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Till Press Do Us Part: The Trial of Janet Malcolm and Jeffrey Masson

The Village Voice, November 28, 1994

Janet Malcolm’s Journalistic Relationship With Analyst Jeffrey Masson Seemed as Intimate as Romance. No Wonder Their Recent Libel Trial Felt Like a Divorce.

The proceeding felt more like the end of a bad marriage than a libel trial. Studiously avoiding each other’s glances, New Yorker writer Janet Malcolm and Sanskritist-turned-psychoanalyst Jeffrey Moussaieff Masson spent most of this October sitting only scant yards apart in U.S. District Judge Eugene F. Lynch’s enormous, windowless courtroom. Seventeen floors above San Francisco’s seedy Tenderloin district, the analyst and the journalist had come together for their second trial, each desperate for release from the hulking legal and literary wreckage that seemed to have taken on a life of its own and haunted them for the last 12 years.

Their first trial, held in May 1993, had stirred the kind of media frenzy now centered 300 miles to the south, where the Santa Ana winds blow and O.J. used to Run. Like the Simpson trial, Malcolm v. Masson had implications far greater than the issues at stake. It had grown beyond a mere libel suit, becoming a signifier for some of our society’s most bitterly fought cultural battles, about the press, psychoanalysis, the roles of men and women. By the second trial, popular attention had exhausted itself. The onlookers this time were a reserved bunch: First Amendment lawyers, media consultants, court buffs, journalism students, the occasional stray analyst. Outside the courtroom, nervous journalists milled around, comparing notes to make sure they got all the quotes right. Still, even in its widely overlooked denouement, the Malcolm case continually forces us to face uncomfortable truths and mora1 chaos we would just as soon ignore.

Though the new details would emerge in the second trial, the basic outline of the story was already well known. On October 31, 1982, Malcolm flew to Berkeley to interview the 41-year-old Masson, who had recently been dismissed from his position as projects director of the Sigmund Freud Archives. An expert on the origins of psychoanalysis, Masson claimed to have unearthed documents proving that in 1897 Freud had abandoned his early “seduction theory” for reasons of moral cowardice rather than scientific evidence-a discovery, he told The New York Times, that would cause every patient in analysis since 1901 to be recalled, “like the Pinto.” According to Masson, Dr. Kurt Eissler, an eminent Viennese psychoanalyst who was the head of the archives, had promised to make him his successor, but had turned on his protege when Masson went public with his anti-Freud findings. After being fired, Masson sued the archives for $13 million, eventually settling out of court for $150,000.

At the time of Masson’s cut from the archives, Malcolm was writing a profile of Selma Frailberg, a San Francisco social worker doing research on child abuse. When Frailberg suddenly died, Malcolm abandoned the piece and contacted Masson, who, strangely enough, told her he had been waiting for her call. Their interview continued for a year, during which time Masson even spent four days at her Turtle Bay brownstone while he was in New York with his girlfriend. On December 3, 1983, “Trouble in the Archives,” the first part of Malcolm’s article about Masson’s meteoric rise and precipitous fall, appeared in the New Yorker. “I think you’re going to love it,” she assured him as she sent it by overnight mail.

Upon reading Malcolm’s subtly undermining portrayal of him as a stupendously promiscuous braggart and narcissist, Masson promptly called his lawyer. “I was completely devastated,” he later testified in court. “I had never been so upset in my whole life.” In November 1984, Masson sued Malcolm, The New Yorker, and Knopf (which published the articles in book form) for libel, claiming that virtually everything Malcolm had quoted him as saying (such as “I was like an intellectual gigolo”) was either false, distorted, or had been taken out of context. The next time Masson and Malcolm saw each other was in court.

Often compared to the interminable Jarndyce v. Jarndyce lawsuit in Dickens’s Bleak House, Masson v. Malcolm had traveled a long, misted path through five complaints, one dismissal, two appeals, a hearing before the U.S. Supreme Court, a hung jury, and finally, a completed trial, decided in Malcolm’s favor this November 2. Steadied by her husband and editor, Gardner Botsford, Malcolm wept with relief as the verdict was read. So decisive was the judgment that legal experts believed Masson has little chance of an appeal, and, from the ashen look that fell over his face, he may have lost his taste for the fight. His latest book, When Elephants Weep, a study of the emotional life of animals, will be published next year. Apart from co-teaching a class on journalistic ethics at Berkeley this summer, Masson says he has no further plans. Malcolm is currently writing about Vanessa Bell and the Bloomsbury group for The New Yorker.

