Alan Dershowitz

Free Press, Fair Press

VTR Date: October 14, 1990

Guest: Dershowitz, Alan


Host: Richard D. Heffner
Guest: Alan Dershowitz
Title: “Free Press/Fair Press…and the Law”
VTR: 10/14/90

I’m Richard Heffner, your host on THE OPEN MIND…and I had actually never spoken to today’s guest until just a week or so ago, when I invited him here to discuss a case just accepted for argument before the United States Supreme Court, a case that marks a fascinating confluence of free press issues in the law and journalistic ethics. Yet, how could I do anything but intellectually embrace someone who right off the bat said to me, “I’m of two minds on this case, but sure I’ll join you”.

For the peripatetic Alan Dershowitz, Professor at Harvard Law School, and appeals attorney of last resort for so any well-known persons on trial, is himself well-known for expressing very few doubts, indeed, about the vital public issues he so often debates. And that he of all people is of two minds on the libel case of former psychoanalyst Jeffrey Masson against journalist/author Janet Malcolm is surely a tribute to the difficulties it poses for those concerned with nurturing both press freedoms and journalistic ethics.

Though Janet Malcolm, appropriately enough choosing to stick to her last – writing, rather than talking on TV – declined to discuss the closely related issue here on THE OPEN MIND, a year and a half ago, Mike O’Neill, former Editor of the New York Daily News and President of the American Society of Newspaper Editors, did join me on a program I began by reading the highly provocative first paragraph of a highly controversial New Yorker Magazine article Ms. Malcolm had written. So, let me read it, and then turn to Professor Dershowitz to ask him to brief us on the Masson/Malcolm case that has now reached the Supreme Court of the United States.

Ms. Malcolm wrote, “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 thrust and betraying them without remorse. Like the credulous widow who wakes up one day to find the charming young man and all her savings gone, so the consenting subject of the piece of non-fiction writing learns, when the article or book appears, his hard lesson”. As she said, “Journalists justify their treachery in various ways according to their temperaments. The more pompous talk about freedom of speech and the public’s right to know. The least talented talk about art. And the seemliest murmur about earning a living”.

Well, so she wrote. That was her first paragraph, Professor Dershowitz, and I wonder if you could just brief me and the audience, very briefly about the case before the Supreme Court now.

Dershowitz: Well, in one sense the case is about whether or not Jeffrey Masson read that article, the beginning of that article, or understood who he was encountering, what kind of a journalist he was encountering, when he consented to be interviewed for a biographical article. He did consent to be interviewed. He gave hours of interviews, many of them on tape…some of them apparently not on tape. And Ms. Malcolm, true to her won self-proclaimed journalistic actions, then apparently, at least this is according to the allegations, took some statements that he had made, and paraphrased them, There’s a dispute about whether they’re actual paraphrases, or greater liberties were taken and put them in quotation marks. That is, sent a message to the reader of the article that these were the actual words of the subject of the interview. He then sued, claiming that not only were they not his own words, but they didn’t actually reflect the intention and the meaning of what he said. The Supreme Court has now taken this case, on the very important issue of whether or not, when a quotation mark is used around a statement, whether or not that’s a certification to the public that those are the actual words of the subject or whether a writer has some liberty to put in quotes the meaning, the paraphrase and whether or not, if the person is a public figure, as Masson certainly is, whether he can sue alleging that there was malice because his own words were put in quotes and they weren’t quite his own words. Those are the issues that the Court will have to deal with.

Heffner: Now when we spoke on the phone, why did you say that you were of two minds on this issue?

Dershowitz: Well, certainly as an avid reader of the press, and a sometime journalist myself, if this were a class in journalistic ethics, if this were not the United States Supreme Court, but rather the Columbia School of Journalism, or the Pulitzer Committee, or some group dealing with journalistic ethics, I would have no question what Ms. Malcolm allegedly did, and we have to use allegedly because we haven’t yet had the facts sorted out – this case comes up to the Supreme Court on what’s called a “pleadings”, the general allegations, but if it’s true that she took words and put them in quotations marks, and they were her own words, words like “intellectual gigolo” or things of that kind, surely I would give her a C- on journalistic ethics. On the other hand, the Supreme Court is not the court of last resort for journalistic ethics. It’s the court of last resort for Constitutional Rights. And I worry greatly if the Supreme Court imposes its view or even our view or journalists’ views of ethics on the First Amendment, imposes it as a limitation on the First Amendment…we may see a constraint on our ability to express freedom of speech…notwithstanding what Ms. Malcolm says about freedom of speech as the last recourse of journalistic scoundrels, it certainly means more than that to America.

