To the Editor:

In “The Right to Misquote” [April], Gertrude Himmelfarb struggles with an intellectual problem that other commentators on Jeffrey Masson’s lawsuit against the New Yorker, Alfred Knopf, and me have had to struggle with. This is the fact that our defense against Masson’s charge that he was misquoted in my book, In the Freud Archives, is hopelessly illogical. We argue two things in our briefs, each of which makes perfectly good sense by itself but in combination make no sense at all. We say (1) that Masson’s accusation is unfounded, and that the quotations he challenges are statements he apparently forgot he made, since they appear almost word for word in my notes; and (2) that the law gives writers discretion in how they treat quotations—that the important thing is to convey the substance of a subject’s thought. What is going on here? If we argue that Masson’s words were not altered, why do we also argue that it doesn’t matter whether his words were altered? Doesn’t the second statement cast doubt on the truth of the first?

The answer to the question lies in an arcane and little understood procedure of the law called summary judgment, which Miss Himmelfarb is evidently not conversant with, and which I myself am only dimly beginning to grasp after six years of study under accredited masters. Like the Japanese tea ceremony, summary judgment can be exquisitely interesting to its students but excruciatingly boring to everyone else. Nevertheless, I propose to beg the reader’s indulgence and try to explain it, since its peculiar nature lies at the heart of the problem that plagues Miss Himmelfarb and sometimes leads her into errors of thinking that I think she would ordinarily not make.

Summary judgment (I quote here from a footnote in the after-word to my book, The Journalist and the Murderer, which evidently escaped Miss Himmelfarb’s notice)

is an expedient the law provides for defendants who wish to avoid the expense of a trial. In summary judgment, the defendant must demonstrate that the plaintiff could not possibly win his case at trial. To make this demonstration fit within the confines of Rule 56(C) of the Federal Rules of Civil Procedure—which stipulates that summary judgment may be granted only when “there is no genuine issue as to any material fact”—the defendant is often obliged to leave unchallenged dire accusations which, at trial, the plaintiff would have to back up with evidence.

In the summary-judgment proceedings of the Masson lawsuit, our side could not, by the rules, challenge Masson’s dire accusation that I had invented the quotations that appear in my notes. (Nor did he have to support his accusation in any way—in summary judgment, the burden of proof shifts to the defendant’s side.) We knew that to comply with Rule 56(C) the court could not consider the notes, because Masson—calling them counterfeit—had made them an “issue as to material fact.” We therefore took another tack: we offered the court quotations from 40 hours of taped interviews made over many months (which Masson was obliged to accept as genuine), in which Masson returns, over and over, to the same subjects as those in the disputed quotations and says similar things about them. For example, to parallel the much quoted passage in my book—where Masson, wistfully ruminating on the changes he would have made in Anna Freud’s gloomy house after her death had he been made director of the Freud musuem there, says that “Maresfield Gardens would have been a center of scholarship, but it also would have been a place of sex, women, fun. It would have been like the change in The Wizard of Oz, from black and white into color”—we offered such taped comments as “We were going to pass women on to each other, and we were going to have a great time together when I lived in the Freud house,” and “They’re going to be calling the police on me every time I give a party or something,” and “It would take an Act of Congress to get me out of Anna Freud’s house.” We did this as a legal stratagem within the rules of the artificial exercise of summary judgment, and the district-court judge who ruled in our favor, as well as the majority of the appeals court who upheld his decision, understood it as such.

These judges were aware that we had made no concession, but under the rules of the game they had to behave as if we had. The lay press, not familiar with summary judgment and not understanding the “as if” character of the proceeding, interpreted the decision of the appeals court to mean that the court had found that Masson’s charges were true—that I had invented quotations—but still ruled for our side because the quotations were either not damaging or were close enough to other statements Masson had made to be legally permissible. The court, in fact, had found nothing of the sort. It was not its business to decide whether Masson’s accusation was true. Its mandate was to rule on whether there was enough weight on Masson’s side of the case to merit the cost to the taxpayer of a jury trial. A dissenting appeals-court judge, Alex Kozinski, believed he had found flaws in the majority’s legal rationale for denying Masson his day in court. The Supreme Court is now deliberating on the case and on its meaning for the conflicting interests of journalists and litigious subjects—the one protected by the First Amendment and the other by the Sixth.

