Friday, January 21, 2011

What Are the Risks of Misquoting an Interviewee?

"Quotation, n: The act of repeating erroneously the words of another." (Ambrose Bierce, The Devil's Dictionary)

Unless a writer tape records her interviews, has mastered shorthand, or conducts her interviews by email, the questions and answers she publishes will rarely be a word-for-word transcription of what the interviewee said.  A writer should, of course, do her level best to record the interviewee's actual words. However, unless an interview is unusually adversarial, the interviewee will seldom complain about minor disparities in wording as long as you have accurately reported the facts and captured the essence, tone, and spirit of what the interviewee had to say.

Interviews give rise to some interesting issues of journalistic ethics:  Should you correct an interviewee's, you know, verbal tics and grammatical mistakes?  Should you publish a verbatim acount of your interviewee's distinctive dialect or convert his words into standard English?  The Associated Press says "no":
We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote's meaning is too murky to be paraphrased accurately, it should not be used.
Journalists may worry about such things, but they are seldom, if ever, the stuff of lawsuits.

But beware of the man who claims that he has been misquoted in a way that makes him look bad -- unprofessional, bigoted, ignorant, malevolent, crooked, violent -- whereas an accurate quotation would have made him look like the upstanding citizen he believes himself to be.  And be aware that (inaccurately) putting words into your interviewee's mouth that diminish his reputation and expose him to "hatred, contempt, or aversion" can, in fact, be actionable.

As the Supreme Court explained in the the famous (to libel lawyers) case of Masson v. New Yorker Magazine:
A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.
Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.
Jeffrey Masson alleged that he had been the victim of the latter form of misattribution.  Masson is a noted psychoanalyst who was at one time the Project Director of the Sigmund Freud Archives. In 1982, Janet Malcolm interviewed him for a lengthy New Yorker profile, which was later expanded into a book, entitled In the Freud Archives.  One reviewer said that the book portrayed Masson "as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool."  Masson read it that way, too, and sued for defamation, primarily complaining that Malcolm invented a series of quotes that made him look unprofessional. Malcolm denied that she had done anything of the kind.  Here, The New York Times identifies the most famous phrases that Masson challenged:
In three of the five disputed quotations in the two-part, 45,500-word article, Ms. Malcolm wrote that Mr. Masson had said he hoped to turn Freud's home into "a place of sex, women, fun"; that two prominent psychiatrists considered him "an intellectual gigolo," and that he himself would one day be considered the "greatest analyst who ever lived."
Malcolm had tape recorded some of her interviews.  But she testified that she had taken handwritten notes of other conversations, which she believed that she had discarded after typing them up; it was during these unrecorded conversations that the challenged statements were made (according to Malcolm) or not made (according to Masson).

The case went all the way to the U.S. Supreme Court and back down again to trial. In all, there were five quotations at issue; a jury ultimately found that some of the quotes were substantially accurate, some were not, but none of the erroneous quotations was written with reckless disregard for the truth, the minimum level of fault that Masson, as a public figure, had to prove to establish liability.

So Masson lost.  (Here is the decision in the final appeal to the Ninth Circuit Court of Appeals.)  But the case nonetheless continues to stand for the proposition that an inaccurate quotation can give rise to a viable defamation claim.  Moreover, if Masson had been a private figure instead of a public figure, he presumably would not have had to show that Malcolm knowingly or recklessly misquoted him; mere negligent misquotation of a private figure (provided, again, that the misquotation induces an unsavory opinion of the misquotee) might be enough in some states to give rise to a viable claim.

So what can a writer do to avoid a Masson/Malcolm-style smackdown?

1.  As previously stated, do your utmost to get the quotations right.  The more inflammatory the quote, the more careful you should be.

2.  Consider tape recording interviews, especially if they are likely to be contentious.  But, remember, in many states, consent of both parties is required to tape a telephone conversation.  (The Reporter's Committee for Freedom of the Press has published a helpful state-by-state guide on the legality of taping telephone interviews.)  If consent to taping is required, it is a good idea to get the consent itself on tape.

3.  If you recall the gist of a statement, but are not confident about the wording, don't put the words inside quotation marks.  Report it for what it is:  your paraphrase of what was said.

4.  If you haven't taped an interview, and if you aren't certain that you have precisely captured the interviewee's words in your notes, consider inviting the interviewee to review the quotes before publication.  Many professional journalists are loathe to take this step, however, because interviewees will too often disavow making (or want to change) the tactless statements that they actually made. If the interviewer then publishes the quotation as she originally heard it, the litigious interviewee may claim that the interviewer was on notice that the quotation was false.

5.  Consider preserving your interview tapes and notes for a substantial period after the interview is published.  (In a later post, I will have some suggestions regarding how long writers should keep their contracts and source materials.)  A counter-argument can be made in favor of discarding notes; working journalists are rightly concerned that their notes could be subpoenaed, making them involuntary witnesses (a la Judith Miller) or eating up their time and their employers' money fighting the subpoenas.  However, this is seldom a concern for writers who are not covering hot news or doing investigative work.  In the end, there is no always-right answer to question: should I preserve or should I discard?  But, on balance, I would generally keep my notes.  (Janet Malcolm is evidently a preserver rather than a discarder; as reported in the Times article above, her two year-old granddaughter reportedly stumbled upon Malcolm's lost notebook many months after the Masson trial was over.)

6.  Reconstruction of quotations from long ago can be hazardous, too. Memoirists and autobiographers frequently recreate conversations that occurred years earlier.  But, if their memories are at all like mine, they could, at best, only hope to recall the gist of what was said.  Readers understand that the quotation marks around decades-old dialog are a literary convention, not the literal truth.  But that may not stop a quotee from claiming he had been Massonized if he believes that gist is inaccurate and disparages him.

7.  Take to heart the moral of this case against ABC: don't take quotations out of context.

8.  Consider whether an inflammatory quotation could be effective, even without naming the speaker:  e.g., "'Muslims aren't welcome in this neighborhood,' a local grocer said."

Ultimately, there is no call for paranoia.  Occasional inaccuracies in quotations are inevitable (see this long list of famous, but inaccurate, quotations -- some of them deliberate misquotations), but the vast, vast majority do not materially distort the essence of what the speaker said -- and therefore should not give rise to legal liability.


  1. I'm linking to this for a blog post - it's very helpful information for writers. I've recently been quoted as saying something that I in fact, did not. The blog also took other quotes and blew them out of perspective. Why? To get readers at the expense of someone else? The blogger corrected the so-called quote after I called him/her out, but it blows me away how some writers go for sensationalism rather than stating the facts and keeping perspective in their writing. Thanks!

  2. To "anonymous," who posted a comment and question regarding his/her dispute with a writer on a book project: Regrettably, I cannot provide advice on individual legal questions. I gather you may already be represented by counsel; if not, I suggest that you bring your question to an experienced legal practitioner in your jurisdiction.

  3. What should someone do if they were misquoted by someone in a published work?