The New Yorker libel trial that sent shudders through journalists with its tales of made-up quotations and rearranged conversations may have to be replayed because the jury couldn't decide on damages.
The federal jury found that five quotations attributed to psychoanalyst Jeffrey Masson in a 1983 profile in The New Yorker by writer Janet Malcolm were fabricated or distorted, and that Malcolm knew two of them were libelous.But U.S. District Judge Eugene Lynch dismissed the eight jurors Thursday after they declared themselves deadlocked over how much to award Masson, who was asking for $7.5 million.
It was unclear whether the whole case would have to be retried, or just the issue of damages. Participants in the case and outside legal experts couldn't say for certain.
Malcolm, who has written for The New Yorker since the 1960s, left the courtroom without comment. But her attorney warned reporters the finding of libel would have a chilling effect on their profession.
"Starting now," Gary Bostwick said, "some of you will be asked for your notes and your tapes, and people will be looking at you in a different way."
The case has been closely watched by journalists because of its role in shaping libel law and because of the largely unflattering light it cast on how they do their jobs.
"As long as journalists make a reasonable effort to be accurate - and if you don't know, you just don't put it in quotes - then you've got all the protection in the world," said Masson's attorney, Charles Morgan.
Malcolm denied making up quotations but acknowledged combining them from different times and places into an unbroken monologue for clarity's sake. She insisted she didn't distort the speaker's meaning and said the practice was common at The New Yorker.
Morgan said he was inclined to ask the judge to retry the entire case because the jury didn't find all the quotations libelous. Bostwick agreed the whole case should be retried.
Charles Kenady, a lawyer for The New Yorker, said he would seek to remove the magazine from the case because the jury cleared the magazine. The jury found that Malcolm was an independent contractor and that the staff had no doubts about accuracy before publication.
The profile centered on Masson's 1981 firing as projects director of the Freud Archives after he publicly denounced Freud's theory that women usually fantasized claims of childhood sexual abuse.
The jury found that two of the quotations - including a statement that Masson planned to turn Freud's house into "a place of sex, women, fun" - were deliberate or reckless falsehoods perpetrated by Malcolm.