I would like to put on record that the last time I invented quotations was in 1954, in a creative-writing class at the University of Michigan taught by the late Alan Seager, who gave me a mortifying C in the course and effectively kept me from pursuing what might have been a nice, quiet career in short-story writing. Since that time, I have never felt the slightest desire to write fiction. I neither invented nor “doctored” the quotations in In the Freud Archives or in any other book and article I have written; Miss Himmelfarb’s theory that my book about Jeffrey MacDonald is an unconscious confession of guilt about misquoting Jeffrey Masson is simply bizarre. I regret that Miss Himmelfarb lost her way in the thickets of summary judgment and based her long scold on a false premise.

Janet Malcolm
New York City

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To the Editor:

It is clear from Gertrude Himmelfarb’s article—and even more so from the actual opinion handed down by the appeals court—that, in his suit against Janet Malcolm and the New Yorker, Jeffrey Masson had the misfortune of running into a couple of judges with tin ears. Any judge who can write, as Arthur Alarcon did for the majority, that the phrase “intellectual gigolo” is no more defamatory than, and means substantively the same as, a “private asset but a public liability” has no feeling for words.

That is the example Miss Himmelfarb cites; the court’s opinion lists many more. Readers may be interested in an even more glaring example, to be found in the section entitled “ ‘Misleadingly Edited’ Quotations.” Here the issue is not one of putting words in someone’s mouth; rather, it is altering a quotation so that it means very nearly the opposite of what was actually said. The following remarks of Masson’s, concerning Freud Archive director Kurt Eissler, come directly from the tape:

He was constantly putting various kinds of moral pressure on me [to keep silent about what Masson felt he’d discovered in Freud’s papers]. . . . “Do you want to poison Anna Freud’s last days? Have you no heart?” He called me up. “Have you no heart? Think of what she’s done for you, and you are now willing to do this to her.” I said, “What am I? What have I done? You’re doing it, you’re firing me. What am I supposed to do, thank you? Be grateful to you?” He said, “Well, you could never talk about it, you could be silent about it, you could swallow it. I know it’s painful to you, but just live with it in silence.” “Fuck you,” I said, “why should I do that? Why? You know, why should one do that?” “Because it’s the honorable thing to do, and you will save face, and, who knows, if you never speak about it and quietly and humbly accept our judgment, who knows, in a few years, if we don’t bring you back?” Well, he had the wrong man.

After Janet Malcolm got through with them, Masson’s words appeared as follows:

He was always putting moral pressure on me. “Do you want to poison Anna Freud’s last days? Have you no heart? You’re going to kill the poor old woman.” I said to him, “What have I done? You’re doing it. You’re firing me. What am I supposed to do, be grateful to you?” “You could be silent about it. You could swallow it. I know it is painful for you. But you could just live with it in silence.” “Why should I do that?” “Because it is the honorable thing to do.” Well, he had the wrong man.

In the taped transcript, Masson refuses to be bought off by the prospect of a future job. In Miss Malcolm’s version, with 33 crucial words deleted, he seems to be saying that appeals to his sense of honor are a waste of breath.

Yet the appeals court refused to see anything malicious in this alteration, ruling that . . . “the statement Malcolm ascribed to Masson was a rational interpretation of his ambiguous remarks.”

Judge Alex Kozinski, in his eloquent dissenting opinion, showed himself to be far more sensitive to language—and its corruption—than his colleagues. He noted:

Because quotations possess an immediacy and resulting credibility often lacking in ordinary narrative prose, minor changes in quoted language can have a major effect on how a speaker is perceived. A skilled writer can shade a speaker’s words in subtle ways that will color a reader’s perception far more effectively and permanently than if the writer paraphrases or otherwise discloses her editorial role.