Over the years, arguing about Masson v. Malcolm became something of a parlor game for the case’s many followers, who included journalists, analysts, feminists, lawyers, academics, and literary gossips. The argument suddenly flared up in March 1989, when Malcolm published “The Journalist and the Murderer,” an exploration of reportorial ethics that had the effect of dousing the smoldering embers of Masson’s suit with high-test gasoline. In her scathing account of the duplicitous dealings between superjournalist Joe McGinniss and convicted murderer Jeffrey MacDonald (the subject of McGinniss’s book Fatal Vision), Malcolm portrays McGinniss as an unsavory and ambitious hack so desperate to get the story that he feigned friendship with MacDonald long after being convicted of his guilt.

The morality of McGinniss’s collaboration was the fact that he had shared part of his book’s royalties with MacDonald in order to secure his cooperation, an arrangement that inspired Malcolm’s now famous j’accuse, which began, “every journalist who is not too stupid or too full of himself knows that what he does is morally indefensible.” According to Malcolm’s ambitious thesis, every is but a deceptive prologue to a grand betrayal.” Suddenly, all journalists, not just Malcolm herself, were on trial. What further shocked the literary community was that she made no mention of her own entanglement with Masson, whose libel suit was still working its way through the courts. Her article triggered a deluge of psycho-speculation about what made Malcolm tick. Masson’s own lawyer tried (unsuccessfully) to introduce the inflammatory passage at trial in order to show that Malcolm, contrary to her testimony, knew full well that she had betrayed her client.

If Malcolm’s reputation among writers had already suffered because of Masson’s accusations, her sweeping indictment of journalism’s integrity did little to endear her further to her colleagues. “Pretend it’s not Janet,” pleaded the Author’s Guild’s executive director as she tried to convince its members to file an amicus brief with the Supreme Court. “Pretend it’s one of you guys.” In the eyes of many, Malcolm had become a “fallen woman of journalism.”

The very scope of Malcolm’s arguments guaranteed the controversies around her would continue to swell, to the point that-much like the question of Alger Hiss’s innocence or Anita Hill’s veracity-where you stood on the case that seemed to say something about what kind of person you were. Was Freud a saint or a bully, a scientist or a schemer? Are journalists immoral cretins who betray their subjects without remorse? Do quotation marks indicate what was actually said, or are they only an approximation? Are women who claim to have been sexually abused telling the truth, or simply fantasizing? Had Masson’s reputation been destroyed by his verbal indiscretion, or by Malcolm’s unscrupulousness?

For all that, the legal issue at the heart of Masson v. Malcolm was fairly simple: Had Masson uttered the five disputed quotes-one of which appears on tape in a slightly different form, three in her typed notes, and one in her memory-or not? And, more important: Did the quotes hang from Malcolm’s artfully devastating portrait, or does the portrait itself dangle precariously from one or more of the five damaging quotes? This last question carried very real consequences since, if the latter were true, Masson might receive the $7 million in damages he was requesting.

MASSON: I hope I never have to sue anybody in my life again. [laughs]

MALCOLM: Yeah, it’s not pleasant, is it?

MASSON: No, it’s a very unpleasant procedure.

-interview tape number four, page 12

Despite the fact that Malcolm and Masson detest each other today-and about this there is no doubt-it was clearly not always so. Their clumsy, mannered attempts at avoiding interaction reminded me of the awkward, exaggerated chilliness between people who once had great affection for each other. As the trial began, the two took up well-rehearsed roles in the now familiar ordeal. For his part, Masson was impeccably groomed, usually wearing a smartly cut Italian suit or jacket, always with a tasteful tie. (“That Guy Masson’s got an absolutely charismatic presence,” observed Bernard Cherin, a filmmaker who made ads for JFK’s 1960 campaign. “I bet I could get him elected to office.”) Well-tanned, graying hair worn just a bit long, his half-glasses dangling from his neck, Masson looked every bit the sophisticated European professor, unfazed by his daily humiliation. Eschewing the legal pads used by those around him, Masson inscribed his thoughts in an elegant leather notebook with an expensive-looking siver pen.

Malcolm ‘s appearance paled (literally) in comparison. Considerable efforts had been taken to soften her image, including intensive training with a dialect specialist who helped develop her body language to better communicate the truthfulness of her testimony. She had rinsed the gray out of her dark brown hair, and each day wore a tasteful, fitted dress, selected from a palette of pretty muted greens and pinks. Complete with elegant silk scarves, white stockings, and brown suede pumps, Malcolm resembled one of the stylish literary women of the 1950s she had recently chronicled in her book on Sylvia Plath. When The New York Times snapped a picture of her on the trial’s opening day, the famously press-shy Malcolm even looked directly at the camera and winced a small, girlish smile.

Because of the placement of a large projection screen, most of the spectators sat with Malcolm’s entourage on the left side of the courtroom, leaving Masson, usually alone, huddled against the opposite wall. His lawyer, Charles O. Morgan, a tough, elderly Irishman who, although he dressed in the dark striped suits of a banker, had the genteel bearing of a priest, consulting with Masson frequently. Masson’s long-time fiancée, the feminist lawyer Catherine MacKinnon, rarely appeared in court because of her teaching schedule in Ann Arbor. By contrast, Malcolm was always surrounded by attentive paralegals, well-wishers, family, and, most importantly, her lawyer, Gary Bostwick. In a twist that resembled literature more than life, Malcolm was defended by the same man who had represented convicted murderer Jeffrey MacDonald. She had met both while writing her book.

While the trial was dominated by the obligatory animosity that characterizes all litigation, traces of Masson and Malcolm’s erstwhile friendship kept intruding; every time a tape of their interviews was played, or a personal letter read, it was evident that theirs had been no run-of-the-mill journalistic encounter. Even a brief attempt to negotiate a settlement foundered because Malcolm’s astounding “offer”-that Masson write her a letter of apology- seemed more appropriate to healing a breached friendship than resolving a bitter legal dispute. From the thicket of daunting psychoanalytic jargon emerged the kinds of intimate moments that usually occur only between close friends.

Borrowing a strategy from Bostwick’s own playbook, Masson used the theme of “a friend betrayed” to press his case. In Jeffrey MacDonald’s suit against Joe McGinniss, Bostwick had made a lot of the fact of McGinniss’s blatant dishonesty in pretending to be MacDonald’s friend long after he believed he was a crazed killer. Now it was Masson’s turn to play the role of betrayed intimate, as he complained that he had never expected Malcolm actually to use much of the unflattering personal information he had shared with her. Although a huge portion of their interviews centered on his sex life, Masson claimed he had believed Malcolm’s article would confine itself to his scholarly work, and that his personal revelations had been little more than friendly, off-the-record chitchat. He was shocked, shocked, that she went ahead and printed them.

“Is there something about those months that you were sitting in front of that tape recorder that made you think it was not going to be recorded?” Bostwick asked Masson skeptically. “Yes, I was assured by Janet Malcolm that she was not going to go into those kinds of things and I believed her. I was telling her this as a friend,” Masson said, pausing before he played his card, “just as she told me many details of her life.” At this, Bostwick practically exploded with contempt, “Name one!” he shouted. “You really want me to?” taunted Masson, leering enough to imply what everybody was thinking.

If Masson v. Malcolm felt like a divorce, it was divorce with a strange turn: Imagine a judge insisting that before he will grant a couple their final separation, they must first settle each of the petty, late-night arguments that destroyed the relationship, and you get the idea. Absolutely every disagreement between the writer and the analyst, it seemed, had to be settled once and for all; no slight could be glossed over, no indignity ignored. Even the transcript of their taped conversations has come up for grabs-Malcolm has claimed ownership because it was her interview; Masson says he should control the copyright.

Under the guise of “establishing state of mind” and “impeaching credibility,” their lawyers engaged in a protracted binge of sophisticated character assassination. “What did you really think about Freud, Janet?” “How many women have you actually slept with, Jeff?” Masson could not sue Malcolm simply because she made him look like a fool, so was put in the absurd position of trying to prove that his reputation had been ruined by one or more of the five quotes. Because of the inherent difficulty of either proving or disproving Masson’s claims-how does one determine exactly which element of Malcolm’s richly textured portrait actually injured Masson?-the trial took on a slightly odd metaphysical feeling.

