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First Amendment Library:
Charles O. Morgan Jr.


During 1982 and 1983 writer Janet Malcolm frequently interviewed Jeffrey Masson for an article she was writing about the Sigmund Freud Archives. Mr. Masson had worked as the Projects Director of the Archives until his disenchantment with psychoanalysis led to his termination. Six passages in the article contained quotations from Mr. Masson that Mr. Masson claimed he never made. Ms. Malcolm's 40 hours of taped interviews demonstrated that the quotations either were never made or had been altered in varying degrees. Mr. Masson sued for libel, but the trial court dismissed the suit on the grounds that the altered quotations either were substantially true or rational interpretations of statements that Mr. Masson had made. The Ninth Circuit Court of Appeals affirmed on similar grounds, holding that Mr. Masson could not prove that Ms. Malcolm had published the altered quotations knowing that their meaning was false. Under the First Amendment, a public figure cannot prevail in a libel action unless he or she proves that the author knew that the alleged defamatory statement was false or acted with reckless disregard as to the statement's truth. The public figure also must prove that the statement injures his reputation and is not at least substantially true. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).


Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. *736 He had entered the Army under the so-called "Berry Plan,"[1] under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 1967, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor.