It is not often that the Supreme Court is presented with a case in which the evidence consists of such titillating remarks, allegedly made by the plaintiff, as his likening himself to “an intellectual gigolo,” desiring to convert Anna Freud’s house, the repository of the Freud Archives, into “a place of sex, women, fun,” and anticipating being acclaimed “the greatest analyst who ever lived”—after Freud, to be sure.

These are among the quotations attributed to Jeffrey Masson by Janet Malcolm in two articles in the New Yorker in December 1983 and in her book In the Freud Archives published by Knopf the following year. Masson denies having made these statements and charges that they are malicious and libelous. Malcolm claims that he did make them although they do not appear on her tapes, and in any event that they are neither malicious nor libelous because they accurately reflect other comments by Masson that do appear on the tapes. (The other defendants in the suit are the New Yorker and Knopf.)

The Court will, of course, address itself primarily to the legal issue of libel, but it cannot avoid raising other matters of concern to historians and biographers as well as journalists, and to the public as well as the professional and commercial interests—publishers, editors, writers, broadcasters—who have an obvious stake in this case (and who have filed amicus briefs in support of the defendants). One intriguing issue, which loomed large in the oral argument before the Supreme Court (as it did in the earlier decision of the Court of Appeals), involves the distinctive character of a quotation and the propriety of altering or inventing a quotation, however similar it might seem to views expressed in other words.

To the Court the question is one of legal propriety. Does the altered or invented quotation give rise to the charge of malice and thus libel? To the public the question is one of moral propriety. Do writers have the right to alter or invent quotations, thus not only misrepresenting their subjects but deceiving their readers? And beyond this moral issue is the still larger “metaphysical” issue, as the New York Times called it, of “the nature of truth itself.” Is there any essential difference between quotation and interpretation (as conveyed by means of paraphrase), or between a quotation denoting the literal truth of what was actually said and one connoting a “higher,” “deeper,” or more “essential” truth of what was presumably meant?

If the case has ramifications that go well beyond the legal issue, it also has intriguing personal elements that the public, if not the Justices of the Court, may find relevant. (Since some of these personal details are contained in the briefs themselves, the Justices may choose to disregard them but cannot be ignorant of them.) There is, for example, Masson’s account (which appears on tape and is cited in the Petition for Certiorari) of how he first became interested in psychoanalysis. He had an unusual career, first as a professor of Sanskrit, then as a psychoanalyst and a director of the Freud Archives, and finally as a prominent critic of Freudianism. But long before, while still a student at Harvard, he had realized that he was “very neurotic,” having a compulsion to sleep “with every woman I could meet.” It was to cure that “total promiscuity,” he told Malcolm, that he entered therapy and thus became acquainted with psychoanalysis. He also told her that he had slept with “close to a thousand” women, something “between 700 and 1,300.” It is not clear how much of this number was reached before he entered therapy, but he evidently remained something of a womanizer throughout his career—which may have a bearing on the “intellectual gigolo” quote, as well as on his subsequent disaffection with psychoanalysis (assuming that psychoanalysis failed to cure his own neurosis).

Malcolm’s history is equally curious, and has an even more curious bearing on this case (although this does not emerge in the briefs). Five years after the publication of her book on Masson, and about the time that the Court of Appeals was hearing the case, Malcolm wrote another two-part series of articles in the New Yorker which was also later published as a book, The Journalist and the Murderer. This is a scathing critique of an other journalist, Joe McGinniss, who had written a book about another doctor, Jeffrey MacDonald, who had been convicted of murdering his wife and two children. McGinniss, Malcolm claimed, had deliberately and duplicitously gained the confidence of MacDonald by giving him the impression that he believed in his innocence, only to portray him as guilty in his book. McGinniss’s Fatal Vision was published several months before Malcolm’s In the Freud Archives; MacDonald brought suit against McGinniss, as Masson did against Malcolm. The notable difference between the two was that the suit against Masson was decided in Malcolm’s favor, whereas that against McGinniss ended in a hung jury; it was settled afterward by a $325,000 payment to MacDonald (although McGinniss conceded no wrong).