So, for the month or October, Judge Lynch’s Courtroom became something of an upside-down world where thorny questions about early Freud history shared the stage with pedestrian disputes over the placement of a table in Malcolm ‘s living room. Thus, onlookers learned that contrary to Malcolm’s account, Masson in fact hates goat cheese; that he called Anna Freud’s house “asensual,” no; “asexual”; that he may actually have actually slept with as many as 1300 women (rather than the measly 1000 previously reported), who ranged in ages from 15 to 80; and that although Masson was “angry” with Anna Freud he was definitely not “bitter.” At one point I glanced at my watch and realized that Bostwick had spent 10 minutes questioning Masson about his interpretation of Malcolm’s understanding of a quote about Masson from another analyst-a quote that Masson had himself related to Malcolm, but that never even appeared in the article.

MALCOLM: But you see, the reason we are both accepting this rather strange relationship where you do all the talking… and, there is no real exchange or not, not the usual exchange, is because something else is going to come out of this.

MASSON: That’s right….

MALCOLM: There is something else. The relationship itself is almost being sacrificed to something else.

-interview number eight, page 45

Examining the three massive, unedited volumes of transcripts made from the taped interviews, it seems obvious that their relationship was fated to end tragically. Their expectations were tremendous: In Masson, Malcolm thought she had found the perfect, completely uninhibited subject; in Malcolm, Masson believed he had an all-forgiving confessor. “You are the absolute, the most open person I’ve ever met in my life,” Malcolm gushes gleefully of the suicidally compromising material Masson so obligingly offers. “I’m perfectly prepared to say anythingâincluding my sexual feelings for you,” he responds. “I really feel that I’ve committed myself to you,” he adds.

It seems strange that two such ardent students of Freud had no clue that their collaboration would end up such a disaster. Their encounter bore a striking resemblance to analysis, so perhaps some psychoanalytic concepts can help explain the contours of their prelapsarian bond. Reading the transcript of Masson’s free-associating monologues, which are rarely punctuated by much more than one of Malcolm’s demure “Um-hmmm”s is probably as close as I will ever get (thank God) to listening to someone else’s therapy session. “It was a sexual dream,” Masson confides to his fantasy subject, “we were making love in the dream and I felt that if I were to talk about it in any detail that, in itself, especially then-we were face to face-is a very flirtatious thing to do.” Were he paying $150 per hour Masson’s flirtation would be labeled “transference,” although that would fix their ordeal within the psychoanalytic paradigm he so thoroughly detests. Most journalistic relationships, like most psychoanalytic ones, end badly, and theirs was no exception. “Each ‘termination’ leaves the participants with the taste of ashes in their mouths,” Malcolm writes presciently in her book, Psychoanalysis: The Impossible Profession. “Each is absurd; each is a small, pointless death.”

Like the analysand who is rudely awakened from the idealized picture he creates of his analyst, Masson was crushed to find that Malcolm was not at all the person he had convinced himself she was. Commenting on the regressive effect that both journalistic and psychoanalytic relationships have, Malcom observes that “the subject becomes a kind of child to the writer, regarding him as a permissive, all-accepting, all-forgiving mother, and expecting that the book will be written by her. Of course, the book is written by the strict, all-noticing, unforgiving father.” While Masson had expected Malcolm’s rendering of him to be slightly arch, he didn’t believe that, in the end, she could fail to take his side. “You had this idea that I would come out and I would be in total agreement with you and I think that it is disappointing to you that I didn’t exactly,” Malcolm tells Masson towards the end of their interviews.

In light of all Malcolm’s moralizing on the subject of journalistic seduction, what is remarkable about the interviews is just how little Malcolm needed to coax Masson to reveal himself, and how often she actually alerted him to the obvious disparity between their interests. But every time Malcolm tells him of her doubts, Masson, ever the seducer, assures her she will eventually come around. “I am going to give you a lot of documentation and if you read carefully everything I’ve got, there should be no problem,” Masson assures her. “But the facts do not make a story,” she responds pertly, reminding him that she is not a stenographer.

Even the court proceedings themselves bore a strong resemblance to the analytic scene. According to Freud, one’s choices in life are severely limited by the events that occur during the malleable oedipal period, between ages three to six. The character one forges in the heat of the oedipal struggle determines the kind of life one will have. Freud teaches that man’s sense of his freedom is an illusion; that we are not masters of our own house. Analysis, if successful, helps one come to terms with the painful knowledge of one’s limitations, the result being that the patient gains a tiny bit more liberty. “How much more?” asks Aaron Green, the pseudonymous analyst profiled in Malcolm’s Psychoanalysis: The Impossible Profession. “This much,” he answers “instead of going straight down the meridian, he will go five degrees, ten degrees-maybe fifteen degrees if you push very hard-to the left or the right, but no more than that.”

Twelve years after their first meeting, the journalist and the analyst battled each other under the enormous shadow cast by the mountainous evidence of their lengthy collaboration. Like the patients struggling against their strict oedipal confines, Masson and Malcolm spent most of their testimony trying to escape from the awesome weight of their formative encounter, as well as the subsequent tangled history that lashes them together. Fifty hours of tapes, 1056 pages of transcripts, an entire previous trial’s worth of testimony, the current trial’s witnesses, countless depositions, volumes of personal notes and letters, Supreme and Appellate court decisions, the books each has written in the intervening years-all conspired to limit the freedom of either to craft his or her own distinct story.

The psychological weight of this burdensome history sometimes manifested itself quite literally, as Malcolm would slowly disappear on the witness stand, her wren-like face hidden by an ever growing wall of documents. Although frequent breaks were taken to clear them away so that she could see her questioner, their imposing presence lingered on. The trial’s central drama lay in seeing how far each litigant could stay from the looming colossus before being dragged back. Malcolm’s strategy was to answer every difficult question “yes and no,” thus giving her room to equivocate. Masson simply talked as fast as he could, exploding with entire paragraphs where a simple “yes” or “no” would suffice.

A lawsuit is to ordinary life what war is to peacetime. In a lawsuit, everybody on the other side is bad. A trial transcript is a discourse in malevolence

–The Journalist and the Murderer, page 63

Malcolm lost the first trial badly, and it was only the jury’s inability to agree on the damages Masson had suffered-their proposed awards spanned from $1 to several million-that forced a mistrial. In answering a detailed questionnaire, the jury found that all five quotes were false, and that two of them fulfilled the additional requirements needed to find that Masson had been libeled (those requirements being that the quotes defamed him and were published with “reckless disregard for the truth”). Malcolm was shocked by the outcome, since going to the trial she had the confidence (some would say arrogance) to believe that her journalistic methods and general credibility were beyond question. After all, she wrote for The New Yorker-the citadel of American journalism, whose reputation for factual accuracy was virtually unassailable. Much to her surprise, she found that the jury was extremely skeptical about many aspects of her defense: they doubted the accuracy of the four typed pages, on which three of the five disputed quotes appeared; they believed that the quotes had been deliberately altered; and, in the end, they couldn’t come up with a reason why Masson would have said the damaging things he had denied saying.

So how did Malcolm manage to win this time around? The facts of the case were identical, and Morgan used nearly the same tactics he had during the first encounter. It is rare in like that one gets a second chance to tackle a problem, but Malcolm and Bostwick used the opportunity to come up with a more effective strategy, enhancing her credibility while destroying Masson’s.

A slightly rumpled man with a bushy, graying mustache, Bostwick possesses a disarming combination of folksy, Midwestern good humor (he is a native of Kansas) and go-for-the-jugular instincts. Looking back at Malcolm’s portrait of him in The Journalist and the Murderer, one sees that she had actually conducted a job interview, which he passed with flying colors. “I was interested to see that, even though the lawsuit was settled, Bostwick was still in the grip of the dislike and contempt for the defendant which had informed his work in the courtroom,” Malcolm writes approvingly. “Evidently, to be a good trial lawyer you have to be a good hater.”

Frequently peppering his statements with references to his mother, Bostwick used a set of brightly colored children’s alphabet blocks (which spelled “story”) in his opening argument to show how Malcolm compressed the 250,000 words Masson spoke to her into the 12,000 words worth of quotations that appear in the article. His closing argument included whimsical oil paintings of Jeff Masson’s fall â Masson with empty pockets turned out, and as an analyst falling asleep in mid session â made, he noted, by his son. Judging by the smiles on their faces, the seven women and one man in the jury were charmed. “My mom always told me that if I didn’t have anything nice to say, not to say anything,” Bostwick said in his closing statement. Then, clearly disregarding all maternal advice, he aimed both barrels at Masson’s reputation.

