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.
One of the striking instances of the necessity for this mediation—showing how the literally true may actually be a kind of falsification of reality—is offered by a transcript of tape-recorded speech. When we talk with somebody, we are not aware of the strangeness of the language we are speaking. Our ear takes it in as English, and only if we see it transcribed verbatim do we realize that it is a kind of foreign tongue. What the tape recorder has revealed about human speech—that Molière’s M. Jourdain was mistaken: we do not, after all, speak in prose—is something like what the nineteenth-century photographer Eadweard Muybridge’s motion studies revealed about animal locomotion. Muybridge’s fast camera caught and froze positions never before seen, and demonstrated that artists throughout art history had been “wrong” in their renderings of horses (among other animals) in motion. Contemporary artists, at first upset by Muybridge’s discoveries, soon regained their equanimity, and continued to render what the eye, rather than the camera, sees. Similarly, novelists of our tape-recorder, era have continued to write dialogue in English rather than in tape-recorderese, and most journalists who work with a tape recorder use the transcript of an extended interview merely as an aid to memory—as a sort of second chance at note-taking—rather than as a text for quotation. The transcript is not a finished version, but a kind of rough draft of expression. As everyone who has studied transcripts of tape-recorded speech knows, we all seem to be extremely reluctant to come right out and say what we mean—thus the bizarre syntax, the hesitations, the circumlocutions, the repetitions, the contradictions, the lacunae in almost every non-sentence we speak.
The tape recorder has opened up a sort of underwater world of linguistic phenomena whose Cousteaus are as yet unknown to the general public. (A fascinating early contribution to this field of research is a paper forbiddingly entitled “Countertransference Examples of the Syntactic Expression of Warded-Off Contents” by Hartwig Dahl, Virginia Teller, Donald Moss, and Manuel Truhillo [Psychoanalytic Quarterly, 1978], which analyzes the verbatim speech of a psychoanalyst during a session and shows its strange syntax to be a form of covert bullying of the patient.) But this world is not the world of journalistic discourse. When a journalist undertakes to quote a subject he has interviewed on tape, he owes it to the subject, no less than to the reader, to translate his speech into prose. Only the most uncharitable (or inept) journalist will hold a subject to his literal utterances and fail to perform the sort of editing and rewriting that, in life, our ear automatically and instantaneously performs.
For example, when I asked Dr. Michael Stone, a psychiatrist who testified for the defense in the MacDonald-McGinniss lawsuit, if he thought there was any possibility that MacDonald was innocent, he said (on tape):
No. In fact I had hoped to be able to say—since the judge kind of cheated me out of my opportunity to be redirected—Dan [Daniel Kornstein, the defense laywer] said I had time to be redirected—then Bostwick cleverly ate up all the time with a bunch of silly questions so that—the judge just let him go on and on—and then finally there wasn’t really time because I had to catch a plane at a certain hour. However, the material I gave to Kornfeld, was that having looked at all this and having slept on this material the night after my first appearance at trial, I had a kind of insight, if you will, that the four intruders represented, psychologically speaking, the only truthful thing that MacDonald had told—that there were really four intruders—but, of course, they weren’t exactly as he depicted them—but there were four people who intruded upon the hedonistic—and—life style and whoring around of Jeff MacDonald—and four people who, you know, intruded into his disinclination to be a responsible husband and father, namely Colette, Kristy, Kimberly, and the unborn son.
In my text I rendered this as:
No. In fact—and this, too, was something I wasn’t able to say in court, since Bostwick cleverly ate up all the time with a bunch of silly questions and I had to catch a plane—the four intruders who MacDonald claimed were responsible for the murders represented the only truth, psychologically speaking, that he told. There really were four people who intruded on the hedonistic life style and whoring around of Jeff MacDonald: the four people who intruded on his disinclination to be a responsible husband and father; namely, Colette, Kristen, Kimberly, and the unborn son.
