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The New Yorker - February 11, Fortune Magazine, F. Journal Communications, Inc. Surpris- ingly, in the decade since Masson was decided, only a handful of defa- mation cases decided in federal courts and state high courts have examined claims of fabricated or altered quotations. In Crane v. Arizona Republic,63 the U. Court of Appeals for the Ninth Circuit applied the material alteration test just one year after Masson was decided.
Spokesman-Review, 61 P. Minor, So. Rolling Stone Magazine, F.
In both cases, state high courts determined that plaintiffs did not show actual malice and thus qualified privilege was not forfeited. In Dixon v. The dis- trict court explained that the impact on the reader of allegations of cor- ruption and collusion with organized crime figures dwarfed any reputational damage worked by the implication that one of them was lying.
The court also concluded that the editing of these paragraphs did not demonstrate malice because it did not suggest that either The Ari- W. In Chesapeake Publishing Corp. The court, reversing the judgment of the inter- mediate appellate court, thus found that the district court had not erred in withhold- ing the case from jury consideration.
In Nicholson v. Promotors on Listings,77 John H. The defendant moved for summary judgment. In scrutinizing the allegedly defamatory statements for falsity, the court first considered whether one article contained an altered quotation and decided that the plaintiffs were unable to prove alteration and thus the falsity of the quotation. In the end, the court granted summary judgment for the defendant.
In an unusual case in which a libel plaintiff tried to collect on a British libel judgment, a federal district court rejected the British judgment as repugnant to Maryland law and the U. Telnikoff, Vladimir Matusevitch, a U.
New Yorker Magazine, U. Interestingly, the district court did not narrowly examine the con- tested statements in Matusevitch; rather, it concentrated on the dif- ferences between British and U.
The Maryland Court of Appeals was primarily interested in an- swering the certified question of whether the English libel judgment in favor of Telnikoff was contrary to Maryland law the court deter- mined, as did the district court, that it was and thus did not nar- rowly examine the passage in question. Matusevitch, A. In Southwell v.
See also Shenandoah Publishing House, Inc. In doing so, the Court reaffirmed the correct use of the standard, as articulated and applied in both Time and Bose, as a First Amendment protection al- lowing an author the license necessary to interpret ambiguous sources.
In the Wyoming Supreme Court case Dworkin v. Moldea v. New York Times Co. In a defamation and false light invasion of privacy suit aris- ing from an unflattering book review, Moldea claimed that six partic- ular statements suggesting his incompetence as an investigative journalist were defamatory and false.
Court of Appeals found the contested statements in the book review to be substan- tially true. Bugliosi used Masson in its discus- sion of context, ambiguous sources and the nature of docudramas.
The case involved the non-fiction book And the Sea Will Tell about the infamous Palmyra trials as well as a docudrama based on the book.
Partington claimed he was de- Id. The trials were colloquially named after the uninhabited island of Palmyra in the Pacific where the events at issue in the trial took place. Walker was convicted while Stearns was acquitted. Partington claimed Bugliosi defamed him by falsely implying that he was an incompetent attorney. Pape had held, provides an author license in interpreting ambiguous sources. In the end, the rational interpretation standard, as articulated in Masson, protected the defendant newspaper in its interpretation of an am- biguous source.
American College of Emergency Physicians, the plaintiff contended he was defamed by an allegation that he had been sued for stock fraud. While the court identified the main issue as the substantial truth of that assertion, it actually used the rational inter- pretation standard to rule in favor of the defendants.
George Schwartz, claimed he was libeled in an article published in American Medical News. The article reported that the American Academy of Emergency Medicine was soliciting donations for a defense fund for Schwartz, whom a hospital management company was suing for def- amation. In Pegasus v. The court waffled in deciding whether the contested statement was one of fact or opinion. The court agreed that the state- ment might be construed as factual in its implication that the restau- rant used canned beans in its food.