Malcolm’s book on McGinniss opens with a powerful indictment not so much of McGinniss as of the entire journalistic profession—her profession as well as his. “Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse.” It does not take a trained psychoanalyst to interpret this passage (and the book as a whole) as a form of self-confession and self-accusation, since this precisely describes Malcolm’s own relationship with Masson. In an afterword to the book, Malcolm denies this; but again it does not take a psychoanalyst to interpret that denial in psychoanalytic terms, a denial of reality that is a covert admission of the reality. (The whole of Malcolm’s book, including the afterword, is heavily psychoanalytic, so that she can hardly object—although she does—to being psychoanalyzed in turn.)¹

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If the McGinniss book reveals, as Malcolm pretentiously puts it, “the canker that lies at the heart of the rose of journalism,” Malcolm’s book on Masson may reveal a far more lethal canker. For it raises the issue not only of the misrepresentation involved in gaining the confidence of the subject, thus inducing him to say more than he would otherwise have said, but the misrepresentation in attributing quotations to the subject, thus making him appear to say more than he did say. Malcolm accuses McGinniss of betraying his subject. But if she herself, as Masson charges, significantly altered or invented quotations, she betrayed her subject twice over. (The key word is “significantly”; no one is questioning the propriety of correcting a grammatical lapse or deleting the “ahems” and “ers.”) And if she did do that, she betrayed her readers as well, conning them into thinking that the quotations they were reading represented the actual words of the subject.

It is Malcolm herself, speaking of the “morally indefensible” behavior of journalists, the self-induced “state of moral anarchy” in which they work, who invites us to consider the moral aspect of her own case. And the appeals court decision suggests the grounds for such a consideration. In upholding the original decision against Masson, the court explained that it based its ruling on the assumption (which Malcolm herself does not concede) that the challenged quotations were “deliberately altered,” but found that they were not libelous because they were a “rational interpretation” and “substantive equivalent” of comments made by him as recorded on the tape.

The “intellectual gigolo” remark, for example, appears in the account of Masson’s relations with the other directors of the Freud Archive, Kurt Eissler and Anna Freud, and his sense of how they regarded him. Malcolm quotes him as saying: “I was like an intellectual gigolo—you get your pleasure from him, but you don’t take him out in public.” This, the court argued, is substantively equivalent to Masson’s actual words recorded on tape:

They felt, in a sense, I was a private asset but a public liability. They liked me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me.

The court also found evidence of the sexual connotation of the gigolo metaphor in other of Masson’s comments, such as his claim to having “charmed” Eissler and Anna Freud.

In his dissenting opinion, Judge Alex Kozinski denied that the substantive content of the taped remarks is equivalent to the “intellectual gigolo” quotation. The latter connotes “someone who forsakes intellectual integrity in exchange for pecuniary or other gain”; but nothing on the tapes suggests this. Nor is the sexual implication of gigolo borne out in Masson’s description of his relations with Eissler and Anna Freud. (It might also be said that a gigolo, so far from being “a private asset but a public liability,” is quite the reverse—an escort hired for public occasions but not a personal friend or intimate.) The more fundamental issue, however, Kozinski insisted, is “the meaning of quotations.” Quotation marks are meant to signify the actual words of the speaker, not the interpretation, however “rational,” of the commentator. The latter is normally conveyed by paraphrase, which alerts the reader to the possibility of bias. Quotations, on the other hand, have an “immediacy and resulting credibility” lacking in a paraphrase, which is why reviewers of Malcolm’s book (quoted by Kozinski) made a point of saying that it was not Malcolm but Masson who, by “his own words,” convicted himself of vanity, arrogance, egotism, and the other disagreeable qualities that emerged from her account. Judge Kozinski concluded that there is nothing in the First Amendment to support the premise of the majority decision: “the right to deliberately alter quotations.”