Any doubts about whether Bostwick would play hardball were put to rest the very first day in court. While questioning NYU journalism professor William E. Burrows, he spied an opportunity to score a larger point. One problem for Malcolm’s case had been that, in a deposition taken just before he died, the New Yorker’s editor in chief, William Shawn, testified that Malcolm had assured him that everything was on tape â a statement that cast doubt on the typed notes she used to document three of the disputed quotes. How to impeach the testimony of a much respected, deceased editor without looking mean?

During cross examination, Burrows, who piously declared himself a quotation “fundamentalist,” also mentioned that he had once written a piece about aviation for Shawn, which had never been published. Bostwick seized the opening.

With this preemptive strike, Bostwick made sure that the first thing the jury heard about Shawn was that he was unreliable. Bostwick followed this up later by arguing that Shawn was simply a “muddled” old man whose mind was failing.

Bostwick’s plan had three prongs. His first tactic was to show that Masson had essentially reverse-engineered his suit by comparing the 250,000 he had uttered on tape to his 12,000 words of quotes in Malcolm’s article until he finally found a few passages that appeared not to have documentation. For Masson, bringing suit had been an arduous process: He’d had to revise his complaint four times to convince the judge he had enough evidence to go to court. If Masson had really been so terribly upset by the five damning quotes, Bostwick reasoned, why hadn’t they appeared in the original complaints.

In order to underscore Masson’s fallibility, Bostwick developed an elaborate cross-examining ritual: first he would display one of the early complaints on the screen and ask Masson to verify his signature at the bottom â “under threat of perjury he would add for emphasis. Next, he would play a tape of Masson uttering the very words he denied saying. The effect of this tactic was extraordinary. It made Masson look as if he didn’t really know what he had said and was simply casting around for any quote with which to suit; it made him seem wildly vengeful. “It is always helpful for a jury to hear a witness lie right in front of you,” Bostwick commented later. This was disingenuous because Masson did not have access to the tapes until February, 1986, when he revised his last complaint. Before that he couldn’t possibly have “known” what he had actually said. Still, Bostwick made his point: if Masson’s memory was faulty so soon after the interviews, surely it was worse now when he denied uttering words that Malcolm had only in her notes. Bostwick insisted that Masson’s real problem was that he would say anything to anybody, only to regret it later â an analysis that the jury ultimately found convincing.

The overhaul of Malcolm’s image was crucial to the second prong of Bostwick’s strategy. Even if Masson’s quotes had been inadvertently altered, Bostwick hoped to show that Malcolm was not the sort of person who would do so with the “reckless disregard of the truth” that must be demonstrated in order to prove libel. Journalists don’t have First Amendment protection when they lie, but they are allowed to make mistakes. In this regard, Malcolm convinced the jury that she was not the aloof, arrogant writer she appeared to be in the first trial, but an honest, hard working journalist whose conscience was clear because of the scrupulous attention with which she verified her facts. Even if Masson proved that some of the quotes were false and defamatory, Bostwick left no doubt in the jury’s mind that Malcolm had not injured Masson deliberately.

The third, and most effective, part of Bostwick’s plan required that he trick Masson into opening up a line of inquiry Masson would just as soon have avoided. Since Masson was complaining that Malcolm had made him look foolish by taking only the most unflattering information from their interviews, Bostwick wanted to show that she had used some of the really damaging information Masson had told her, the article could have been much, much worse. The notion that Malcolm had actually spared Masson’s feelings will come as a surprise to anyone who has read “Trouble in the Archives,” but this is precisely what Bostwick set out to prove.

Getting the information out, however, was going to be a challenge. Prior to the trial, Judge Lynch had decided (per Rule #403) that eight passages from the interviews could not be introduced because they were too damaging to Masson’s reputation for the jury to hear. If Bostwick was going to get these quotes on trial, Masson had to open the door for him.

There was one quote in particular that seemed especially to irk him. In it, Masson told Malcolm how he had convinced Anna Freud to let him edit a complete edition of correspondence between Sigmund Freud and his friend Wilhelm Fleiss (later published by Harvard University Press). “How can you do this work? You don’t know enough German,” Anna Freud asks him. “I said, “I’ll go to Germany and learn it in six months.’ She said, “You can’t learn German that fast.’ In the fall of 1979, I went to Munich, and six months later I came back speaking fluent German,” he tells Malcolm triumphantly.

