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How Being Careful Can Hurt You in Court

Article excerpt

The reasoning used by judges in libel decisions is sometimes truly wondrous to behold. A current example: A celebrated libel case being readied for trial will proceed on a court's astonishing conclusion that the use of a fact-checker may cause more, not less, legal trouble for a publication.

Fact-checking - the simple act of trying to get it right - is a customary practice at many magazines that has been elevated to a virtual art form by the New Yorker. But it is the New Yorker itself that is now at risk because of its fact-checking. At last, a highly-publicized suit over the allegedly phony quotations in a two-part series in the magazine nine years ago is headed for trial in May in a federal court in San Francisco.

The case, discussed in this column in March and September 1991, is based on a claim by psychoanalyst Jeffrey Masson that writer Janet Malcolm fabricated a series of quotes that made him look bad. (The series later was published as a book by Alfred A. Knopf, but the publisher is off the hook after the latest federal appeals court ruling.)

Five of the six contested quotations were found by the U.S. Supreme Court to have varied enough from statements that Masson insists he made that a jury could reach a verdict against Malcolm. That left it to the court of appeals in San Francisco to rule on the legal fate of the New Yorker. Clearing the way for a jury to hear Masson's libel claim against the magazine, the appeals court decided in April that fact-checking created enough doubts about the accuracy of the quotations that the magazine and Malcolm may have been legally responsible for any harm done to Masson.

The court of appeals, in an opinion by Judge Alex Kozinski, made it clear that the magazine had no legal duty to do fact-checking in the first place - or, indeed, to make any investigation of the accuracy of quotes in the Malcolm stories. A publication cannot be held liable for defaming someone merely because it did not investigate, the judge noted.

But, he went on, if a magazine makes such an effort, and the process raises doubts about accuracy, legal woe may be the price of failing to dispel those doubts. Perhaps appreciating the irony of turning a careful editing technique into a potential liability, Kozinski wrote in a footnote:

"We are aware that this puts publishers like the New Yorker - whose practice it is to investigate the accuracy of its stories - at somewhat of a disadvantage compared to other publishers such as newspapers and supermarket tabloids that cannot or will not engage in thorough fact-checking. After all, publications that check their stories for accuracy are more likely to develop |obvious reasons to doubt' than ones that do not. …