dissenting.
The majority and I part company on a simple but fundamental point: the meaning of quotations. As I see it, when a writer uses quotation marks in reporting what someone else has said, she is representing that those are the speaker’s own words or something very close to them. The majority views quotations much more amorphously: They are merely an extrapolation of the speaker’s words, as interpreted in light of his background and character. Under the majority’s approach, the resulting “quotation” may differ significantly in wording and content from what the speaker actually uttered, so long as the writer can argue with a straight face that it is a rational interpretation of what the speaker said. If the speaker is thereby made to sound stupid or arrogant, evil or insincere, the majority denies him a remedy.
While courts have a grave responsibility under the first amendment to safeguard freedom of the press, the right to deliberately alter quotations1 is not, in my view, a concomitant of a free press. Neither the authorities on which the majority relies nor the applicable first amendment principles suggest otherwise. I must therefore respectfully dissent.
I
A. This is a case of libel. Plaintiff Jeffrey M. Masson gave an extended interview to defendant Janet Malcolm, who was writing a story about Masson’s stormy relationship with the Sigmund Freud Archives. All or substantial portions of that interview were tape-recorded. Masson now claims that Malcolm attributed to him a number of statements he never made and materially changed others so as to place him in a false and unfavorable light. He supports his claim with a detailed and articulate declaration; he also provides transcripts of the tapes and other collateral evidence, all of which seem to corroborate his claim.
There are, to be sure, many disputed facts: Malcolm claims that Masson made the statements in question precisely as she quoted them, albeit during interview sessions that were not tape-recorded. But, as the majority recognizes, the dispute must be resolved in Masson’s favor in this appeal from a grant of summary judgment. We therefore start with the assumption that Malcolm altered Masson’s statements as he claims she did.
Under the law of California, which we are bound to apply in this diversity case, attributing to Masson a statement he did not make can constitute libel. See Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123, 1129, 212 Cal.Rptr. 838, 844 (1985). Indeed, in Bindrim v. Mitchell, 92 Cal. App.3d 61, 155 Cal.Rptr. 29, cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979), disapproved on other grounds, McCoy v. Hearst Corp., 42 Cal.3d 835, 846 n. 9, 727 P.2d 711, 719 n. 9, 231 Cal.Rptr. 518, 525-26 n. 9 (1986), on which the majority relies, the court sustained a libel verdict based in part on misquotations, even though the story purported to be fictional and the dialogue was nominally attributed to a character bearing a name different from the plaintiff’s.
Nor is there any dispute as to the plaintiff’s burden of proof. Masson readily concedes he is a public figure who must prove malice under New York Times, Inc. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This means that Mas-son cannot recover for inadvertent, careless or even negligent alterations of his quotes. He can only recover if he shows that defendants deliberately changed his words or misquoted him recklessly. Id. at 279-80, 84 S.Ct. at 725-26. Masson claims *1549he can do this; he asks for the opportunity to present his proof to a jury.
The majority holds, as a matter of law, that Masson cannot establish malice as to some of the challenged quotations because they did not alter the substance of his statements and, as to others, because they were rational interpretations of Masson’s own ambiguous remarks. Majority op. at 1539-40. While both parts of this test are troublesome, the second is particularly so. An unqualified quotation attributed to a third party is commonly understood to contain no interpretation; by using quotation marks the writer warrants that she has interposed no editorial comment, has resolved no ambiguities, has added or detracted nothing of substance. As more fully discussed below, see pp. 1556-62 infra, that is the prevailing view among journalists. It is also, I believe, the assumption made by most readers. Because quotations purport to come directly from the speaker — free of editorial comment by the writer — they can have a devastating rhetorical impact and thus carry a serious potential for harm.
We need not speculate; the record contains clear evidence on the subject. For example, a review of Malcolm’s article in the Boston Globe by psychiatrist Robert Coles, a Harvard professor, contains the following appraisal of Masson, based on Malcolm’s work:
Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: his own words reveal this psychological profile — a self-portrait offered to us through the efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic profession.
Coles, Freudianism and Its Malcontents, Boston Globe, May 27, 1984, at 58, 60 (emphasis added). And again, in a review of Masson’s own book, reference is made to Malcolm’s description of him, and particularly to the words he supposedly uttered:
... Malcolm’s portrait of Masson is devastating: largely through his own words he emerges as a feverish jumble of vanity, self-destruction, childishness, and ruthlessness.
Kirkus Reviews, Apr. 1, 1984, at 345 (emphasis added).
As these reviews indicate, and as common sense suggests, readers give far greater weight to direct quotations than to descriptions or paraphrases by the author. This is because quotations allow readers to draw their own conclusions about the speaker’s character, motive, candor and lucidity.2 Experienced writers are well aware of this phenomenon and frequently use quotations as proof — raw data to enhance the credibility of the narrative — as if to say: “See here, don’t just take my word for it, he said it himself.” An article devoid of such factual anchors, one that consists entirely of the author’s own observations and conclusions, will generally leave readers dissatisfied and unpersuaded, as well as bored.
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. For example, if Malcolm tells us “Masson thinks he is the greatest analyst who ever lived,” we discount the statement somewhat, aware that it represents merely her own conclusion, filtered through her perception, biases and mode of expression. It is quite a different matter to read Masson as saying “I am the greatest analyst who ever lived.” This *1550shows him to be not only arrogant and conceited, but a braggart to boot. By putting the phrase into Masson’s own mouth and concealing her role as interpreter and editor, Malcolm has caused Masson a serious injury and made it look like a self-inflicted wound. It is this concealment — the use of quotation marks to deceive the reader about the author’s editorial role — that libel law prohibits and the Constitution does not, in my opinion, protect.
A close examination of this particular discrepancy, among a dozen or so of which Masson complains, shows the insidious way in which Malcolm is alleged to have manipulated Masson’s words to place him in an unfavorable light. Malcolm quotes Masson as saying, “They [analysts] will want me back, they will say that Masson is a great scholar, a major analyst-after Freud, he’s the greatest analyst who ever lived.” Malcolm, Annals of Scholarship: Trouble in the Archives — II, The New Yorker, Dec. 12, 1983 (Malcolm II), at 60, 118. Anyone reading this self-appraisal would be hard pressed to avoid the conclusion that Mas-son is an egomaniac.
Masson denies making this statement and, for purposes of summary judgment, we must assume he never did. The district court nevertheless held that “[i]n light of the many egotistical and boastful statements that Masson made in tape-recorded comments ... plaintiff has not demonstrated clear and convincing evidence from which a reasonable jury could conclude that Malcolm entertained serious doubts about the accuracy of the passage.” Majority op. at 1543. The majority agrees, noting that “[t]he purportedly fictionalized quotation actually reflects the substance of Masson’s self-appraisal.” Id. at 1542. This rationale is explosive. What the court is saying, in effect, is that if you make statements that could reasonably be construed as boastful or arrogant (or callous or stupid or reflecting any other trait of character or intellect) the reporter may attribute to you any other statement reflecting that same trait.
The enormous sweep of this principle can best be appreciated by comparing what Masson actually said with what Malcolm attributed to him. Masson’s statements are materially different both in tone and content from what Malcolm reports him to have said; they are hardly the ravings of a lunatic. The majority, for example, relies on Masson’s statement that “for better or for worse, analysis stands or falls with me now.” Id. at 1542. Plucked out of context, this statement sounds like an egotistical self-appraisal of Masson’s pivotal status in the profession. Context, however, makes it clear that Masson was not describing his own abilities but the materials he claims to have discovered. Indeed, when Malcolm challenged him by saying “Well that’s a very grandiose thing to say,” Mas-son responded, “Yeah, but it’s got nothing to do with me. It's got to do with the things I discovered.” Excerpt of Record (ER) at 128 (emphasis added). For Malcolm to have truncated Masson’s actual statement and quoted it out of context (“analysis stands or falls with me now”) would itself have violated professional standards.3 But using this and other snatches as yarn from which to weave a wholly different statement to be passed off as a quote from Masson is a power few self-respecting journalists arrogate to themselves. See pp. 1556-62 infra.
The majority also relies on Masson’s statement that “it’s me and Freud against the rest of the analytic world.... Not so, it’s me. It’s me alone.” Supplemental Excerpt of Record (SER) at 38-39. Again, freed from context, this snippet seems to support the majority’s conclusion that Mas-*1551son thought himself the greatest analyst who ever lived. But context gives the statement a far different east. Immediately before this paragraph, Masson says, “Talk to enough analysts and get them right down to those concrete issues and you watch how different it is from my position. It’s utterly the opposite and that’s finally what I realized, that I hold a position that no other analyst holds, including, alas, Freud.” Id. at 38 (emphasis added). When read against this background, Masson’s next statement, that “it’s me and Freud against the rest of the analytic world_ Not so, it’s me. It’s me alone,” sounds much less narcissistic: It’s clear he’s not talking about his preeminence in the profession, but about the fact that his position on a particular issue is shared by no one else. True, there is a healthy element of boasting in Masson’s statement; people often take pride in holding unpopular positions. But that is a far cry from asserting that others will see him as “the greatest analyst who ever lived.” At least, I respectfully submit, a jury could reasonably conclude that the two are materially different.4
Another example of how broadly the majority’s rationale sweeps is its willingness to approve Malcolm’s use of the loaded phrase “intellectual gigolo,” majority op. at 1540-41, when Masson denies having so described himself. Like “greatest analyst who ever lived,” “intellectual gigolo” is particularly damning because of its graphic imagery and the emotional impact it is likely to have on the reader. The majority is willing to say close enough, principally on the basis of Masson’s statement that Kurt Eissler and Anna Freud viewed him as
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.
ER at 66 (emphasis added). The majority concludes that intellectual gigolo is a rational interpretation of these comments because “[t]he descriptive term ‘intellectual gigolo,’ as used in this context, simply means that Masson’s views were privately entertaining, but publicly embarrassing to Freud and Eissler.” Majority op. at 1541 (internal quotations omitted).