Heffner: But if the Supreme Court is the court of last resort in terms of free speech issues, not in terms of journalistic ethics, are there not free speech issues at stake in Jeffrey Masson’s position?

Dershowitz: Sure there are, and there are free speech issues involved whenever there is a law suit brought by somebody in the context of having been libeled. But, generally, when we talk about freedom of the press and freedom of speech, we generally think about breathing room for the journalist. After all, Jeffrey Masson is no shrinking violet. He can and has answered these charges. He’s not quite had the same amount of space as his protagonist may have had…antagonist may have had, but surely the American public is fully aware of his point of view on that. So nobody has constrained his freedom of speech. The question is now, whether or not a journalist like Ms. Malcolm will, will have to think hard before she next writes a piece like this using quotations, whether it will, in fact, have a chilling effect on free-wheeling journalism.

Heffner: Well, are you satisfied that what you had here were equal forces with equal access to the public and therefore, the courts, the law, has no place in determining what was fair and what was not fair?

Dershowitz: No, I’m not satisfied. There were equal forces…I’m not satisfied the law has no place. When the law makes a special rule for public figures, it is in effect saying two things. One, a public figure is not like Joe Six-Pack or just John Q. Citizen, who couldn’t possibly get his or her point of view out to the press. There’s an imbalance of forces. When we have a public figure normally we have somebody who has some degree of access to the press. And the second point is when we have a public figure, we have somebody who we have an interest in making sure is exposed. Now, what Janet Malcolm did to Jeffrey Masson certainly belongs in the public interest. If one in fact has a kind of pompous and self-righteous psychologist who’s making all kinds of contradictory claims and claiming for himself great brilliance, we, the public are entitled to know that. I only wish she had been more careful in her expose so this other side of the issue hadn’t been presented. But it was, and the court is going to have to balance these ethical issues and free speech issues.

Heffner: And where would you come down on balance?

Dershowitz: Well, having been of two minds since you spoke to me, I’ve done a lot more thinking about it, and I’ve finally come out thinking that it would be a mistake for the Supreme Court to impose its or our view of ethics on journalists. I think the best service the Supreme Court could actually do in a case like this, is to send a clear announcement to the public “when you see quotes, don’t you be fooled into thinking that always means that it’s an accurate quotation of the subject. From now on, be aware that quotation marks…we are told by distinguished journalists”, because many journalists will file amicus briefs in this case and make this point, “We are told that when journalists use quotation marks they don’t really mean it. So the public beware”. And that may be the best service the Court could perform.

Heffner: But, Professor Dershowitz, when you say “The court should say, in a sense, ‘from now on the public knows that it should be wary of the quotation mark’”…is that a judicial part of judicial lore…l-o-r-e…would you be satisfied with that in a case of your own, if the Supreme Court should say, “Well, Mr. Dershowitz, we’re not going to rule for you and your client now, but from now on, let anyone who has done to others what so-and-so has done to you beware because we’re going to be stricter about this”?

Dershowitz: Good point.

Heffner: Now would you really…

Dershowitz: That’s a good point. The Supreme Court does do that from time to time, even sometimes in criminal cases. They rule what’s called “prospectively”, only for the future, but not for the past. But this is different. After all, we’re in an area of some ambiguity. We know that quotation marks don’t always mean quotation marks…I…

Heffner: Why do you say that?

Dershowitz: Well, let me give you an example. The New York Times recently ran an article that I wrote about how if feels to be played in a, in a movie. And in the course of the article, they…in quotation marks…purported to summarize what I had actually said…quote I had a bizarre feeling that someone had borrowed my identity…

Heffner: End quote.