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Kozinski’s argument was echoed in the hearing before the Supreme Court. A direct quotation, Chief Justice Rehnquist observed, “can hit a lot harder” than a paraphrase. Justice Scalia agreed: by taking his own “byline” off the statement, by taking himself “out of the picture,” the author prevents his readers from making allowance for a possibly “erroneous judgment” on his part. The difference between direct quotation and paraphrase, Justice Kennedy remarked, is the difference between someone saying, “I am a racist,” and a third person saying, “He is a racist.” The lawyer for the defense tried to return the discussion to the subject of malice as the only pertinent issue before the Court. Yet the larger issue—the moral propriety of rendering interpretation as quotation—lingers over the case.

That issue is prominent in the amicus briefs submitted in support of Masson. To legitimize misquotation, they argue, would do a disservice not only to the individuals who are misquoted but to the very principle of free speech, because it would undermine the credibility of the media and increase the already considerable degree of public skepticism. It would also have a chilling effect upon the press by discouraging public figures from speaking to journalists, knowing that anything they say might be distorted while being attributed to them as a direct quotation. The “breathing space” required for free speech is sufficiently provided by paraphrase and indirect quotation. Thus the fabrication of direct quotations, so far from encouraging the free and open discussion that is the purpose of the First Amendment, actually inhibits and thwarts that freedom.

The briefs in support of the defendants naturally emphasize the legal issue of malice and libel; the business of the courts, one brief forcibly maintains, is not the imposing of ethical standards on journalists but only the enforcement of the laws of libel. Yet their arguments sometimes carry them beyond that. One claims that a great latitude in quotation (or misquotation) is required, lest freedom of speech be brought to “a grinding halt.” Another worries that a strict standard of verbatim quotation would “strike at the core of the docudrama genre”; by that standard neither Plato’s Apology nor Shakespeare’s Henry VI would be permissible.

If the Apology and Henry VI can be invoked in support of All the President’s Men, one need not be surprised to find Barbara Tuchman cited on behalf of Janet Malcolm. One brief quotes Tuchman on the unsatisfactory evidence produced by tape recorders (there is just too much of it, and too much of it is trivia), and on the awkwardness in the use of a tape recorder, especially for a woman accustomed to a more personal approach. The brief also cites a guide to the writing of nonfiction by the historian William Zinsser, who reminds writers that they have a duty to their readers as well as their subjects. While they must not misrepresent the view of their subjects, neither must they bore their readers. “Play with the ‘quotes’ by all means—selecting, rejecting, thinning, transposing their order, saving a good one for the end. Just make sure that the play is fair. Don’t change any words or let the cutting of a sentence distort the proper context of what remains.” But if Zinsser’s “quotes,” in quotation marks, suggests a lax view of quotations, such as might support Malcolm’s case, the injunction, “Don’t change any words,” might tell against her.

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Among the amici joining in this brief—together with Time Inc., various associations of writers, editors, publishers, broadcasters, and the American Civil Liberties Union—are two highly regarded historians: Edmund Morris, author of a biography of Theodore Roosevelt and a forthcoming authorized biography of Ronald Reagan; and David McCullough, author of several works in recent American history and of a forthcoming biography of Harry Truman. In an op-ed piece in the Washington Post on January 13, 1991 (the day before the case was argued before the Supreme Court), Morris carried the issue still further—beyond the legal question of malice and the constitutional question of freedom of speech, beyond the practical exigencies of conducting interviews and keeping the reader’s interest, to the high ground of truth, thus warranting the New York Times‘s remark that this case was about the “metaphysical” nature of “truth itself.”

A scholar, Morris concedes, might well deplore Malcolm’s decision to put “unspoken words in quotation marks.” But there are occasions when even a scholar can and should engage in “honest distortion”—not only (as Zinsser argued) to avoid dullness and redundancy, but “to make the truth more clear.” “Spoken words,” as transcribed from tape recorder or shorthand notes, are themselves only an “approximation of the truth,” Morris explains, for they do not convey the “meaning beyond their meaning.” “Honest distortion” may capture that meaning as literal rendition may not. Like the artist who deliberately curves a line to make it appear straighter than a straight line, so the biographer has to use interpretation to elicit the truth. The biographer, Morris quotes Descartes, is an “artist on oath.” “Our private covenant,” Morris continues, “unenforceable by law—but easily cramped by law—is to interpret the truth as we hear it and to be answerable in our interpretation to the only judges the Constitution allows to punish us: our readers.”