To reach this conclusion, the majority must give Malcolm the benefit of every doubt. In the first place, the majority accepts the most benign interpretation of gigolo, “a professional dancing partner or male escort.” Webster’s Ninth New Collegiate Dictionary 517 (1984) (definition 2). But a far more common definition of gigolo is “a man supported by a woman usu. in return for his attentions,” id. (definition 1), or “[a] young man who is kept as a lover by a woman.” American Heritage Dictionary of the English Language 556 (New College ed. 1969) (only definition).5 Malcolm herself, during a deposition, testified that she construed gigolo as connoting “selling your sexual favors.” SER at 61.
Fairly read, intellectual gigolo suggests someone who forsakes intellectual integrity in exchange for pecuniary or other gain. Certainly, a jury might so conclude. For an academic to refer to himself as an intellectual gigolo is such a devastating admission of professional dishonesty that a jury could well conclude that it is libelous. I can see no justification for giving this emotionally loaded term the most innocuous conceivable interpretation, an interpretation contrary to the one in fact intended by the author.6
*1552Even accepting the majority’s bland definition of “intellectual gigolo,” I fail to see how the term can fairly be derived from Masson’s actual statement. In the quoted passage, Masson discusses Eissler’s and Anna Freud’s attitude toward him; apparently they liked him personally but they thought him “too junior within the hierarchy of analysis” for them to be publicly associated with him. Being too junior to be taken seriously is quite different from being a public embarrassment; one suggests that Masson is a young man with potential, the other makes him out to be a clown.7
*1553Yet another abuse condoned by the majority’s analysis concerns the passage attributing to Masson the statement that, had he been allowed to move into Anna Freud’s house in London, he would have made it “a place of sex, women, fun.” Malcolm, Annals of Scholarship: Trouble in the Archives — I, The New Yorker, Dec. 5, 1983 (Malcolm I), at 59, 93. The majority justifies Malcolm’s fabrication of this pat little phrase by quoting Masson’s statements that “[tjhey’re going to be calling the police on me every, every time I give a party or something,” and that “I could have had some fun.” Majority op. at 1542. These references support only use of the word “fun”; to justify the “sex” and “women,” the majority digs far into Mas-son’s past, noting that he had “boasted [to Malcolm] of his sexual prowess,” and had “told Malcolm that he had slept with over 1,000 women before he became an analyst.” Id. at 1542 (emphasis added).
The majority’s reliance on this remote and inapposite remark, made by Masson during the course of an entirely unrelated conversation, demonstrates just how far afield a journalist may roam under the “rational interpretation” approach. To be sure, if one digs through the over one thousand pages of interview transcript, one occasionally finds the word sex; specifically, Masson did discuss his exploits as a young man, albeit with some remorse.8 But what does that prove? In effect, the majority is saying that, because of his wayward youth, Masson is the kind of guy who probably would use the Freud house for “sex, women, fun,” and therefore Malcolm was entitled to make him say so to the world. I respectfully suggest that if authors are given license to invent quotations on the basis of what they perceive to be a speaker’s character, there are no words whatsoever that they cannot put into a subject’s mouth. As more fully discussed below, see pp. 1557-62 infra, that practice is roundly denounced by most journalists: “It is never justifiable for a journalist to make up quotations, however plausible or characteristic_” J.L. Hulteng, Playing it Straight: A Practical Discussion of the Ethical Principles of the American Society of Newspaper Editors 64 (1981).
Yet another abuse sanctioned by the majority is the passage which ends with the sentence “Well, he had the wrong man.” See majority op. at 1546. Because the passage appears in the taped transcripts, we have a road map as to what Malcolm did: She deleted 33 words out of a 40-word sentence, utterly changing Masson’s meaning so as to make him say the antithesis of what he actually said. In this passage, Masson reports a conversation with Eissler in which Eissler asks him to leave quietly. Masson asks the rhetorical question: “Why should I do that? Why? You know, why should one do that?” In the article, Malcolm has Masson responding to this question as follows: “ ‘Because it is the honorable thing to do.’ Well, he had the wrong man.” The meaning of this exchange is clear: Masson is supposedly saying that Eissler had the wrong man if he expected Masson to do something honorable. Mas-son’s actual answer (with the deleted words emphasized) was quite a bit more elaborate: “ ‘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.” Masson was clearly saying that he is the wrong man to be bribed into silence by the hope that they would bring him back a few years later.
The contrast between the two statements could not be sharper. As reported by Malcolm, Masson portrays himself as a swine, boasting that he would never be swayed to *1554do the right and honorable thing. Mas-son's unedited statement makes him sound more like a hero, someone willing to speak the unpleasant truth even if it damages his career. As more fully discussed below, the selective editing of quotations so as to radically alter their meaning is anathema among respectable journalists. See pp. 1557-62 infra. The majority’s willingness to approve Malcolm’s alteration on the ground that she could reasonably have understood Masson to be calling himself a swine demonstrates that the majority’s rationale has no meaningful bounds.
The examples I have given are illustrative; each of the other quotations of which Masson complains are also distorted to a greater or lesser extent.9 In each case Malcolm has allegedly disregarded what Masson actually said, and substituted another phrase or series of phrases — frequently with the skilled hand of the experienced author10 — to paint an image materially different from what Masson’s own words would have conveyed. Cumulatively, these alleged fabrications fit into a pattern that makes Masson appear more arrogant, less sensitive, shallower, more self-aggrandizing, and less in touch with reality than he appears from his own statements. While Malcolm was entitled to draw such inferences on the basis of her interview and to so describe Masson, she was not entitled to manufacture support for her conclusion by putting words in his mouth. By so doing, she crossed the line between poetic license and license. The latter the first amendment does not protect.
B. The majority distills its legal standard from a series of cases, none of which supports its position. Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446 (3rd Cir.1987), which is the most analogous, involved a Spanish-language newspaper’s story on the mayor’s speech, delivered in English, about the problem of litter in minority communities. The newspaper’s headline asserted that the mayor had used the term “cerdos,” a word that means “pigs,” in referring to Hispanies. The court found that “cerdos” was also a fair translation of Jitterbugs, a word with no exact Spanish equivalent. In ruling for the defendant, the Third Circuit noted that “a translation may not always reflect the nuances and subtleties of the original language. This is especially true in the present case, because it is not controverted that there is no exact Spanish word for litterer or litterbug.” Id. at 452. Even then, the Third Circuit did not hold, as the majority does here, that the plaintiff could never prove malice; it merely held that, in light of the difficulties inherent in translation, “it was critical to the plaintiff’s case that he meet this reality with countervailing factual evidence of actual malice. This he failed to do. In failing, he created no genuine issue of material fact.” Id.
*1555Judge Aldisert’s carefully crafted opinion in Dunn provides scant support for the majority’s conclusion in our case. The problems inherent in translating from one language to another don’t exist when everyone is speaking English. Translation necessarily involves a judgment: The translator must select the foreign-language word that best corresponds to the English word the subject actually uttered; even more discretion is called for when no precise translation is possible. But no judgment is required in quoting an English-speaking person in English.
Insofar as Dunn is relevant, it supports Masson. Even in the peculiar situation involving the translation of a term that had no Spanish equivalent — a situation where the newspaper could not avoid exercising judgment — the Third Circuit allowed for the possibility that malice could be established by collateral evidence; it held only that malice could not be inferred from use of the term “cerdos” alone. Because “cer-dos” was a fair translation of litterbugs, “it was critical to the plaintiff’s case that he meet this reality with countervailing factual evidence of actual malice.” Id. Plaintiff lost because he failed to present such additional evidence.
Here, there is a mountain of “countervailing factual evidence” tending to show malice: assurances Malcolm allegedly gave Masson that all quotes would be verbatim; the existence of tape recordings for many of the conversations; that Masson advised The New Yorker’s, fact-checkers that he was being misquoted; evidence that at least one of the quotations was changed, apparently in Malcolm’s handwriting, to make it more bombastic but less accurate. See pp. 1566-69 infra. Such evidence, absent in Dunn, could easily support a jury’s determination that the alterations in Masson’s quotations were deliberate or reckless, not merely careless, accidental or negligent.
Even less helpful to the majority than Dunn is the Second Circuit’s opinion in Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied sub nom., Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). Hotchner involved Castillo-Puehe’s memoir of his days with Ernest Hemingway. Plaintiff raised several claims of libel, one of which centered around a statement, attributed to Hemingway, that was graphically derogatory of the plaintiff. The court held that Doubleday & Co., which published the English translation of the book in question, could not be held liable because the “incident itself is believable and, as all the witnesses at trial agreed, the language used and sentiments expressed were not uncharacteristic of Hemingway.” 551 F.2d at 914. Doubleday’s editor verified the statement as best she could, asking the author (who claimed to have overheard the statements) to confirm his recollection of it. Id. Under those circumstances, the court held, there could be no malice. The court’s rationale is instructive: “Where a passage is incapable of independent verification, and where there are no convincing indicia of unreliability, publication of the passage cannot constitute reckless disregard for truth.” Id.
As an afterthought, Hotchner noted that Doubleday had fictionalized the passage somewhat by deleting the most graphic and stinging of Hemingway’s remarks and replacing them with the bland “I don’t trust him.” 11 The court rejected the argument that this change in the language of the quotation could serve as a basis for a libel verdict: “[T]he change did not increase the defamatory impact or alter the substantive content of Hemingway’s statement about Hotchner. If Doubleday could not have been liable for publishing the uncut version, it cannot be liable for deciding to make the passage less offensive to Hotch-ner.” Id. (emphasis added).
I cannot, as the majority apparently does, read this passage for the proposition that a writer may alter quotes so as to make them defamatory and then attribute *1556them to a third party with impunity. The Second Circuit held only that plaintiff could not base a claim on the changes in the Hemingway quote because the changes “did not increase the defamatory impact” of the quote. In relying on Hotchner, the majority makes far too much out of far too little.
Hotchner, however, is relevant and, like Dunn, helps Masson. It provides a fair and reasonable standard for evaluating a publisher’s responsibility for defamatory quotations. As noted, the court held that Doubleday could not have been reckless as to the accuracy of the passage in question because (1) the incident was believable; (2) the passage sounded like Hemingway; (3) there were no convincing indicia of unreliability; and (4) the passage was incapable of independent verification. As more fully discussed below, the third and fourth of these factors cut very sharply against the defendants in this ease. See 1566-70 infra. With tapes in hand and fact-checkers alerted to Masson’s protestations that he had been misquoted, defendants had the means for verifying the accuracy of the quotations and the “convincing indicia of unreliability” that should have prompted them to do so. Applying Hotchner to this case leads precisely to the opposite conclusion from that reached by the majority.
The majority also relies on the Seventh Circuit’s opinion in Carson v. Allied News Co., 529 F.2d 206 (7th Cir.1976), but as I read Carson, it is more accurately described as conflicting with today’s ruling. Judge Sprecher’s stern admonition to journalists (“In the catalogue of responsibilities of journalists, right next to plagiarism ... must be a canon that a journalist does not invent quotations and attribute them to actual persons,” id. at 213) stands in stark contrast to the majority’s benediction of the practice of fabricating and doctoring quotes. Malcolm here has admitted that a conversation she reported as having had with Masson did not occur at the time or place she indicated in her article. See Clerk’s Record (CR) 95 at paragraphs 14, 15. Masson, in turn, claims that he never made the statements attributed to him during that mythical conversation. If Carson does not cover a situation where the journalist invents a conversation that never took place and reports words that the subject never uttered, I am not sure exactly what it does cover. As with Dunn and Hotchner, the majority avoids a circuit conflict only by drawing minute distinctions not supported by the rationale of the opinion or the facts of the case. Despite the majority’s attempt to close ranks with our sister circuits, today’s decision stands in conflict with that of every other circuit that has addressed the issue.
The majority also places oblique reliance on Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), principally for the proposition that “malice may not be inferred from inaccurate language chosen to describe an event where the description is ‘ “one of a number of possible rational interpretations” of an event “that bristled with ambiguities.” ’ ” Majority op. at 1539 (quoting Bose, 466 U.S. at 512-13, 104 S.Ct. at 1965-66 (quoting Pape, 401 U.S. at 290, 91 S.Ct. at 639)). Bose and Pape are not on point; the language they employ is tantalizing but not germane. While Masson’s meaning might have been ambiguous, there was no ambiguity as to what words he uttered. Had Malcolm sought to paraphrase Masson’s statements and, in doing so, used inopportune language that changed the nuance of what Masson said, she would have fallen squarely under the protective umbrella of the first amendment. As Bose points out, a writer faced with the “descriptive challenges,” 466 U.S. at 512, 104 S.Ct. at 1965, inherent in recounting an event should not be punished for the use of a malapropism “simply because an intelligent speaker would have to know that the term was inaccurate in context, even though he did not realize his folly at the time.” Id. at 513, 104 S.Ct. at 1966.
A writer purporting to quote a third party faces no such interpretive challenges. By the use of quotation marks, she is representing that the choice of language was *1557the speaker’s, not her own. To be sure, plaintiff must still show that the writer was aware, or should well have been aware, that the quoted language was inaccurate. But making sure that quotations are accurate is a far simpler task than meeting the “descriptive challenges” a writer must face in supplying her own characterization. Writers purporting to attribute a quotation are not, in my view, entitled to the type of broad deference afforded by Bose to writers faced with describing an event “that bristle[s] with ambiguities.” Id. at 512, 104 S.Ct. at 1966 (quoting Pape, 401 U.S. at 290, 91 S.Ct. at 639). The Supreme Court drew this distinction neatly in Pape:
A press report of what someone has said about an underlying event of news value can contain an almost infinite variety of shadings. Where the source of the news makes bald assertions of fact— such as that a policeman has arrested a certain man on a criminal charge — there may be no difficulty. But where the source itself has engaged in qualifying the information released, complexities ramify. Any departure from full direct quotation of the words of the source, with all its qualifying language, inevitably confronts the publisher with a set of choices.
401 U.S. at 286, 91 S.Ct. at 637 (emphasis added).
Although Pape permitted a news magazine to publish out-of-context quotations from a report of the Civil Rights Commission, it certainly did not purport to sanction the use of invented quotations. Selecting what portions of a text to excerpt involves an exercise of editorial judgment and Pape protects that judgment. But Pape does not hold that an author can invent or alter quotations so long as the doctored quotes are rational interpretations of what the subject said.
C. Because there are no cases precisely on point, I would start by examining the policies of the first amendment as interpreted by the Supreme Court in New York Times v. Sullivan and elsewhere. As I read Sullivan and its progeny, they are designed to achieve two closely related but distinct purposes. First, they protect journalists and publishers from liability based on errors of fact they might commit in doing their jobs honestly and professionally. The reason for this is simple: Newspapers and other media regularly digest a veritable avalanche of facts; these facts must be gathered from diverse sources, not all of equal reliability; judgments as to accuracy must often be made on the basis of incomplete information and under the pressure of a deadline. Newspapers might never be published if they were required to guarantee the accuracy of every reported fact; time and manpower do not permit the type of verification that would prevent all mistakes. To avoid the stifling effect of massive liability, the press is given wide berth on questions of fact; reporters are held liable only for deliberate falsehoods or where they act recklessly.
The second policy involves errors of judgment. Closely related to the decision of what facts to report is the decision of how to report them. Words are a writer’s stock in trade and selecting the words used to describe a particular event is not always a precise science. Indeed, selection of words is recognized as an art — literature— and creativity in the use of language is an important value in a free society. The first amendment fully protects this prerogative of the author and publisher; they are not required to agonize over every word or worry whether some libelous inference might be distilled from it. Rather, if there is an ambiguity, the writer is entitled to exploit it to the fullest, selecting such language as fairly comports with a reasonable view of the matter, not necessarily the view that would please the source. That is the proposition for which I understand Bose and Pape to stand.
These two policies provide, quite properly, a wide arena for journalists to perform in. We recognize that, as a consequence, people may suffer uncompensated harm, but this is a cost we willingly assume in order to preserve a far higher value: a free and robust press.
*1558The right to fabricate or alter quotations is different. It does not serve the policy of protecting the press from errors of fact. What someone says is a fact no less than what someone does. See Taylor, Holier Than Thou, New York Magazine, Mar. 27, 1989, at 35. The press is already protected from liability for inadvertent or negligent misquotations by the requirement that a libel plaintiff prove reckless or deliberate conduct. Thus, if a reporter takes notes and is unable to catch every word, she will be protected from liability even though she was negligent in failing to use a tape recorder or in double-checking her source. New York Times v. Sullivan’s actual malice standard protects even the reporter who negligently misquotes a subject. Harte-Hanks Communications, Inc. v. Connaughton, — U.S. -, -, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989).
The real question here is whether changing the language of quotations is the type of judgment that a reporter must be free to exercise in performing her duties. Or, put somewhat differently, is the right to doctor quotations important to the operation of a free and robust press? The majority implicitly holds that it is. The answer, I submit, is far more complex; the question bears close analysis. For guidance, I would rely not on what the defendants here tell us in seeking to avoid liability, but on what is said by working journalists outside the litigation context.
Whether, and under what circumstances, journalists may alter or invent quotations has been the subject of considerable soul-searching within the profession. The fundamental rule, widely accepted, is that “[qjuotation marks mean literally that the words they enclose are exactly as the source gave them — verbatim.” M.V. Charnley & B. Charnley, Reporting 248 (4th ed. 1979). Accord The Associated Press Stylebook and Libel Manual 183 (1982) (direct quotations are used “[t]o surround the exact words of a speaker or writer when reported in a story”); J.L. Hulteng, The Messenger's Motives: Ethical Problems of the News Media 70 (1976) (“[mjost of the newspaper codes or canons tend to stress literal accuracy when quoting news sources”). That is the standard to which The New Yorker aspires; according to William Shawn, editor-in-chief at the time Malcolm’s article was published, “the New Yorker ‘ideal is a verbatim quote’....” Lipman, At the New Yorker, Editor and a Writer Differ on the ‘Facts’, Wall St. J., June 18, 1984, at 1, col. 4.
Journalists have recognized, however, that “as a practical matter, it is not always possible for a reporter to be so literally accurate, unless there is a prepared manuscript, a trial transcript, or a tape recording to turn to.” J.L. Hulteng, The Messenger’s Motives, at 70. Accordingly,
some working conventions have been built into the journalist’s ethic where quotations are concerned. Even if every syllable hasn’t been captured as uttered, even if every article isn’t exactly in place, the quote can still be considered an acceptably accurate one if it honestly reflects what the speaker said.
Id. at 70-71. See also J. Olen, Ethics in Journalism 100 (1988) (“Not to clean up quotes is to make intelligent speakers look stupid and stupid speakers look stupider.”); S. Klaidman & T.L. Beauchamp, The Virtuous Journalist 50 (1987) (“standards can be set too high as well as too low”).
Some reasons for failing to use verbatim quotes are relatively uncontroversial. Thus, the AP style manual advises that “[qjuotations normally should be corrected to avoid the errors in grammar and word usage that often occur unnoticed when someone is speaking but are embarrassing in print.” Associated Press Stylebook at 184. Also, “[fjor those who must rely on written notes, there is the impossibility of getting all the words down, plus errors in note-taking and in deciphering hastily scribbled notes.” J. Olen at 99.