Dershowitz: End quote. And then I looked back at the actual statement which they were purporting to quote. It was quite different. “I had a physical reaction…not quite an out-of-body experience, but a bizarre feeling that some stranger had borrowed my identity”. It was very close. I had no complaints. The point is that “the newspaper of record” even sometimes takes liberties in quoting something that’s very close to the original, but not quite. Syntax changes and corrections are made by newspapers all the time. Twenty years ago, when the Spock case came out, I gave an interview to Time magazine in which I said, “Well, from what I’ve seen of the evidence, there might or might not have been a conspiracy”. They shortened it, and they said, “Dershowitz said there might have been a conspiracy”. Well, “might” means might or might not, but the emphasis was quite different. So I think journalists have been taking liberties with quotation marks for many years. It’s about time the general public learned that, and they’re probably going to learn it from the Supreme Court.

Heffner: Yeah, but you know there’s a difference between saying, “It’s about time that we in the public learn that, and saying “Well, we know that”. We really don’t know that, do we? Do we…do you mean that if you scratch someone on the street today and say, “You see quotation marks about this…do you assume that someone, the person about whom the story is written actually said it in those words?”.

Dershowitz: No, I think you’re right. I think that the average reader of the daily press certainly thinks a quotation mark means that the person said it. By the way, the American public doesn’t have such high regard for journalism as a profession, and so it’s not clear to me whether they always believe what they read in the newspaper. Surely, they should not. Whether the average reader of The New Yorker has more faith or less faith, it’s after all, a more sophisticated reader, but it’s a more sophisticated magazine. But I do think that we’re at a crossroads. And when I think about what the effect would be of the Supreme Court setting down a categorical rule saying “Quote means quote and if you don’t have the words exactly right, you’re going to be held liable, maybe even bankrupted”…When I compare that against the evil of saying, “Look, we’ve lived in an area of ambiguity. From now on the public ought to know a quote doesn’t mean a quote”, as a supporter of the First Amendment and also a reader of the press, I would err on the side of more breathing room for the First Amendment, and let journalism deal with its own ethics. The Supreme Court doesn’t do very well, by the way, when it gets into ethical problems. When they’ve tried to get into legal ethics on a few occasions, they’ve really made a mess of it.

Heffner: Yes, but when you say “let journalism take care of its own”, how has journalism…how well has journalism done at taking care of its own incursions into the, into these darker corners?

Dershowitz: Not very well, and this case demonstrates that because the first time the general public really learns that a quote doesn’t mean a quote is going to be from frightened journalists, who are going to tell the Supreme Court “we don’t mean what we say”. Watch what Ms. Malcolm said in her original article where she described…now, journalists don’t like the way that she described them in that original article, but they’re going to, I think, be clinging to that because journalists, for the most part, I think, are very worried about being held to accountability for quotation marks in all cases.

Heffner: Do you think journalist should be held to accountability generally for what they write as attorneys should be held to accountability, if indeed they are, for what they say and write?

Dershowitz: Well, I think journalists and attorneys are very different. Attorneys are, in some respects, officers of the court. That’s a very dangerous doctrine. I just came back from the Soviet Union where I met with lots and lots of lawyers, who don’t want to be regarded as officers of their government. They want to be as independent as lawyers are here. But we, after all, do get licensed by the State. It would be an anathema to license a journalist…my God; the First Amendment would crumble if we licensed a journalist. If the State could somehow hold journalists to account…Journalists are different. They are independent. They’re not part of the government structure. And that’s why I think, on balance, though it’s a hard question for me, journalists ought to be held to account by other journalists, and not by people wearing robes and people who work for the United States government

Heffner: They’re not held to account…are they not held to account, as you say, because they weren’t identified as the focal point of power in the society in which the First Amendment was created?

Dershowitz: Yes.

Heffner: And now they have a great deal more power.

Dershowitz: I think that’s right.

Heffner: Have more of an impact. Would you not then modify that century, two-century-ago concern?

Dershowitz: I would not, although I understand the argument for doing so. I still think that the need to have an independent fourth estate, an independent group of people, who just don’t have to account for what they do to the government, who live and die by their word. By the way, that’s why I’m opposed, very much to schools and universities subsidizing the press. I don’t like government subsidizing the press. I really believe that capitalism and the marketplace of ideas should work in newspapers and the media. It doesn’t work perfectly, obviously. But I think that they should only be accountable to their journalistic peers and to, to their readers. Now, obviously I’m not a total absolutist who believes that a journalist should be able to make up stories about public or private figures that could destroy careers. There is something left for the law of libel and slander. Yet, I think this one would press it too far if we held that the mere fact, standing alone, of a misquotation within quotation marks, would give rise to a libel suit.