Because the author did not directly claim, but rather implied, the restaurant used canned beans in its food preparation—and because the restaurant owners admit- ted to keeping a few cans of beans in the kitchen for emergency use—the court, using Masson as support, found the statement to be substantially true and thus protected speech. The court also acknowledged that, when con- sidered in the context of a review, the statement could also be con- strued as opinion and therefore not actionable.
My privacy is be- ing violated. The whole issue is my privacy. In Bressler v. Fortune Magazine, a Tennessee Valley Authority official claimed an article published in Fortune defamed him when it reported allegations that he had tried to cover up safety violations at a T.
Bressler claimed were published with actual malice.
Masson, the only case on which the majority appears to rely in adopting this approach, cer- tainly does not authorize such an approach. In Masson, the Court ad- dressed the standards for proving falsity. Finding that several of the contested statements were capable of false, defamatory meaning and that a jury could find actual malice, the dissent concluded that the majority should have af- firmed the jury verdict and judgment in favor of Bressler.
Fortune Maga- zine may prove more persuasive in future cases than the majority. John v. The article Id. Minor, S. The Fabrication Issue In a recent, well-publicized defamation case involving a now-infamous reporter for the New Republic, the D.
The most substantive discussion cited not the Supreme Court but the court of appeals rul- ing in Masson on remand from the Supreme Court.
The purpose was to compare the reliance of Alfred A. Rolling Stone used the Supreme Court Masson decision to discuss 1 the require- ment that, for a summary judgment motion, the court must draw all inferences in favor of the moving party; 2 the actual malice stan- dard as the proper fault standard for a public figure; and 3 the proper use of the substantial truth doctrine in determining that mi- nor inaccuracies do not constitute falsity if the substance, gist, and sting of the defamatory statement are substantially true.
The defendants were able to prove the substantial truth of four of the allegedly de- famatory statements, notwithstanding the fabrication of quotations, and luckily for Rolling Stone, the plaintiffs were unable to prove ac- tual malice in the remaining statements. New Yorker, F. Masson contributed to victories for defamation defendants in nineteen of the twenty-one federal court and state high court cases analyzed in this article.
In the two remaining cases, as in Masson it- self, factual issues sent the cases to juries for determination of falsity and actual malice.
In all altered quo- tation cases examined in this study, the quotation claims never reached actual malice and, with the exception of Masson itself, never even presented factual issues requiring jury determination. Narrative journalism by its nature tends to interpret and evaluate its subjects for the reader, and traditional journalism increasingly seems to be adopting an interpretive stance. Across the board, the contested statements in these cases were proven to be protected by the First Amendment.
The doctrine and rule even protected a publisher in a defamation suit in- volving admittedly fabricated quotations and facts, although it should be noted that the writer, Stephen Glass, was careful to invent material consistent with the truth of his defamatory claims.
While D. This unusual approach to deter- mining falsity protected the defendant. Reports containing sub- stantive inaccuracies may very well expose them to jury trials and, ultimately, plaintiff victories. For a few issues of narrative technique, Masson has done little to protect authors accused of defamation.
In the process, it created the false impression, through its misleading juxtaposition of quotations spoken at different time periods, that one of the plaintiffs was lying. In defamation cases where issues of narra- tive technique involve anecdotes or juxtaposition, Masson has not immunized the defendant as a matter of law but rather left the de- fendant open to a jury determination of falsity.
And, of course, Masson itself made clear that the First Amendment offers no protec- tion for narrative journalists who substantially alter quotations. As Masson v. To date, Masson has reinforced the already strong press protections inherent in the actual malice standard, at least in cases directly or indirectly involving issues of print narrative technique.
Masson did not, however, immunize defendants for two techniques that may be more closely linked to narrative than the other issues examined in this study: the use of an- ecdotes and the collapsing of time to juxtapose quotations.
Although all of the cases examined in this study involved either is- sues that could arise in narrative journalism or actual issues of nar- rative technique, it bears repeating that many, if not most, of the cases did not involve narrative journalism publications.