Other types of changes are more controversial but, under appropriate circumstances, they are considered acceptable by many, but not all, journalists:
Deliberate improvements are often the result of compassion for the speaker. Many people speak less carefully than they write. They tend toward false *1559starts, rambling and incomplete sentences, poor word choices, errors in agreement, and other infelicities that we are used to hearing but not reading. Thus, verbatim transcripts can prove an embarrassment to many speakers. Also, corrections, as well as condensations, can result from the reporter’s desire to make the copy read better.
Id. Accord M.V. Charnley & B. Charnley at 248-50. Alterations of this type are not considered acceptable by everyone because they call for a judgment as to whether the speaker’s meaning has been accurately preserved. Some authorities and publications therefore frown on the practice. M.V. Charnley & B. Charnley at 248; see p. 1478 infra. Even those who deem it acceptable do so only subject to an “essential qualification”: The altered quote must “honestly reflect[ ] what the speaker said.” J.L. Hul-teng, The Messenger’s Motives, at 71. The authorities are adamant and uniform in condemning the use of altered quotes that are not faithful to the meaning intended by the speaker:
No reporter has the right to manipulate the words of others so as to convey impressions that are distortions of the spirit of those words. You may misplace a comma or substitute one adjective for another and still not alter the thrust of a quote or paraphrase. But you have no license to violate the source’s intent by changing the meaning of what he said, no matter what the motivation or temptation.
... The manipulation — or fabrication— of a quote in order to condition the reader’s perception of a news figure or a news situation is a breach of journalistic ethics....
Absolute, literal accuracy can rarely be achieved, as we have noted earlier, but it is a firmly-rooted journalistic convention that the central meaning, the spirit, of a speaker’s words must be truly conveyed.
Id.12 See also J.L. Hulteng, Playing it Straight: A Practical Discussion of the Ethical Principles of the American Society of Newspaper Editors 64 (1981) (“Both the news source and the reader may be badly served unless the reporter operates with a surgeon’s precision and with the fairest of motives.”).
A more complex problem is presented when the story in question does not involve straight news reporting, but contains material of more lasting literary value, such as is frequently published by The New Yorker. A school of thought known as the New Journalism advances the view that an author has the right to vary or rearrange the facts of a story in order to advance a literary purpose.13 This is a highly controversial view among journalists, one not shared by many who have spoken on the subject.14
*1560The profession’s attitude toward this practice is perhaps best illustrated by an incident, involving The New Yorker, that took place in mid-1984, just a few months after Malcolm’s articles were published. In the June 18, 1984, issue of The Wall Street Journal, New Yorker writer Alistair Reid disclosed that he “regularly used composite characters, nonexistent settings, and invented dialogue in what were purported to be nonfiction articles.” J. Olen at 82. Reid explained that “[i]n reporting with some accuracy, at times we have to go much further than the strictly factual.... Facts are part of the perceived whole.” Dowd, A Writer for The New Yorker Says He Created Composites in Reports, N.Y. Times, June 19, 1984, at 1, col. 5. Reid also explained: “I would have 30 or 40 conversations with people and reflect their preoccupations .... If one followed them exactly, it would be terribly boring for the reader.” Id. Reid claimed the right to manipulate the details of stories to get at a greater truth — the overall panoramic view that he wished his readers to experience.
The next day, The New York Times ran an editorial titled “The Fiction of Truth,” criticizing Reid. The Times was perturbed that Reid had blurred the line between fact and fiction, to the ultimate detriment of the reading public and the journalistic profession:
[Fjictional speculation and factual reporting provide radically different reading experiences. Fiction thrills by analogy, by the knowledge that unreal events can illuminate truthfully. Nonfiction excites by experience, by extending a reader’s knowledge of reality and quest for understanding. Why should not writers, like carnival barkers, pretend that fictions are facts? First, last and always, because the reader lured into the House of Facts, poor sap, has paid to experience facts. The tritest truth is that the truth is more than facts.... A fact is a true phenomenon; truth is the ideal explanation of a fact. That is not a particularly difficult distinction. Yet too many people find profit in blurring it. Some mongers of mere fact, notably salesmen and politicians, routinely pretend to be revealing truth. And some mongers of opinion, claiming like Mr. Reid to have hold of a singular truth, are openly contemptuous of fact. When either type shows up in our own ranks — or pages — we feel both cheated and devalued. Wrong truths are always correctable, with facts. Fictional facts are forever counterfeit.
The Fiction of Truth, N.Y. Times, June 20, 1984, at 26, col. 1. Accord Hersey at 20 (“In fiction, the writer’s voice matters; in reporting, the writer’s authority mat-ters_ We read journalism ... to try to learn about the external world ... and the quality we most need in our informant is some measure of trustworthiness.”).
In the days that followed, newspapers and magazines coast to coast carried the reactions of other journalists to the Reid disclosure, most of them negative. The New York Times quoted Fred Friendly, former president of CBS News and senior program adviser at the Columbia University Graduate School of Journalism, as saying “A composite is a euphemism for a lie_ It’s disorderly_ It’s dishonest, and it’s not journalism.” N.Y. Times, June 19, 1984, at 1, col. 5. Jack Beatty, senior editor of the Atlantic, when asked whether such practices were acceptable at his publication, replied, “No. Absolutely not. Our practice here is to check everything.” Feeney, New Yorker Responds to Accuracy Issue, Boston Globe, June 20, 1984, at 44, col. 4 (emphasis original). Time magazine concluded that “Any departure from fact is the first step on a slippery slope toward unbelievability.” McDowell, New Yorker Editor Calls Reporting Style Wrong, N.Y. Times, July 3, 1984, at C9, col. 1. James A. Michener, writing in the Los Angeles Times, expressed his respect for Reid but stated: “It is not healthy for a magazine to permit such deception, and if I were an editor I would try to prevent it.” Id. The New York Times concluded that Reid’s technique “would violate the practices of most respected newspapers and maga*1561zines.” N.Y. Times, June 19, 1984, at 1, col. 5.
Some journalists were more sympathetic, but nevertheless criticized Reid because he had failed to disclose the practice to his readers, who were therefore misled. See, e.g., N.Y. Times, July 3, 1984, at C9, col. 1 (William F. Buckley, Jr.: “if that kind of thing is going on, somewhere along the line a reader should be tipped off”); N.Y. Times, June 19, 1984, at 1, col. 5 (Ken Auletta: “We shouldn’t take shortcuts without telling the reader we’re taking shortcuts, and by that I mean labeling it as fiction.”).
While the Alistair Reid incident, and others like it,15 have attracted a great many comments from the journalistic and publishing professions, the most telling reaction was that of The New Yorker itself. At first, editor-in-chief William Shawn defended Reid.16 Perhaps in response to the storm of criticism, on June 29, 1984, Shawn did an about-face, circulating a memorandum to The New Yorker staff condemning Reid’s actions:
“While he says he did not intend to deceive anyone, he violated New Yorker principles. He made a journalistic mistake. He was wrong. The editors of The New Yorker do not condone what he did.
“We have eight people in our Checking Department who spend their days and, if need be, their nights rigorously verifying every checkable fact before it goes into the magazine. Every writer is held to the same severe standards of factuality. Errors still occur, but they are inadvertent and rare.
“The New Yorker has devoted itself for fifty-nine years not only to fact and literal accuracy but to truth. And truth begins, journalistically, with the facts.”
N.Y. Times, July 3, 1984, at C9, col. 1. Shawn also included the following exhortation in his memorandum:
“We do not permit composites.
“We do not rearrange events.
“We do not create conversations.’’
Id. (emphasis added).
The controversy surrounding the Reid disclosure is instructive. First, it points to the great resistance on the part of journalists and publishers to the blurring of fact and fiction. While it is recognized that many journalists do it, see Turovsky, Did He Really Say That?, Colum. Journalism Rev., July-Aug. 1980, at 38-39, the practice is widely condemned by those who have given the subject thoughtful consideration.
Moreover, what Reid was criticized for doing pales by comparison to Malcolm’s alleged transgression. Reid rearranged events, created fictional characters and invented quotations, as a literary device, a way of getting his point across more effectively. But the quotations he invented or modified were not attributed to specific, identifiable people; they were attributed to such literary fictions as a taxi driver, people in a bar, an unnamed friend attending a college graduation. Reid used these fictional characters to better convey his own ideas; he did not put words into the mouths of real, flesh and blood individuals with reputations to be tarnished. The criticisms leveled at Reid must fall far more harshly on a journalist who deliberately twists the words of real, named individuals she purports to be quoting.17 While I can*1562not claim to have made an exhaustive survey of the relevant literature, the materials I have examined — and there are quite a few of them — contain not a single instance where a journalist asserted the right to distort quotes of real, identified people. I find it difficult to conclude, therefore, that the right to do so is important to the proper functioning of the press in a free society.
To be sure, the inability to modify quotes places a significant constraint on writers, but it is one that responsible journalists seem to accept willingly. Professor Olen makes the point bluntly: “If the speaker’s actual words are completely unusable, even with a little help, the reporter can always resort to indirect quotation or a combination of indirect and direct, putting quotation marks around only usable phrases.” J. Olen at 100-01. The point is made even more forcefully in the April 13, 1984, issue of Winners & Sinners, an internal “bulletin of second-guessing issued occasionally from the news desk of The New York Times”:
When is a quote not a quote? “That was a center of world terror that doesn’t exist anymore,” we quoted Ariel Sharon as having said of southern Lebanon (Feb. 26). But what he said — and what the reporter filed — was less succinct: “That was a center of world terror; that center of world terror doesn’t exist anymore.” Scant difference in meaning, but a larger difference ethically: Quotation marks guarantee the reader that we’re transmitting the subject’s words, literally. If the speaker isn’t terse enough to suit us, we can tidy up the prose — but only after removing the quotation marks.
Tone of the Times, Winners & Sinners, Apr. 13, 1984, at 1 (emphasis original).