Heffner: You then would prefer for the court to say, the high court to say, “Look, from now on the American public should be aware of the fact that quotation marks do not mean quotation marks…” rather than saying…

Dershowitz: For some journalists.

Heffner: …rather than saying, “Journalists from now on should be aware of the fact that quotation marks damn well mean quotation marks, and mean that the words between them represent what their subjects have precisely said”.

Dershowitz: Well, I think it would be wrong for the Supreme Court to set out those rules. I noticed in one of my own books I had a note at the end of the book saying that I have extensive quotations, but sometimes what I’ve done…this is a note that I put in the back of the book, sometimes I’ve run two conversations that occurred on different days together, where the context permitted it, sometimes – because my editor told me to do so, I’ve eliminated ellipses when it didn’t seem like it was necessary. So, we’ve all taken liberties. I’m glad that I put that note in the back of the book to alert the reader to what I had done. But this was four or five years ago before this case came up, and this was done by my editor at a very distinguished publishing house.

So I think the issue is not as clear as I think Mr. Masson and others would like to make it. Also, we have to remember that some of the people, who are in favor of holding these newspapers accountable and journalists accountable, are enemies of the First Amendment. I worry that this case could give William Rehnquist, who has been sitting there waiting to get the press for a long time, an opportunity to do and “Aha! See? I told you so. Don’t trust the press”! He could use this as a rationalization, as an excuse to hold the press accountable, not because of what happened here. Indeed, he has no sympathy for, for Jeffrey Masson, who’s a kind of Leftist, who would have no support…Strange bedfellows…in these, in these cases, often emerge. But I think he may use this as an opportunity to “get” the press and to hold them accountable, because deep down, scratch William Rehnquist a little bit, and you do not find a supporter of freedom of, of the press.

Heffner: Okay. Now, you start off by saying you’d thought about it since we first talked, and you’ve decided you’re of one mind now, with some qualms.

Dershowitz: I’m of one mind when it comes to the Supreme Court…

Heffner: Right.

Dershowitz: I have two minds when it comes to what, what it was that Ms. Malcolm did.

Heffner: Right. Now what do you think the Supreme Court will do?

Dershowitz: It’s a hard question. We don’t know where Justice Souter would sit on an issue like this. We don’t know where Justice Scalia would sit on an issue like this. This is a case of really a first impression. It was a divided vote in the United States Court of Appeals. A very distinguished and brilliant Circuit Court Judge, Alex Kozinski, who’s generally a libertarian, came out in favor of holding the press accountable here. That was a little surprising. The other two on the court voted that, reluctantly, the press should have this kind of freedom although they didn’t say any…very many nice things about the journalistic practice here. I think anybody who would bet widows or orphans money on the outcome of this case would be better advised to buy the lottery ticket.

Heffner: It’s interesting…you mentioned the, the comments of Judge Kozinski…”The right to deliberately alter quotations is not, in my view, a concomitant of a free press”.

Dershowitz: Yes.

Heffner: So he separates the issue of a free press from that of a fair press.

Dershowitz: He does.

Heffner: He does. And you, you don’t want to separate “fair” and “free”?

Dershowitz: No. Oh, certainly not, certainly not. The right of a free press is the right to be unfair. There’s no question about that. It’s the right to be wrong. Every society gives its press the right to be right. Not every society, certainly not Iraq and certainly not the Soviet Union. But the right to be wrong and the right to be unfair is certainly a very important aspect of journalistic freedom. If it was only the right to be fair we wouldn’t have these great struggles.

Heffner: But it was the question of fairness, not of rightness or wrongness, that I was raising.

Dershowitz: That’s right.

Heffner: And you feel the same thing about…

Dershowitz: I do…

Heffner: …fairness.

Dershowitz: …if one goes back to the original columns and articles that gave rise to our First Amendment, Mr. Zenger who wins all the prizes for being the great journalist who gave us our freedom of speech, was one of the most unfair journalists in American history. I have gone back and read some of this commentary on New York politics. It was very unfair. Some of the attacks on George Washington, some of the attacks on Abraham Lincoln, during our War of Independence and our Civil War were grossly unfair.

Heffner: You would make the concession though, that the power of Zenger in those days, not quit to be compared with the power…

Dershowitz: No question.

Heffner: …of the press today.

Dershowitz: That’s right.

Heffner: Which is so much greater today.

Dershowitz: No question. The power of the press today…it can make and break certainly a politician. It can certainly make and break many public figures and it’s most unfair when it operates against a private figure who doesn’t have recourse.

Heffner: But if that is the case, why are you so willing to drag out poor Peter Zenger?

Dershowitz: Because if the power of the press has increased dramatically, as it has over time, so has the power of government. The power of the central government in the United States, the power of the Presidency…if you compare the Presidency today with the Presidency back in George Washington’s time, the power of every branch of government has increased. We are a country that has centralized power in government, centralized power in the media, and I see a greatly increased, powerful media as a counter-play to the power of the press.

Heffner: But…

Dershowitz: To the power of the government.

Heffner: But you’re the one who has said that the real function of the Supreme Court is to preserve and protect the interests of the individual.

Dershowitz: That’s right.

Heffner: Okay. Now I wasn’t talking about preserving and protecting the interests of government…

Dershowitz: Yes.

Heffner: …or of the press, but of the individuals…

Dershowitz: …in relationship to the government…that’s the key.

Heffner: Of the individuals in relation, in this instance, to the press.

Dershowitz: To the press. I think when given a choice between whether the proper role of a court is to protect the individual in relation to government and to protect the individual in relation to a powerful, but still private force, the primary concern has to be government. Remember, newspapers can do terrible damage. They can even start wars. We know that. But in the end they can’t imprison somebody. In the end they can’t deny somebody liberty, the way government can, and that’s why a free press, even an irresponsible free press, and again, just coming back to the Soviet Union…what kind of press do you think is emerging in Eastern Europe? A very irresponsible press, a press that is competing with each other for readers, and for power, and yet the last thing I would want would be to see the newly free governments of Easter Europe starting to impose restrictions on the press. It’s going to have to work itself out…and there’s no free lunch. When we give the press the power, vis-à-vis the government, it will take that power and destroy individuals.

Heffner: Professor Dershowitz, we just have a couple of minutes left. What do you think the impact would be if the Supreme Court should rule other than you want it to rule, if it rules in favor of Masson?

Dershowitz: I think it could be one of several things. It…this could be a limited case. It could be like a limited railroad ticket for this day and this train only. It could have no impact. That was what I would hope for. But it could be the opening wedge of the court saying, “We’re going to start looking hard at journalistic responsibility. We’re going to start applying our standards of ethics to the press”. And it could give the Supreme Court and the government more power over the press than I think most Americans would like to see.

Heffner: And again, if you had to make a bet…I know you said, when I asked you that question before “it’s too difficult”, but…

Dershowitz: I’d worry.

Heffner: …look at the crystal ball.

Dershowitz: The crystal ball makes me worry. The crystal ball makes me think the Supreme Court may create a coalition of conservatives and “right”-thinking moderates who would think that they’re standing up really for the integrity of the press, and will come out against the press in this case, and it could have, I think, negative implications for the future of freedom in America. So that’s my cautious and worried prediction.

Heffner: You said before that government should not be involved in the question of fairness and the press…

Dershowitz: In general.

Heffner: …said this is a matter for journalists to decide themselves. My understanding is that journalists have rather consistently rejected that obligation. Is that your understanding?

Dershowitz: I think so. And I think that one of the messages of this case is that journalists ought to do to themselves what the legal profession has at least tried, not always succeeded, to do to itself. I’m not talking about licensing or disbarment, but much more vigorous ethics committees which will at least be able to inform the public that when there is a journalist who does the wrong thing, when a journalist, for example, reveals a confidence that was given to him, or reveals he name of a source…we very rarely…you know we hear journalists all the time talking about he privilege, how important it is, we very rarely hear about journalists who breach the privilege. We very rarely hear journalists called to account for violating their own ethical norms, and I think one of the messages is, “If you don’t do it, the Supreme Court may do it to you…so beat them to the punch”.

Heffner: Well, I hope that you’re going to stick to your promise to me that you would sit here and as we end this program now, you’ll go on and do another on a slightly different subject and that is Alan Dershowitz. Thank you so much for joining me today, Professor Dershowitz.

Dershowitz: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s intriguing guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.