Now that the case has reached the Supreme Court, I find it disturbing that a number of professional writers’ groups, whom one might expect to be equally sensitive to the use and misuse of language, have filed briefs on behalf of the defendant. It strikes me that they have come in on the wrong side.

Ted Klein
New York City

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To the Editor:

In “The Right to Misquote” Gertrude Himmelfarb professes “shock . . . to find echoes of [de-constructionist argument] in a case before the Supreme Court.” Presumably, she is unaware of the Court’s own legacy of constitutional deconstructionism. After all, this is a Supreme Court which has discovered (or invented) a right to privacy in “penumbras” that purportedly “emanate” from the text of the Constitution, which has equated flag burning with “speech,” and which sees the Fourteenth Amendment as an open-ended invitation to prescribe radical social policies that its framers and ratifiers never contemplated. Thus, it would not be surprising if the Court were to rule in favor of Miss Malcolm because to do otherwise would undermine the legitimacy of many of its past decisions. . . .

One hopes the Supreme Court will not view Masson v. Malcolm as an opportunity to sanction the deconstruction of the English language. Yet the Orwellian possibility of longstanding and generally understood rules of grammar being overturned by judicial fiat is very real. While the Supreme Court has no constitutional authority to undermine the confidence of readers in the accuracy of those words “with those distinctive little squiggles around them,” this is unlikely to deter it from imposing a deconstructionist Newspeak on us—ironically in the name of freedom of expression. . . .

Phillip Goldstein
Brooklyn, New York

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To the Editor:

Gertrude Himmelfarb twice speaks of Jeffrey Masson as a “doctor.” While I am not sure what level of education Masson has achieved, I do know that he is not a physician, and does not hold the M.D. degree. He is one of a legion of lay psychoanalysts, some of whom hold the Ph.D. (usually in clinical psychology, but it might also be in the humanities, or anything else). Other non-medical psychotherapists have varying kinds of academic credentials, ranging down to a high-school diploma.

There are, in short, doctors and then there are doctors. The M.D. degree, however, does entail knowledge of, and (usually) adherence to, the Hippocratic Oath, which is of some protection to vulnerable patients. While the Oath is much derided in this day of disrespect for authority and the professions, it still has meaning for the vast number of physicians, and our students receive instruction about its significance and application. Nothing I have read about Masson indicates that he has taken that oath, nor, of course, feels obliged to adhere to it in his professional life.

Seymour C. Post, M.D.
Department of Psychiatry
College of Physicians & Surgeons, Columbia University
New York City

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Gertrude Himmelfarb writes:

Janet Malcolm’s comments on the intricacies of “summary judgment” are informative but irrelevant. I was not concerned with the “hopelessly illogical” nature of the legal arguments used in her defense, and I made it clear that she herself denied having invented those quotations. What I was concerned with was the illogical—and, worse, insidious—nature of the arguments used by some of those who defend her on the ground that there is no essential difference between an actual quotation and an invented one, that a quotation can be altered to reflect some “higher” truth. Miss Malcolm weakens her own case if she sees nothing in this issue but a “long scold.” She also weakens the elaborate psychoanalytic argument made in her book about Jeffrey MacDonald if she finds my simple and obvious psychoanalytic comments about herself to be “bizarre.”

I agree with Ted Klein about the substantive difference between the taped and published quotations he cites, and with Phillip Goldstein about the deconstructionist implications of some previous Supreme Court decisions.

I am also tempted to agree with Seymour C. Post about the difference between “doctors” and “doctors” (although I suspect that even the M.D. variety is not immune from a deconstructionist interpretation of the Hippocratic Oath). But I don’t feel that I can take it upon myself to deny the title to those Ph.D.’s, LL.D.’s, and all the other “doctors” legitimized by our institutions of higher learning.