Since no one has challenged the “interpretation” that appears in the form of paraphrase, the use of the term here can only refer to the interpretation involved in altering quotations so that they are more meaningful, closer to the “truth,” than a literal transcription from tape recorders or shorthand notes. And since “private covenant,” as Morris says later in the article, does not mean either a covenant with the subject of the book or with the buyer, it evidently means the author’s convenant with himself. The “ultimate test” of a writer’s success, Morris concludes, is “saying something—or quoting something—that a majority of readers ‘can’t help but believe.’ ” This (echoing the famous dictum of Oliver Wendell Holmes) “is about the nearest we’ll ever get to the essence of things.”

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If we have come close to “the essence of things,” we have also come a long way from normal discourse, where “interpretation” is distinguished from “quotation,” where “distortion,” however “honest,” is differentiated from “truth,” and where the “scholar” does not claim the liberties of the “creative artist.” It must also be said, however, that if all this is far from normal discourse, it is not far from current academic discourse. If fact, it bears a striking resemblance to the theory and practice of deconstruction.

It is deconstruction (in some institutions past its prime but in others only now coming into prominence) that taught a generation of literary critics that there is no “text” apart from interpretation, that the author has no more “authority” than the critic, that there is no objective reality, only an “invented” or “imagined” reality. Historians, eager to be on the “cutting edge” of their discipline, soon discovered that history too could be deconstructed, that the “events” of the past have no objective reality, that they are no more than texts to be interpreted, invented, or imagined by the historian. And as with literature and history, so with the law; if events and texts have no reality or authority, then statutes, precedents, and constitutional principles are equally indeterminate. In one discipline after another, the deconstructionists promise to do what the Marxists before them had tried to do: to “demystify” received truth and to liberate us from the tyranny of “facticity.”

One is not surprised to find this mode of thought expressed in the pages of academic journals; indeed, it is all too banal there. It comes as something of a shock, however, to find echoes of it in a case before the Supreme Court—all the more so because one suspects that those arguing in this manner are not aware of just how fashionable, how sophisticated, how “academic” their arguments are.

Perhaps it is just as well. The Court has enough to do without passing judgment, as it were, upon deconstruction. And the language of the law is sufficiently obscure without being further obfuscated by the notoriously opaque language of deconstruction. One can imagine a discussion in the inner sanctum of the Court on the subject of “mystification.” Who is “mystifying” or “demystifying” what? If the effect of the defense argument is to demystify quotations by making them equivalent to interpretations, thus depriving the quotations of any “privileged” authority, was not Malcolm herself originally guilty of “mystification” by putting quotation marks around what were, at best, paraphrases, thus giving them the privileged status of quotations? And what would the Court make of this usage of “privilege”—an invidious term in the deconstructionist vocabulary, suggesting an illegitimate authority—in view of the time-honored constitutional sense of “privilege,” which has been at the heart of so many of its own decisions?

The Court will, happily, be unaware of this aspect of the case and will confine itself to the sufficiently difficult issue of libel. But whatever its decision, the extra-legal implications of the case may prove to be as important as the legal. It is not only the plaintiff and defendants who have a stake in this suit, not only journalists, writers, editors, publishers, historians, and biographers, but also the readers of those newspapers, magazines, and books. Until recently those readers have innocently assumed that direct quotations are indeed direct, unmediated by any interpreter, and that if a work of nonfiction succeeds in its “ultimate test” of saying or quoting something they “can’t help but believe,” it is because what is said or quoted is believable—because quotations, with those distinctive squiggles around them, can be believed to be quotations. This used to be not the private covenant of an author with himself, but a covenant between the author and his subject and reader. That covenant, if unenforced by law, was sanctioned by custom. It would be unfortunate if that custom were so widely violated that the law was obliged to step in to protect the rights of both the subject and the reader.

¹ A psychoanalyst can have a field day with these two books, starting with the fact that they both feature Jeffreys, both of whom are doctors, and both of whom are notably charming, articulate, and sophisticated—yet incredibly naive in relation to their confessors/exposers.