The standards and aspirations of the profession are not, of course, dispositive of the legal question before us,18 Harte-Hanks Communications, Inc. v. Connaughton, — U.S. -, -, 109 S.Ct. 2678, 2683, 105 L.Ed.2d 562 (1989). But our ruling rests on constitutional grounds; it limits the operation of state libel law in order to preserve the higher values protected by the first amendment. Unlike my colleagues, I am unable to construe the first amendment as granting journalists a privilege to engage in practices they themselves frown upon, practices one of our defendants has flatly disowned as journalistic heresy. See p. 1561 supra. The press can legitimately claim the right to editorial judgment when it is selecting the words itself; it cannot, and does not, claim the right to select words for others.
II
Unlike the majority, I would start with the proposition that what somebody says is a fact, and that doctoring a quotation is no more protected by the first amendment than is any other falsification. In resolving a case such as this I would therefore engage in a five-step inquiry: (1) Does the quoted material purport to be a verbatim repetition of what the speaker said? (2) If so, is it inaccurate? (3) If so, is the inaccuracy material? (4) If so, is the inaccuracy defamatory? (5) If so, is the inaccuracy a result of malice, i.e., is it a fabrication or was it committed in reckless disregard of the truth? If the answer to any of these questions is no as a matter of law, the inquiry stops and the defendant wins. If they could all be answered yes, I would send the matter to the jury. Tested under this standard, the summary judgment granted by the district court in favor of defendants must be reversed.
(1) Does the Quoted Material Purport to be a Verbatim Rendition of what Masson Said?
While putting a statement in quotes normally indicates that it is precisely what the speaker said, that is not always the proper inference. For example, in Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 721 P.2d 87, 228 Cal.Rptr. 206 (1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987), the defendant newspa*1563per published codefendant Bunzel’s review of a television documentary on sexual education produced by plaintiff. The review contained the following passage:
“My impression is that executive producer Walt Baker, who is also vice president in charge of programs for Channel 9, told his writer/producer, Phil Reeder, ‘We’ve got a hot potato here — let’s pour on titillating innuendo and as much bare flesh as we can get away with. Viewers will eat it up!’ ”
42 Cal.3d at 258, 721 P.2d at 89, 228 Cal. Rptr. at 208. The California Supreme Court held that, even though Bunzel used quotation marks, he was not in fact purporting to quote Baker:
Nowhere is it asserted as a fact that Baker made the disputed statement. Instead, Bunzel explicitly qualified the disputed statement by warning the reader that he was not reporting a fact but only giving his “impression.” By employing that term, Bunzel made it clear that he intended only to convey his opinion about what Baker might have said to his writer/producer.
42 Cal.3d at 263, 721 P.2d at 92, 228 Cal. Rptr. at 211.
Baker provides merely one example of how a writer may diffuse the inference that the material in quotes purports to repeat precisely what the speaker said. There are many others.19 The issue, as in Baker, is whether the reader is expected to understand that the quote is verbatim, a paraphrase or merely a rhetorical device.
The record here presents substantial evidence supporting the view that Malcolm uses quotation marks to indicate that she is reporting precisely what various speakers, including Masson, said. Unlike the reviewer in Baker, Malcolm does not use the quotation marks as a rhetorical device to emphasize her message; there is no cautionary language to put readers on notice that she is relating a “hypothetical conversation,” 42 Cal.3d at 264, 721 P.2d at 93, 228 Cal.Rptr. at 211, or a fictionalized account of Masson’s life told in the first person. Statements are attributed directly to him and to others without any indication that they had been materially edited, stylized or otherwise altered. The two long New Yorker articles purport to present a serious report of an academic debate in the psychoanalytic community; they contain absolutely nothing that would counsel the reader to doubt that Masson said precisely what Malcolm quotes him as saying. Cf. Baker, 42 Cal.3d at 260, 721 P.2d at 90, 228 *1564Cal.Rptr. at 209. Finally, there is “The New Yorker’s vaunted reputation for accuracy,” T. Goldstein at 206, and the public statements made by its editors reinforcing their commitment to this principle. See p. 1569 infra. There is thus much in the record to support the view that The New Yorker’s readers would understand a quote to be a quote.
Masson’s case is far more like Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123, 212 Cal.Rptr. 838 (1985), which held that a magazine's false attribution to actor Tom Sel-leck’s father of statements about his son’s love life could support a cause of action for libel. The court noted that the article did “not merely express defendant’s opinion that plaintiff made statements about his son. Rather, [it] assert[ed] as a fact that plaintiff made the statements.” Id. at 1133, 212 Cal.Rptr. at 845. Like the article about Robert Selleck, Malcolm’s articles gave the clear impression that the subject had made the statements in the course of interviews with the reporter.
(2) Are the Quotes Inaccurate?
Where, as here, an interview is on tape, ascertaining whether a quotation is inaccurate involves a straightforward comparison between what the speaker said and what he is reported as having said. But, as Dunn demonstrates, occasionally even this inquiry may be fraught with difficulty. Where, for example, a translation is involved, or where the speaker’s statement is partially inaudible, the writer may have to make a judgment as to what the speaker actually said. If such judgment is required, the writer’s choice must be respected, absent a showing of deliberate or reckless fabrication.
There is- no claim here that Masson’s statements were inaudible, or that they were made in a language other than English. No judgment was therefore called for in determining what Masson actually said. Because what Masson was quoted as saying is alleged to differ from what he actually said, I would move on to the next inquiry.
(3) Are the Inaccuracies Material?
One need only read a few trial transcripts to realize that the way most people talk is not particularly suitable for publication. There are many fragments and other grammatical abuses; the speaker will often say “uh” and “ah” and “you know”; occasionally he will make a false start and go back and correct himself; he may introduce irrelevancies and go off on tangents. A conscientious reporter will try to fix some of these problems, both to make a more readable story and keep the speaker from looking foolish. Turovsky, Did He Really Say That?, Colum. Journalism Rev., July-Aug. 1980, at 39. Such cosmetic changes are not actionable because they are not material. They delete or correct matters that do not go to the substance of what the speaker has said and are irrelevant to the content of his communication.
None of the changes Masson complains of fit into this category. If we compare Masson’s version of what he said with what Malcolm quotes him as saying, it is clear that Malcolm’s alterations are designed to do more than clean up peripheral aspects of Masson’s language; they completely rephrase his statements or, in some instances, invent them out of whole cloth.
For example, the article quotes Masson as saying that Freud’s “entire theory after he abandoned seduction was the product of moral cowardice_” Malcolm II at 109. Masson, however, is taped as having said: “I think [Freud] was a great and remarkable thinker but he was still a, a, a man who just lost his courage_ He was a brilliant mind who didn’t have the courage to stick with things that he knew were true.” Transcript of the Masson/Malcolm Tapes, vol. 1, part 1, at MHO. While the two statements say generally the same thing, they are not the same. The quoted statement introduces “moral cowardice,” a different, and arguably stronger, term than “didn’t have the courage.” Moreover, the quoted statement deletes Masson’s tribute to Freud as “a great and remarkable thinker” and “a brilliant mind.” As a consequence of these changes, Masson is made to sound far more disdainful of Freud than *1565he actually was. While the statement, as altered, may or may not be libelous (the subject of the next inquiry), it is difficult to say that the changes were merely cosmetic or immaterial.20
(4) Were the Alterations Defamatory?
Under California law, “[ljibel is a false and unprivileged publication by writing, printing, ... which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Cal.Civ.Code § 45 (West 1982). The scope of libel under section 45 is construed broadly to encompass language having the natural tendency to injure reputation. Moore v. Greene, 431 F.2d 584, 592 (9th Cir.1970). Our inquiry here is whether the falsehoods in Malcolm’s articles “cast [Masson] in a disparaging light since they portray his language and conduct as crude, aggressive, and unprofessional.” Bindrim v. Mitchell, 92 Cal.App.3d 61, 77, 155 Cal.Rptr. 29, 38 (1979).
As discussed above, and as the majority seems to concede, California law recognizes a cause of action for libel on the basis of misquotations that have the same damaging effect as defamatory statements. Baker, 42 Cal.3d at 261, 721 P.2d at 91, 228 Cal.Rptr. at 210; Selleck, 166 Cal.App.3d at 1132, 212 Cal.Rptr. at 844. At least some of the misquotations, if proved at trial, would support a jury verdict for the plaintiff. See pp. 1549-54 supra.
Some of the other allegedly altered quotations would probably not be defamatory, at least standing alone, e.g. “it sounded better” and “Denise worries too much.” However, the various misquotations do not stand alone; they reinforce each other. Together they help paint Masson as a vain, shallow, disingenuous, intellectually dishonest, cold, heartless, self-absorbed individual. The tapes, containing Masson’s own words, paint a different picture. Or so a jury could reasonably conclude.
The majority relies on Herbert v. Lando, 781 F.2d 298 (2d Cir.), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986), to support its conclusion that the “intellectual gigolo” quote in particular is not defamatory. Majority op. at 1540-42. This reliance (on a case and a doctrine mentioned by neither party) is troubling for a number of reasons. For starters, while the first amendment limits the class of defamatory statements that can give rise to a cause of action for libel, whether or not a statement is defamatory in the first place is an issue of state law. The majority cites no California authority; Herbert’s “incremental harm” doctrine, as far as I can tell, has never been adopted as the law of California. In fact, the law of California leans in the opposite direction: In.order to determine whether a statement is one of fact, which is actionable, or opinion, which is not, “[t]he publication in question must be considered in its entirety; it may not be divided into segments and each portion treated as a separate unit.” Baker, 42 Cal.3d at 261, 721 P.2d at 91, 228 Cal.Rptr. at 209 (brackets and internal quotation marks omitted). To the extent the majority seeks to graft Herbert onto California defamation law, it fails to reconcile the apparent conflict, with the state supreme court’s opinion in Baker.
