse.” At the trial, Masson’s lawyers hope to persuade the judge to let the jury hear all this, to hoist Malcolm with her own petard. (Another twist: Malcolm’s lawyer is none other than MacDonald’s lawyer, Gary Bostwick.)
If Malcolm writes and writes, Masson talks and talks. His lawyer has ordered him to shut up during the trial; but during a morning of jury selection last week, his fiancee had to restrain him to keep him quiet. The bride-to-be is one Catharine MacKinnon, the prominent feminist legal theorist and anti-pornography crusader. She’ll attend the whole trial and may even get to testify as a character witness. Theirs is a relationship already chronicled in an embarrassing New York magazine cover story; it promises to be a sideshow of the trial.
For Masson to win, he must do more than prove that the quotations were fabrications. In its various pretrial incarnations, Masson v. Malcolm made its way to the U.S. Supreme Court in 1991. The justices ruled that fabricated quotes are libelous only if they result in a “material change” in the speaker’s meaning. Malcolm may win simply if she convinces the jury that Masson said enough other things that in effect ratified the contested quotes. The ethics may be sloppy, but constitutional law gives more leeway to journalists. Still, The New Yorker (and its writer) may be none too pleased to have its editorial practices subjected to courtroom scrutiny: why is Malcolm’s work edited by her husband, Gardner Botsford? How much are writers allowed to condense or merge different interviews? If the magazine’s famed fact checkers are challenged by the person quoted, who prevails?
As it is, the late, great editor William Shawn will be posthumously taking the stand for Masson. Read into the record will be his sworn statement that Malcolm assured him that “she had everything on tape.” (Malcolm denies the conversation.) It’s a potentially devastating piece of evidence for Masson’s side. Dead men may or may not be liars, but they aren’t available for jury inspection. None of the jurors are regular readers of The New Yorker, but they still could give great weight to what the longtime editor said. Some of those who lament the passing of the old New Yorker-those who weep at the mention of Tina Brown’s name–say that Shawn would cringe if he had a current subscription. But what if he had to watch his own beloved publication stripped bare in the courtroom of public impressions? Masson seeks to restore his reputation. But it’s the old New Yorker’s that’s really on the line. He said, she said:
