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The Morality of Journalism

The following is an essay written as an afterword to The Journalist and the Murderer, to be published later this month by Knopf, and appears here in slightly different form. The book revolves around a lawsuit brought by Jeffrey MacDonald, who had been convicted of the murder of his wife and children, against Joe McGinniss, the author of Fatal Vision, a chronicle of the crime.

Although writers and publishers like to grumble about the proliferation of libel lawsuits in this country, few would seriously propose that anything be done to reverse the trend. The Ayatollah’s death sentence on Salman Rushdie brings into relief the primitive feeling that lies behind every libel suit, and makes the writer only too grateful for the mechanism the law provides for transforming the displeased subject’s impulse to kill him into the more civilized aim of extracting large sums of money from him. Although the money is rarely collected—most libel suits end in defeat for the plaintiff or in a modest settlement—the lawsuit itself functions as a powerful therapeutic agent, ridding the subject of his feelings of humiliating powerlessness and restoring to him his cheer and amour propre.

From the lawyer who takes him into his care he immediately receives the relief that a sympathetic hearing of one’s grievances affords. Conventional psychotherapy would soon veer off into an unpleasurable examination of the holes in one’s story, but the law cure never ceases to be gratifying; in fact, what the lawyer says and writes on his client’s behalf is gratifying beyond the latter’s wildest expectations. The rhetoric of advocacy law is the rhetoric of the latenight vengeful brooding which in life rarely survives the skeptical light of morning but in a lawsuit becomes inscribed, as if in stone, in the bellicose documents that accrue while the lawsuit takes its course, and proclaims with every sentence “I am right! I am right! I am right!”

On the other side, meanwhile, the same orgy of self-justification is taking place. The libel defendant, after an initial anxious moment (we all feel guilty of something, and being sued stirs the feeling up), comes to see, through the ministrations of his lawyer-therapist, that he is completely in the right and has nothing to fear. Of pleasurable reading experiences there may be none greater than that afforded by a legal document written on one’s behalf. A lawyer will argue for you as you could never argue for yourself, and, with his lawyer’s rhetoric, give you a feeling of certitude that you could never obtain for yourself from the language of everyday discourse. People who have never sued anyone or been sued have missed a narcissistic pleasure that is not quite like any other.

A few years ago, I had the opportunity to experience this pleasure when I was sued for libel by the main character of my book In the Freud Archives, Jeffrey Masson. I remember well the pile of documents from the lawsuit that collected in my office, to which I would be drawn as if to a forbidden treat, and which I would peruse like a child reading a favorite fairy story over and over again. Of course, my enraptured reading involved only half the documents in the pile—those that had been written by my lawyers. The other half—written by Masson’s lawyers—were of no interest; I scanned each item as it arrived, always quickly perceived its weakness and pointlessness, and never looked at it again. On his side, I am sure that Masson did the same thing.

In life, it is hard enough to see another person’s view of things; in a lawsuit, it is impossible. The fatal attraction of a lawsuit—as Dickens showed us in Bleak House, with the case of Jarndyce v. Jarndyce—is the infinite scope it offers for escape from the real world of ambiguity, obscurity, doubt, disappointment, compromise, and accommodation. The world of the lawsuit is the world of the Platonic ideal, where all is clear, etched, one thing or the other. It is a world—as Dickens showed with his allegory of obsession—that we enter at our peril, since it is also the world of madness. A few months into the Masson lawsuit, I took Dickens’s warning and drew back from the brink, returning to it only once again: in the summer of 1987, when a federal judge summarily dismissed Masson’s suit, I’m afraid I found myself reading and rereading the judge’s twenty-seven-page order with the old solipsistic rapture. But my feeling of low gloating was soon replaced by a certain weary sympathy for the man whose efforts had come to nothing.1

Being sued by a person who inhabits the pages of a book you have written is not, after all, the same as being sued by someone who exists only in life. You know your adversary more intimately than you know most merely real people—not only because you have had occasion to study him more closely than one studies the people one does not write about, but because you have put a great deal of yourself into him. “Madame Bovary, c’est moi,” Flaubert said of his famous character. The characters of nonfiction, no less than those of fiction, derive from the writer’s most idiosyncratic desires and deepest anxieties; they are what the writer wishes he was and worries that he is. Masson, c’est moi.

In his biography of Gogol, Vladimir Nabokov, dismissively citing a theory about the origins of The Inspector General, observes:

It is strange, the morbid inclination we have to derive satisfaction from the fact (usually false and always irrelevant) that a work of art is traceable to a “true story.” Is it because we begin to respect ourselves more when we learn that the writer, just like ourselves, was not clever enough to make up a story himself?

When the chronicle of journalistic betrayal which forms the contents of The Journalist and the Murderer was first published in The New Yorker,2 certain members of the journalistic community contended that I had not “made up” my story—that is, had not acted in good faith in presenting it as a new story—but had simply served up a disguised version of the Masson-Malcolm lawsuit. My suggestion that all journalists feel, or should feel, some compunction about the exploitive character of the journalist-subject relationship was held up as a covert confession of the wrong I had done Jeffrey Masson—who was promptly harnessed into the project of showing my text to be the product of a guilty conscience. The feeling of sympathy for Masson that had been aroused in me by the summary judgment was reawakened by the spectacle of him giving interviews to reporters whose sole interest in him was his usefulness as an agent for the development of their “story behind the story”; once they had used him, they dumped him. The vivid, impudent, complex man who had appeared in my book was sadly diminished in his new literary surroundings. What had they done to complicated, unruly Masson to make him seem so vapid?