Second, the majority fundamentally misreads Herbert. Herbert scrupulously avoids holding that if incremental harm above nonactionable portions of a publication is only minimal, then the plaintiff cannot recover as a matter of law. Judge Kaufman discusses the doctrine (which he finds only in district court cases), but then explicitly refrains from applying it: “We believe, however, a reasoned and different ground exists in this case....” Herbert, 781 F.2d at 311 (emphasis added). The holding of Herbert is in fact very different, and quite unexceptional: The court concludes that if the defendants’ published view that Herbert lied about reporting war crimes is not actionable, then other statements merely implying the identical view are not actionable either. Id. at 312. This *1566is a far cry from saying, as does the majority, that any statement in a publication cannot be defamatory if the publication already contains a statement that is equally defamatory but unactionable, even if on an entirely different subject.
In fact, the incremental harm doctrine has never before been adopted by any federal appellate court. It has been explicitly and convincingly rejected by the D.C. Circuit, which noted that “[ejven the public outcast’s remaining good reputation, limited in scope though it may be, is not inconsequential.” Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 (D.C.Cir.1984) (Scalia, J.), rev’d on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The majority advances no rationale as to why we should breathe life into this stillborn doctrine.21
Finally, the majority’s reasoning fails on its own terms: Even if we assume California would adopt the majority’s incremental harm doctrine, we would be unable to find the “intellectual gigolo” quotation, or any of the others, nondefamatory as a matter of law. The majority finds “intellectual gigolo” (and by implication the other quotes at issue) no more defamatory than “the many provocative, bombastic statements indisputably made by Masson.” Majority op. at 1541. But the majority does not tell us which statements it is referring to. Fact is, the most “provocative, bombastic statements” attributed to Masson are the ones Masson disputes having made. The majority has pointed to not a single statement out of the 1056 page Mas-son/Malcolm interview that is so outrageous as to render the expression “intellectual gigolo” trivial by comparison. I believe there are none.22
(5) Were the Alterations the Result of Malice?
Having determined that Malcolm’s alterations of Masson’s statements were intended to be read as direct quotations, that Malcolm was not required to exercise judgment, that the alterations were material and that they were potentially libelous, I would then turn to the question of malice. Because I view quotations as facts, not opinion, I would ask a simple question: Did the defendants know that Masson’s actual statements differed from those attributed to him or did they act with reckless disregard with respect thereto? More precisely at this stage of the proceedings, I would ask whether the plaintiff has proffered sufficient evidence to allow a rational jury to so conclude. Because each defendant stands on a somewhat different footing, I will discuss them separately.
(a) Janet Malcolm
The circumstantial evidence that defendant Janet Malcolm acted with malice, deliberately or recklessly altering Masson’s statements, is very strong indeed. In the first place, Malcolm had in her possession tapes of many hours of interviews at the time she prepared the article. Many of the passages she attributes to Masson bear a striking resemblance to taped passages, except that key words are changed, added or deleted. This alone raises a strong inference that Malcolm took liberties with Mas-son’s quotes. At the very least, it suggests that she quoted from memory or *1567from handwritten notes and then neglected to verify the accuracy of the quotes against the tapes.23 It is significant in this regard that Malcolm was not working under a tight deadline. She had the luxury of drafting and editing her document at leisure; she apparently had a chance to review galley proofs. There is no suggestion that The New Yorker tore the manuscript out of her hands before she could verify its accuracy.
The record also contains at least one piece of direct evidence that Malcolm engaged in deliberate fabrication. Discussing his plans for Anna Freud’s house, Mas-son said, “it’s dark and somber and nothing went on in there. Boy, I was going to renovate it and open it up, and the sun would come in and there would be people and — Well, that’s what it needs, but it is an incredible storehouse. I mean the li-brary_” ER at 122. Malcolm’s typed draft reads, “Sun would have come pouring in, people would have come, there would have been parties and laughter and fun.” ER at 117. This sentence is crossed out, and the following sentence, to which Mas-son takes exception, is handwritten above it: “Maresfield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun.” Id. Since the alteration departs from Masson’s statement even more than Malcolm’s original version, the jury could easily infer that Malcolm made the change in a deliberate effort to distort what Masson said or with reckless disregard to whether it accurately reflected Masson’s words. More broadly, the jury might infer that Malcolm considered Masson’s quotes a proper subject for substantive editing, and that she did not feel constrained to quote accurately what Masson actually said.
Other, somewhat less compelling, indicia of malice round out the picture. For example, in her article Malcolm attributes certain of Masson’s statements to a telephone conversation. Malcolm II at 117--18. She now claims that those statements were, in fact, made while Masson visited her in May 1983, at a time when her tape recorder was broken. Her inconsistency might be viewed as poetic license, but it might also be taken as proof of deliberate fabrication. The jury might also find it significant that Malcolm represented to William Shawn, editor-in-chief of The New Yorker, that every quote from Masson was on tape, CR 101 at exhibit 14; she repeated the assertion in a letter to The New York Times. N.Y. Times Book Review, July 8, 1984, at 33, col. 1. She now takes the position that some of the conversations were not recorded and that she took notes. A jury might well conclude that Malcolm’s representation to her publisher that “everything was on tape,” and her public reiteration of that statement, were accurate and that her more recent claim that there were conversations not on tape is a fabrication.
Finally, Masson claims that Malcolm made affirmative representations to him about the accuracy of his quotations. According to Masson, Malcolm asked him whether she could tape record the interviews and “explained that this would be to [Masson’s] advantage, since it would mean there would be no misquotations.” CR 100 at 2. Also according to Masson, “[a]t several points throughout our interviews, I told her I was concerned that she quote me accurately. She said that she had it all on tape, and I was not to worry since all quotations would be verbatim.” Id. at 2-3. See also id. at 5 (“Malcolm repeatedly assured me that the quotations ascribed to me would be absolutely accurate, verbatim quotations, since they would come directly from her tapes.”). Should the jury believe Masson, they could view this as a significant indication of malice. First, they could consider it as proof that Malcolm intended to deceive Masson about her intentions with respect to the quotes. Also, if Mal*1568colm warranted to Masson that she would take all quotes verbatim off the tapes, I should think it would be at least reckless of her not to use the tapes to verify the accuracy of the quotes she used.
The jury may, of course, disbelieve Mas-son’s account of many of these disputed facts. Or, it may decide that, under all the circumstances, Malcolm was merely careless, not deliberate or reckless. But a jury might well come to a more sinister conclusion. I respectfully suggest that were a jury to do so on this record, we would exceed our authority in saying that they were wrong.
(b) The New Yorker
Even if Janet Malcolm were found to have acted with malice, it would not necessarily follow that The New Yorker did as well. Because Malcolm is claimed to be an independent contractor, not an employee, her state of mind would not necessarily be attributed to the magazine.24 The publication is not totally absolved from liability, however; the question is whether, given what it knew or should have known, it acted deliberately or with reckless disregard of the truth.
There is nothing on this record to suggest that The New Yorker was guilty of deliberate fabrication, except insofar as it might have knowingly approved Malcolm’s alterations. See n. 26 infra and accompanying text. However, there is plenty of evidence of recklessness.
First, Masson alleges that he brought the inaccuracy of the quotations to the attention of Nancy Franklin, a member of The New Yorker’s fact-checking department. CR 100 at 6. According to Masson, “I asked her if it would be possible for her to read back all the quotations ascribed to me, since we were finding so many errors in the few passages she asked me about. She said this was not possible, but that I was not to worry, there were tape-recordings of all the conversations, and they would be verbatim and accurate.” Id. at 6-7.25 At Masson’s insistence, Franklin promised to check with Malcolm about the possibility of having all the quotes read to him; Franklin promised to get back to Masson on the matter, but she never did. Id. at 7.26
Masson’s conversation with Franklin should have put The New Yorker on notice that something was amiss. Because Malcolm had represented to The New Yorker’s *1569editor-in-chief that all of her quotations were on tape, it would have been relatively simple to resolve the dispute. The New Yorker’s apparent failure to do so would justify a jury finding that the magazine acted in reckless disregard of the truth. See Harte-Hanks Communications, Inc. v. Connaughton, — U.S. -, -, 109 S.Ct. 2678, 2692, 105 L.Ed.2d 562 (1989) (“The newspaper’s decision not to listen to the tapes of the Stephens interview in Con-naughton’s home also supports the finding of actual malice.”).
In his brief, Masson claims that The New Yorker was once again put on notice of the alleged misstatement when Masson’s lawyer wrote to the magazine after the first part of the Malcolm article appeared. Brief for Appellant at 46. The New Yorker apparently did not attempt to verify the balance of the article or to make any corrections. A jury might reasonably infer recklessness from this conduct as well. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968) (“recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports”).
Finally, a jury could consider The New Yorker’s widely-acclaimed reputation for scrupulous accuracy in determining whether it acted in a reckless manner. See, e.g., Wall St. J., June 18, 1984, at 1, col. 4 (“the New Yorker, often touted in journalistic circles as a magazine whose statements of fact can be taken without benefit of any grains of salt”); id. (“ T would say they’re about the most careful (publication) about checking facts,’ says Spencer Klaw, editor of the Columbia Journalism Review.”); Boston Globe, June 20, 1984, at 44, col. 4 (referring to “the New Yorker magazine’s longstanding reputation for unrivaled accuracy”); N.Y. Times, July 3, 1984, at C9, col. 1 (quoting writer Renata Adler as stating that “The New Yorker set a kind of standard for factual accuracy”); id., June 20, 1984, at 26, col. 1 (describing The New Yorker’s fact-checkers as “legendary”); T. Goldstein at 206 (referring to “The New Yorker’s vaunted reputation for accuracy").