Before the invention of the tape recorder, extended quotations were not verbatim—what Boswell quotes Dr. Johnson as saying was not precisely what Johnson said; we will never know what that was—and many journalists continue to work without benefit of this double-edged technological aid, doing their work of editing or paraphrasing on the spot, as they scribble in their notebooks. In this litigious time, it has proved useful for journalists to have an electronic record of what a subject said. But this extraliterary reason for using a tape recorder, as well as the more conventional one of capturing the flavor of a subject’s speech, may prove to be insufficiently beneficial—to both text and journalist—to warrant the continued use of the tape recorder in journalistic interviews. Texts containing dialogue and monologue derived from a tape—however well-edited the transcript may be—tend to retain some trace of their origin (almost a kind of metallic flavor) and lack the atmosphere of truthfulness present in work where it is the writer’s own ear that has caught the drift of the subject’s thought. And lawsuits in which transcripts of tape-recorded interviews are used to settle the question of what a subject did or didn’t say can degenerate (as, in my opinion, Masson v. Malcolm degenerated) into farcical squabbles about the degree to which a journalist may function as a writer rather than as a stenographer.
The quotations in The Journalist and the Murderer—and in my other journalistic writings—are not, for the reasons given, identical to their speech counterparts. Neither, however, are any of them of the “probable” variety described by the writer Joseph Wambaugh at the McGinniss-MacDonald trial. Although the Wambaugh technique is frequently used in historical novels—“Mon dieu,” Richelieu said, “when the King hears this, he will freak out!”—as well as in Wambaugh’s own “true crime” novels, it is out of the question for works that represent themselves as journalism. When we read a quotation in a work of journalism, we assume it to be a rendering of what the speaker actually—not probably—said. The idea of a reporter inventing rather than reporting speech is a repugnant, even sinister, one. Because so much of our knowledge of the world derives from what we read in the press, we naturally become nervous whenever the question of misquotation is raised. Fidelity to the subject’s thought and to his characteristic way of expressing himself is the sine qua non of journalistic quotation—one under which all stylistic considerations are subsumed. Fortunately for reader and subject alike, the relatively minor task of translating tape-recorderese into English and the major responsibility of trustworthy quotation are in no way inimical; in fact, as I have proposed (and over and over again have discovered for myself), they are fundamentally and decisively complementary.
I have been writing long pieces of reportage for a little over a decade. Almost from the start, I was struck by the unhealthiness of the journalist-subject relationship, and every piece I wrote only deepened my consciousness of the canker that lies at the heart of the rose of journalism.
When the lawyer Daniel Kornstein and his client the writer Joe McGinniss approached me with a larger-than-life example of the journalist-subject problem—a lawsuit in which a man serving a prison sentence for murder sues the writer who uneasily deceived him for four years—it dovetailed with the thinking on the subject I had been doing for many years and fired my imagination with its narrative possibilities. The notion that my account of this case is a thinly veiled account of my own experience of being sued by a subject not only is wrong but betrays a curious naiveté about the psychology of journalists. The dominant and most deep-dyed trait of the journalist is his timorousness. Where the novelist fearlessly plunges into the water of self-exposure, the journalist stands trembling on the shore in his beach robe. Not for him the strenuous athleticism—which is the novelist’s daily task—of laying out his deepest griefs and shames before the world. The journalist confines himself to the clean, gentlemanly work of exposing the griefs and shames of others. Precisely because MacDonald’s lawsuit had no elements in common with Masson’s did I feel emboldened to write about it (and, incidentally, was I, a defendant, able to position myself so as to view a plaintiff’s case with sympathy). MacDonald v. McGinniss was unprecedented in being concerned with a writer’s personal conduct toward his subject—no previous lawsuit had opened this messy drawer; Masson v. Malcolm was confined to a published text.
That some readers were nevertheless able to think of The Journalist and the Murderer as being veiled autobiography (and thus found my text incomplete, even devious, because it did not mention the Masson lawsuit) derives, I have come to think, from a misconception about the identity of the character called “I” in a work of journalism. This character is unlike all the journalist’s other characters in that he forms the exception to the rule that nothing may be invented: the “I” character in journalism is almost pure invention. Unlike the “I” of autobiography, who is meant to be seen as a representation of the writer, the “I” of journalism is connected to the writer only in a tenuous way—the way, say, that Superman is connected to Clark Kent. The journalistic “I” is an overreliable narrator, a functionary to whom crucial tasks of narration and argument and tone have been entrusted, an ad hoc creation, like the chorus of Greek tragedy. He is an emblematic figure, an embodiment of the idea of the dispassionate observer of life. Nevertheless, readers who easily accept the idea that the narrator in a work of fiction is not the same person as the author of the book will stubbornly resist the idea of the invented “I” of journalism; and even among journalists, there are those who have trouble sorting themselves out from the Supermen of their texts.
There was a moment in my conversation with the professor-journalist Jeffrey Elliot when this confusion was brought into sharp relief. Elliot told me of his outrage over an incident in Fatal Vision—one that also appeared in the film version of the book—in which MacDonald and the members of his defense team in Raleigh entertained themselves during a birthday party for the criminal lawyer Bernie Segal by throwing darts at an enlarged photograph of Brian Murtagh, an abrasive government prosecutor. McGinniss wrote:
One by one, each member of the defense team took a turn throwing darts at the picture. Jeffrey MacDonald scored a direct hit. He cheered for himself as his attorneys and their assistants clapped and laughed. In high spirits, he seemed oblivious to the possibility that, under the circumstances, it might not have been appropriate for him to be propelling a sharp pointed object toward even the photographic representation of a human being.
In the film version, MacDonald is shown throwing darts as Joe McGinniss looks on grimly. At McGinniss’s first deposition, the opposing lawyer Gary Bostwick asked him if he himself had thrown a dart at the party, and McGinniss replied, “I don’t recall.” At the MacDonald-McGinniss trial, Segal testified that he remembered McGinniss had thrown a dart. Elliot said indignantly to me, “How can you write a book and consult on a film where you portray yourself as standing in the corner at a birthday party watching MacDonald throw darts at the face of the prosecutor—standing there looking as if you found this repulsive—when in actuality you weren’t watching aghast but were throwing darts like the rest?” He went on, “It’s dishonest. You use that scene to make MacDonald look wicked and evil, and you’re this pure character just watching, horrified. But if you participated in the dart-throwing, then don’t write the scene. Because it’s going to come out that you participated.”
“No, it isn’t,” (the real life) I said to Elliot. “Until the MacDonald lawsuit, no one ever thought of challenging a journalist’s personal conduct the way Bostwick challenged McGinniss’s.”
“I’m sure McGinniss didn’t think his would be either.”
“Well, it’s outrageous.”
Bostwick’s delvings into the discrepancy between the character “I” of Fatal Vision and the man who wrote the book are what make the lawsuit unique and give it its subversive character. Kornstein was right to characterize it as a threat to journalism. If the journalist is going to have to start proleptically imitating the behavior of the “pure character” he will become in his text, his hands will be tied. The oxymoronic term “participant observer” was coined to describe the fieldwork of anthropologists and sociologists; and it also describes the fieldwork of journalists. Because McGinniss participated more fully and intensely in the culture of his subject than most journalists have occasion to do—how many of us live with a subject for six weeks, accompany him daily to a murder trial, form a business partnership with him, and write to him in prison for three years?—he was more vulnerable than most of us would be to the charge of duplicity on which Bostwick poised his case.
But what McGinniss did egregiously, other journalists do more subtly and quietly. Colleagues have said to me, “I would never do what McGinniss did. I’m not that kind of writer. It would pain me to cause a subject distress”—as if what we write is the issue. The moral ambiguity of journalism lies not in its texts but in the relationships out of which they arise—relationships that are invariably and inescapably lopsided. The “good” characters in a piece of journalism are no less a product of the writer’s unholy power over another person than are the “bad” ones. During my friendly dealings with Gary Bostwick, I always knew I had the option of writing something about him that would cause him distress, and he knew it, too, which gave our “false friendship” a bracing kind of self-consciousness rare between writers and subjects, but which in no way altered the authoritarian structure of the relationship: he was completely at my mercy. I held all the cards. Yes, he had consented to be written about, and yes, he hoped to gain something from his encounter with me. The fact that the subject may be trying to manipulate the journalist—and none but the most otherworldly of subjects is above at least some manipulativeness—does not offset the journalist’s own sins against the libertarian spirit. “Two wrongs don’t make a right,” as the folksy Bostwick was fond of saying during the trial, quoting his mother. As it happened, Bostwick’s personal agenda and my narratival one coincided; if they hadn’t, I probably would have put what I believed to be the reader’s interests ahead of Bostwick’s susceptibilities—though not necessarily: in my time, I, too, have committed the journalistic solecism of putting a person’s feelings above a text’s necessities.
There is an infinite variety of ways in which journalists struggle with the moral impasse that is the subject of The Journalist and the Murderer. The wisest know that the best they can do—and most practitioners easily avoid the crude and gratuitous two-facedness of the MacDonald-McGinniss case—is still not good enough. The not so wise, in their accustomed manner, choose to believe there is no problem and that they have solved it.
March 1, 1990
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. ↩
March 13, 1989, and March 20, 1989. ↩
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). ↩