However, he served his purpose, and his lawsuit’s charge that I had libeled him through misquotation began to circulate in newspapers and magazines throughout the country—not as an accusation, but as an established fact. It is an unnerving experience to pick up the venerable newspaper you have read all your adult life, whose veracity you have never had reason to doubt, and read something about yourself that you know to be untrue. The Times published a retraction in due course, but the harm was done. As Tom Wicker recently wrote in his “In the Nation” column,

It’s a truism that denials never quite catch up with charges. Honest journalists who may have mistakenly printed false information know that the most prominent retraction never quite undoes the damage done by the original publication.

The occasion for Wicker’s remark was the death of Owen Lattimore, who had been accused of being a Communist spy by Senator Joseph McCarthy, and, after much travail, had succeeded in clearing himself of this and all similar charges. The crux of Wicker’s column was this paragraph:

After his obituary appeared…two well-informed people not given to right-wing suspicions told me they were surprised to read that Mr. Lattimore, in fact, had been innocent of the charges. They knew McCarthy exaggerated, but for nearly forty years, as one put it, they had been under the impression that Mr. Lattimore was at least “tainted.”

Because of the Times‘s story, in some well-informed people’s minds, I, too, will no doubt always be tainted—a kind of fallen woman of journalism.3

What is at stake for the reader in the issue of whether or not a writer has violated the rules of his genre? Contemporary fiction, after all, is full of such trespasses. If E.L. Doctorow can experiment with the form of the novel by mixing fictitious characters with historical personages, and if Philip Roth can go so far as to report the death of a character in the first chapter of The Counterlife and then, in the second, send the man to Israel to recuperate from the openheart operation that killed him on page seventeen (“So I lied”), why can’t writers of nonfiction fool around in the same way, take similar liberties, conduct their own modernist experiments? Why should the writer in one genre enjoy more privileges than the writer in the other?

The answer is: because the writer of fiction is entitled to more privileges. He is master of his own house and may do what he likes in it; he may even tear it down if he is so inclined (as Roth was inclined in The Counterlife). But the writer of nonfiction is only a renter, who must abide by the conditions of his lease, which stipulates that he leave the house—and its name is Actuality—as he found it. He may bring in his own furniture and arrange it as he likes (the so-called New Journalism is about the arrangement of furniture), and he may play his radio quietly. But he must not disturb the house’s fundamental structure or tamper with any of its architectural features. The writer of nonfiction is under contract to the reader to limit himself to events that actually occurred and to characters who have counterparts in real life, and he may not embellish the truth about these events or these characters.

I speak about the limitation on a nonfiction writer’s scope for invention as if it were a burden, when, in fact, it is what makes his work so much less arduous. Where the novelist has to start from scratch and endure the terrible labor of constructing a world, the nonfiction writer gets his world ready-made. Although it is a world by no means as coherent as the world of fiction, and is peopled by characters by no means as lifelike as the characters in fiction, the reader accepts it without complaint; he feels compensated for the inferiority of his reading experience by what he regards as the edifying character of the genre: a work about something that is true, about events that really occurred and people who actually lived or live, is valued simply for being that, and is read in a more lenient spirit than a work of imaginative literature, from which we expect a more intense experience. The reader extends a kind of credit to the writer of nonfiction that he doesn’t extend to the writer of fiction, and for this reason the writer of nonfiction has to be punctilious about delivering the goods for which the reader has prepaid with his forbearance. Of course, there is no such thing as a work of pure factuality, any more than there is one of pure fictitiousness. As every work of fiction draws on life, so every work of nonfiction draws on art. As the novelist must curb his imagination in order to keep his text grounded in the common experience of man (dreams exemplify the uncurbed imagination—thus their uninterestingness to everyone but their author), so the journalist must temper his literal-mindedness with the narrative devices of imaginative literature.

  1. 1

    Evidently not yet ready to terminate his law therapy, Masson appealed the summary judgment. In August 1989, it was upheld by the US Court of Appeals for the Ninth Circuit in a 2-1 decision. Masson promptly filed yet another appeal—this one for reconsideration of his case by a larger panel of the Appeals Court—which is pending as I write.

  2. 2

    March 13, 1989, and March 20, 1989.

  3. 3

    In an article headed “Ethics, Reporters, and the New Yorker,” in the March 21, 1989, issue of The New York Times, a reporter named Albert Scardino wrote that “testimony at the trial portrayed her as fabricating quotations and manufacturing dialogue,” and that “Miss Malcolm conceded the fabrications.” Of course, there had never been any such testimony, since there had never been any trial (the suit was dismissed before trial), and, of course, I conceded no fabrications (at the imaginary trial).

    Some of Scardino’s confusion—and that of journalists reporting the subsequent affirming decision of the Appeals Court—doubtless derived from the rather arcane nature of summary judgment, an expedient the law provides for defendants who wish to avoid the expense of a trial. In summary judgment, the defendant must demonstrate that the plaintiff could not possibly win his case at trial. To make this demonstration fit within the confines of Rule 56(c) of the Federal Rules of Civil Procedure—which stipulates that summary judgment may be granted only when “there is no genuine issue as to any material fact”—the defendant is often obliged to leave unchallenged dire accusations which, at trial, the plaintiff would have to back up with evidence.

    Thus, in the Masson-Malcolm suit, to comply with Rule 56(c), the defense did not challenge the plaintiff’s accusation that four pages of notes which I had submitted to the court as the source of certain quotations in my book were “fabrications.” Accordingly, the decisions of the lower court and the Appeals Court said, in effect, that even if Masson’s accusation regarding the notes were true, his case could not prevail in the face of the evidence of 1,065 undisputed pages of tape transcript. But the “even if” formula of the summary judgment was evidently not grasped by the daily press and was taken to mean “it is so.” I would like to say in the congenial shade of this footnote that I consider the accusation that I fabricated notes and invented quotations ludicrous beyond belief, that I utterly deny it, and that there is no evidence for it.

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