The New Yorker’s reputation for accuracy is no accident; it is an image it nurtures assiduously. At about the time Malcolm’s article was published, editor-in-chief William Shawn proclaimed that “New Yorker reporting is ‘as close to being scientific in its objectivity as reporting can be;’ ” he added that “the magazine tries to have ‘no advocacy, to have no prejudices’ ” and that “ ‘[a]t the New Yorker, not only accuracy but truthfulness is sacred.’ ” Wall St. J., June 18, 1984, at 1, col. 4. Martin Baron, head of The New Yorker’s fact-checking department that allegedly verified the accuracy of Malcolm’s articles, graphically announced: “ ‘If we say the paint on the wall of the hospital is yellow, it’s yellow’.... Every detail is ‘absolutely correct down to whether or not there were coffee stains and tobacco ashes on the floor of the hospital’ in a given piece.” Id. In a burst of exuberance, Shawn proclaimed that “ ‘the New Yorker is the most accurate publication not only in this country, but in the entire world.’ ” Id. As to quotations, Shawn declared that “the New Yorker ‘ideal is a verbatim quote.’ ” Id.27
Few publications have the bravado to give such categorical assurances to the reading public. By doing so, The New Yorker has induced a reasonable expectation of accuracy in the minds of sources and readers. The former are more likely to speak without reservation, lulled into believing that they will not be misquoted; the latter are more likely to accept at face value the quotes they read in New Yorker articles. A jury might well consider all of this relevant in determining whether The New Yorker was reckless.
(c) Alfred A. Knopf
Defendant Alfred A. Knopf’s potential liability stands somewhere between that of Janet Malcolm and that of The New York*1570er. While a book publisher, like a magazine publisher, has a right to rely on those who submit manuscripts to it, it does not have the right to ignore clear indications that material it is about to publish is libelous. Knopf published Malcolm’s article in book form in May 1984, five months after the article first appeared in The New Yorker. By that time, Masson’s allegations were known to Knopf’s president. CR 101 at exhibit 41. Like The New Yorker, Knopf had a means for resolving the dispute: It could have asked Malcolm to document the disputed quotes, particularly by reference to the tapes. If, on the basis of such an examination, Knopf had concluded, wrongly perhaps, that Malcolm’s quotes were accurate, I would hold it harmless. See Hotchner, 551 F.2d at 913-14 (discussed pp. 1554-56 supra); Velle Transcendental Research Ass’n, Inc. v. Sanders, 518 F.Supp. 512, 519 (C.D.Cal.1981) (publisher has no subjective awareness of falsity or reason to suspect that material is false where there had been no prior complaint about author, author was believed to be reliable and defendant relied on reputation of previous publisher). But failure to investigate the matter at all could well amount to recklessness, particularly where a book publisher (unlike a magazine) is not operating under a tight publication deadline. I can see no justification for allowing a publisher to reprint an article accused of containing libelous material without bothering to investigate the matter, when a simple, foolproof method of investigation was available. A jury might easily conclude that Knopf’s cavalier treatment of Mas-son’s complaint amounted to a reckless disregard of the truth and, if it did, we would have no choice but to affirm.
Conclusion
Truth is a journalist’s stock in trade. To invoke the right to deliberately distort what someone else has said is to assert the right to lie in print. To have that assertion made by The New Yorker, widely acknowledged as the flagship publication when it comes to truth and accuracy, debases the journalistic profession as a whole. Whatever it might have taken to refute Mas-son’s allegations on the merits is not, in my view, worth the unsettling implications left by defeating him on these grounds. Mas-son has lost his case, but the defendants, and the profession to which they belong, have lost far more.
. This is not hyperbole. The majority articulates its premise explicitly: "For the purpose of this appeal, we assume the quotations were deliberately altered.” Majority op. at -.
. A somewhat dated journalistic manual makes the point clearly:
The direct quotation of a man’s remark or his exact statement is always more effective than a summary or an indirect quotation. Editorial writers use quotation marks frequently to increase the force of their statements.
G.M. Hyde, A Course in Journalistic Writing 240 (1922).
. John L. Hulteng, a veteran reporter and former Dean of the School of Journalism at the University of Oregon, makes this point clearly:
The impression created by a quotation can be as important as the literal accuracy of that quotation, and thus placement and context become elements of reality so far as the perception of the quote may be concerned. So when a reporter — or the writer of a book, for that matter — undertakes to "rejigger" someone else’s ideas or observations he lies under a strong ethical obligation to be sure that he has not tampered with the essential reality of the material.
Editing copy is just as consequential an act of journalistic gatekeeping as reportorial selection of detail or choice of quote fragments.
J.L. Hulteng, The Messenger's Motives: Ethical Problems of the News Media 74 (1976).
.The same is true of the final statement the majority relies on, namely “[I] could single-handedly bring down the business of [Freudian psychology].” Majority op. at 1542. Masson was plainly puffing the significance of his discoveries, not claiming to be the intellectual Atlas of the profession.
. American Gigolo, a movie about a male prostitute, exemplifies the pejorative connotation the term gigolo has gained in our society.
. In a curious about-face, the majority concedes that gigolo might be subject to a less wholesome interpretation, but justifies its use by reference to others of Masson’s comments that the majority construes as "sexual metaphors." Majority *1552op. at 1540 n. 4. The cited passages provide scant support for the majority’s conclusion; just as it adopted an idiosyncratically puritanical definition of gigolo, the majority must strain to attribute a salacious meaning to Masson’s words. Thus, Masson’s reference to “[s]uck stories’’ and his discussion of who, among young analysts, "can suck the most," has only the most remote connection with sex. As I understand common parlance, sucking up is an expression similar to kissing up or buttering up, meaning to flatter or curry favor with someone. See New Dictionary of American Slang 422 (R.L. Chapman ed. 1986). I cannot agree with the majority that Masson's reference to “[s]uck stories” would inevitably lead a jury to conclude that “Masson conceptualized his relationship with Eissler and Freud ... as an intimate, mysterious, and perhaps surreptitious diversion— not unlike that of a 'gigolo.’ ” Majority op. at 1540 n. 4.
The dramatically different interpretations the majority and I give to this passage illustrate the volatile nature of the test the majority adopts. Under the majority’s rationale, Malcolm would have been justified in quoting Masson as saying "I often had oral sex with Eissler,” that, after all, being a rational interpretation of the expression suck up as the majority understands it.
In any event, the majority’s detour misses the point entirely. Masson is not complaining that he was painted as an actual gigolo; he complains about being called an intellectual gigolo, i.e. someone who would sell out intellectually to advance his career. Accepting at face value the majority’s view that Masson viewed his relationship with Eissler and Freud as "intimate, mysterious, and perhaps surreptitious,” how does that even slightly support the proposition that Mas-son thought himself an intellectual prostitute?
. The majority pulls yet another arrow from its quiver, suggesting that Masson did not carry his burden of proving that he never called himself an intellectual gigolo because his "only proof that he never said such a thing is his simple, albeit vehement, denial.” Majority op. at 1540 n. 4. "This showing,” the majority concludes, "is simply insufficient to pass muster under the applicable standard of proof” Id.
My distinguished colleagues err twice. In the first place, they do not explain, and provide no citation for, the proposition that a party’s sworn statement as to what was said during a two-party conversation is insufficient to create a triable issue of fact as to the contents of that conversation. Under normal circumstances, after all, there is no proof other than the parties’ own conflicting allegations. The majority thus seems to create a new rule of libel law: In a swearing contest between reporter and subject, the reporter always wins.
Equally troublesome is the majority’s assertion that Masson has advanced nothing but his own word to contradict Malcolm’s assertion that he called himself an intellectual gigolo. In fact, Masson has advanced much more than that:
(1) While Malcom tape-recorded most of what Masson said, she now claims that some of Masson’s most damaging statements — including his use of the term intellectual gigolo — were made during a conversation that was not recorded. Masson claims that he never made such a statement. The jury might infer from the absence of a tape recording that Malcolm fabricated the remark.
(2) Malcolm represented to her editor, and later in a letter to the New York Times, that every quote from Masson was on tape. See p. 1567 infra. The jury might view this now repudiated assertion as an oversight, or it might conclude that Malcolm was telling the truth then and that she fabricated her more recent claim that some conversations were not taped.
(3) Malcolm claims she made handwritten notes of the untaped conversation, but those notes have been destroyed; all we have is Malcolm’s typewritten transcription of the notes. The jury could conclude that (a) Malcolm fabricated a transcription of a nonexistent conversation; (b) there was a conversation but Malcolm failed to take contemporaneous notes and the transcription reflects her faulty recollection of what was said; or (c) Malcolm took notes but recklessly or deliberately altered them during the transcription. The permutations are many and none are inherently implausible.
(4) In her story, Malcolm describes in minute and lively detail the conversation during which Masson referred to himself as an intellectual gigolo. According to the story, the statement was made while she and Masson were having lunch at Chez Panisse in Berkeley. Malcolm now admits that the statement was made at a different time and place, while Masson was visiting her in New York. The jury might believe Malcolm when she explains that Chez Panisse was merely a literary backdrop, but it might also conclude that having fabricated one aspect of the conversation she would be capable of doing so twice.
(5) There is direct evidence that Malcolm doctored other quotes to make them more bombas*1553tic. See pp. 1566-67 infra. The jury might infer that Malcolm was not above inventing quotations in order to get her point across.
Even if Masson’s statement were not enough to create an issue of fact as to what he said to Malcolm, surely these additional circumstances are sufficient to entitle Masson to a jury trial as to whether or not he called himself an intellectual gigolo.
. Masson described his promiscuity as neurotic behavior for which he sought treatment. Transcript of the Masson/Malcolm Tapes, vol. 1, part 1, at M243-45.
. The majority’s analysis of the phrase "Eissler would have admitted I was right” is particularly instructive. Majority op. at 1544-45, The majority quotes a lengthy passage where Mas-son says that Eissler "agrees with me, of course;’’ the majority then notes that the reference for Masson’s statement is ambiguous: "It is difficult to discern” what Eissler was agreeing with Masson about. The court nevertheless approves Malcolm’s decision to attribute to Mas-son the statement "Eissler would have admitted I was right,” because the quoted passage can be rationally interpreted as saying so. What if Masson was not saying so, a possibility the majority seems to admit is equally plausible? In that event, Masson is left with claiming something he in fact never said.
I have no quarrel with the proposition that if Masson said something ambiguous, Malcolm was entitled to select the interpretation she preferred and attribute it to Masson in her own words. But surely there is no justification for doctoring Masson's statement to remove the ambiguity and then pretending that Masson actually uttered it. The gist of the majority’s analysis is that even if the author is wrong in guessing the speaker’s meaning, her choice will be respected; the speaker’s protestations that he in fact said the opposite, and that, if his statement had been preserved, some of the readers would have understood him, counts for nothing. In the marketplace of ideas, this gives the author an unjustified monopoly.
. Whatever one may think about the merits of this case, there is no doubt that Janet Malcolm is an exceptionally talented writer. See, e.g., Malcolm, Books: Pink Roses, The New Yorker, June 26, 1989, at 89; Malcolm, Reflections: The Journalist and the Murderer, The New Yorker, Mar. 13, 1989, at 38 (part 1), Mar. 20, 1989, at 49 (part 2).
. As reported by Castillo-Puche, Hemingway’s actual words were: “[Hotchner is] dirty and a terrible ass-Iicker. There's something phony about him. I wouldn't sleep in the same room with him.” 551 F.2d at 914.
. There is, of course, a fundamental difference between altering a quotation slightly, while remaining faithful to "the central meaning, the spirit, of a speaker's words,” and changing the words to conform to the writer's reasonable interpretation of what the speaker said. Under the central meaning standard, where the words uttered are ambiguous, they may not be altered to remove the ambiguity because that would change the spirit of what the speaker said; under the reasonable interpretation standard adopted by the majority, the author is given precisely that privilege. See majority op. at 1539-43, 1545-47.
. Tom Goldstein, dean of the Graduate School of Journalism, University of California at Berkeley, describes the New Journalism as follows:
In an advertisement, Harper's Magazine tried defining New Journalism metaphorically as "somewhere west of journalism and this side of history," the "place where reporting becomes literature.” In this uncharted territory, writers embellished quotes, burrowed into characters' interior thoughts, created scenes that may have happened but did not, and made up characters who were collages of real people.
T. Goldstein, The News at Any Cost: How Journalists Compromise Their Ethics to Shape the News 211 (1985).
.In 1980 writer John Hersey launched a ferocious attack on the New Journalism. Hersey’s premise was simple:
... I will assert that there is one sacred rule of journalism. The writer must not invent. The legend on the license must read: NONE OF THIS WAS MADE UP. The ethics of journalism, if we can be allowed such a boon, must be based on the simple truth that every journalist knows the difference between the distortion that comes from subtracting observed data and the distortion that comes from adding invented data.
*1560Hersey, The Legend on the License, The Yale Rev., Autumn 1980, at 1, 2 (emphasis original).
.Professor Olen notes two notorious examples:
In 1981, Washington Post reporter Janet Cooke was forced to return a Pulitzer Prize after she admitted to her editors that "little Jimmy,” an eight-year-old drug addict who was the focus of her prize-winning article, did not exist. He was, she said, a composite. The same year, the New York Daily News fired Michael Daly upon learning that a soldier appearing in a column Daly had written about Northern Ireland was a composite.
J. Olen at 97.
. The Wall Street Journal quotes Shawn as saying: “ 'I’ve worked with Mr. Reid for many, many years. I trust him completely, and he's not trying to deceive anybody, including me.... He’s a man of utter integrity, and that’s all I have to know.’ ’’ Wall St. J., June 18, 1984, at 1, col. 4.
. Shawn seems to recognize this distinction. While declaring that “the New Yorker ‘ideal is a verbatim quote,’ ” he emphasized that " ‘the most important thing is not to violate the truth ... of what somebody has said.' ” Wall St. J., June 18. 1984. at 1. col. 4.
. It would, in any event, be naive to take journalists entirely at their word as to what is, and is not, considered ethical in a profession not completely free from breast-beating and finger-pointing. See Karlen, Naked City, Spy, June 1989, at 32.
. Authorities in the field of journalism are fairly uniform in suggesting that if authors or publishers have a policy of altering quotes or other facts, they disclose that policy to the reading public. See, e.g., T. Goldstein, The News at Any Cost: How Journalists Compromise Their Ethics to Shape the News 203, 206 (1985). Professor Olen gives a few examples of how this might be accomplished:
Readers should know that reconstruction and cleaning up are going on. If they don’t, they are being misled, however benignly. Newspapers and magazines have a variety of ways of telling their readers. A column on the op-ed page under a title like "Why People in Newspapers Talk So Much Better than You Do" is one. A frank admission of quotation policy in the ombudsman column of a newspaper or editor's page of a magazine is another.
J. Olen at 101.
An elegant and unobtrusive example of such disclosure is provided by Dr. Nathaniel Branden in an "Author’s Note” to his recently published memoir:
In instances where I reproduce conversations that took place many years ago, I am not suggesting that all of the words reported are verbatim, but I am confident they are faithful to the essence of what was said and to the spirit and mood of the occasion. This conviction has been reinforced by those, acknowledged below, who knew one or more of the people about whom I write and who affirm that my characterizations match their own memories of the individual’s attitudes, beliefs, behavior, and spoken style.
In the course of this book I recreate a great many conversations with Ayn Rand. Prior to our break, Ms. Rand said publicly and on more than one occasion that I knew her thoughts more profoundly and specifically than any other human being and that I was qualified to speak for her on virtually any aspect of her ideas or convictions.
N. Branden, Judgment Day: My Years With Ayn Rand ix (1989).
An explicit statement may not be required if it is clear from context “that the use of quotes is for dramatic effect and not to indicate an exact rendering." 1. Olen at 98. Professor Olen cites as an example a book where the author gives verbatim quotes of conversations which he clearly did not witness. Id.
. An immaterial change might have been the removal of "still a, a, a man," obviously an unintended hesitation, and the substitution of "still a man.”
. Liberty Lobby rejected the incremental harm doctrine both as a matter of District of Columbia law and as a matter of federal constitutional law. 746 F.2d at 1569. To the extent the court today accepts the doctrine on constitutional grounds, it is creating a square conflict with the District of Columbia Circuit.
. The majority also finds that "the ‘intellectual gigolo’ quotation is not defamatory" because “a fair reading of the quotation shows author Malcolm is portraying Masson as reporting Kurt Eissler's and Anna Freud's opinions about him.” Majority op. at 1541. I am baffled by this reasoning; surely the intellectual gigolo label is going to harm Jeffrey Masson’s career whether he uttered it about himself or whether it reflected Eissler’s and Freud’s assessment of him. For Eissler, Masson’s employer, to call him an intellectual gigolo is, I should think, at least as bad as for Masson to so call himself.
Rightly troubled about giving a journalist the power to force a subject to call himself an intellectual gigolo, the majority resorts to a number of strategies to avoid the term’s impact. See id. at 1541-42. As demonstrated here and supra at 1550-52, none of these work; the majority must accept the full consequences of its holding.
. Malcolm suggests an alternative source for the offending quotations, namely her notes of non-taped conversations where Masson allegedly made those statements more or less verbatim. But the jury might well disbelieve Malcolm’s account of these alleged conversations, conversations that Masson denies ever took place. See n. 7 supra. Because we are reviewing a grant of summary judgment against Mas-son, we must indulge these inferences in his favor.
. Masson claims that Malcolm is in fact an employee. Brief for Appellant at 46. If at trial Malcolm were found to be an employee of The New Yorker acting within the scope of her employment, the magazine could be held liable under the doctrine of respondeat superior. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253, 95 S.Ct. 465, 470, 42 L.Ed.2d 419 (1974).
. Interestingly, "[a]t The New Yorker, quotations are generally not subjected to the magazine’s rigorous fact-checking requirements. The rationale for this, according to Martin Baron, the magazine’s chief fact-checker, is that a source cannot be expected to remember weeks or months later his precise words. Further, said Baron, a source might subsequently deny having said something because the statement places him in an unflattering light.” T. Gold-stein, The News at Any Cost: How Journalists Compromise Their Ethics to Shape the News 205 (1985) (relying on an interview with Martin Baron, January 25, 1985). These reasons seem entirely inapposite where the editors are aware that the conversations are on tape.
The New Yorker is not unique in refusing to clear quotations with sources. Some authorities believe that this is a mistake. Dean Goldstein, for example, suggests that "[a] lot of the mistrust between journalists and those whom they interview could be reduced if journalists were more willing to clear quotations or articles with the subjects of interviews before publication.” Id. at 204. Professor Olen recognizes the risk that the source may wish to disown unflattering quotes, but nevertheless commends the practice: "The purpose of quoting people is rarely to get down which [words] they picked [to express an idea] on a particular occasion, but to give readers a feel for their personalities and how they express themselves. If the speakers are satisfied with the quotes, the journalist has fulfilled that purpose." J. Olen, Ethics in Journalism 100 (1988).
.The record corroborates portions of Masson’s account of this incident. Nancy Franklin is, in fact, a fact-checker for The New Yorker and, on deposition, admitted that she had talked to Mas-son about the Malcolm piece. CR 96, exhibit F at 64. A number of the corrections Masson claims to have suggested to Franklin in fact found their way into galleys but did not make it into the published version of the article. Compare CR 100 at exhibit 3 with Malcolm II at 106; CR 100 at exhibit 4 with Malcolm I at 59.
. This statement seems somewhat at odds with The New Yorker’s policy regarding the checking of quotations. See n. 25 supra.