Anyone who has studied German suspects instantly that Masson is lying. In his first complaint, Masson denied ever making such a ridiculous and boastful claim, but when those exact words were found to be on tape, he dropped them from the suit. Still, Masson complained bitterly while on the witness stand that Malcolm had taken advantage of him by choosing to quote only this version of the story, when he had explained to her at subsequent meetings that he didn’t actually know German all that well. He had merely exaggerated his linguistic ability and clearly resented Bostwick’s harping on the comment during his cross-examination.

After leading Masson painstakingly through each world of the offending sentence, Bostwick laid his trap. His voice dripping with sarcasm, Bostwick’s production reached a crescendo.

BOSTWICK: “So, Mr. Masson, if in fact that passage reveals you as a braggart and a liar, it was because you spoke those words, isn’t that right?”

MASSON: “I did speak the words. I also explained to Malcolm two days later that I didn’t really speak fluent German and didn’t really know it all that well, and she had a choice which passage to chose and she chose the one that put me in the worst light!”

BOSTWICK: “She chose the one that put you in the worst light? Did she have any malice against you?”

MASSON: “Yes, I believe she did, absolutely. She wanted to show me at my worst. Whenever she had a choice she always took the worst one.

After trading a knowing glance with Judge Lynch, Bostwick allowed a small smile to peek out from behind his mustache. Masson had opened the door. In his effort to impeach Masson’s broad assertion that Malcolm had “always” chosen his most unflattering passage, Bostwick could now bring in many of the nasty things that she hadn’t used. Once Morgan realized what his client had done, there ensued a flurry of objections, ending in a side-bar conference to wrangle over which of the damaging passages could be admitted.

In the magical way legal language has of desexualizing anything it touches, each of the eight passages was referred to in code. “Your honor, I submit that Rule #403 should pertain to the erection,” pleaded Morgan with high seriousness.

For the next two days, Bostwick laced his withering cross-examination with some of the more lurid information Masson had shared with Malcolm, but that had never before been heard in public. After reading the passage in question and then forcing Masson to elaborate on it with great detail (thereby drawing out the experience as long as possible), Bostwick would curtly scold him in his most pious preacher’s voice: “And she didn’t use any of that, did she now?”

In some cases, it turns out that Malcolm had used Masson’s spicy anecdotes in the piece, although in a sanitized form. For instance, it turns out that the innocuous “book on love” Masson tells her he is thinking of writing was actually about a global sex tour he and some friends were planning to take. Masson’s idea was that by sleeping with a number of men and women in each country (the group would include “researchers” of both sexes) they could divine something significant about the national characterâthink of the anthropologist as sex worker. Masson sent the book proposalâin which he estimates that the trip would require a $60,000 advanceâto Malcolm’s then literary agent, Georges Borchardt. It was never written.

In other passages Bostwick raised, Masson tells Malcolm that as a practicing analyst he sometimes got erections when listening to his female patients’ fantasies; that in Munich he had learned most of his German “Auf den Kissen,” which translates roughly as “in bed”; and that he believed all analysts were dullâso dull, in fact, that he couldn’t conceive of including them in his sexual explorations. “I couldn’t imagine palling around with an analyst. You know, “Let’s go pick up some women,'” Masson tells her. “They wouldn’t do that, right?”

In a section from the interview transcripts that wasn’t allowed in court, Malcolm presses Masson to tell her about his alternative to psychoanalysis. Masson is unhappy with the one-sidedness of traditional therapy and believes one might learn more by having sex than talking. “I’ve slept with enough women to know that’s the first place you discover problems in their childhood is the way they, the way they fuck,” he explains. “Everybody has problems around screwing. Certain things they can’t stand. Certain things they need. Certain fantasies they have to have,” he says. “If they’re not peculiar in what they don’t want, they’re peculiar in what they can’t admit to wanting.”

In the transcript, this leads to a discussion of Masson’s theory of “mutual analysis,” which, in rejecting the hierarchy of the analytic setting, instead involves two researchers who talk about each other’s problems and then, in the course of their therapeutic work, go to bed with each other. He elaborates on this “special relationship”:

Masson: “You would be going to bed for, not necessarily sexual pleasure though I’m sure it would probably be pleasant a lot of times; a lot of times it wouldn’t be but it would be a scientific exploration. You are looking for something together, about each other and about your own pasts and when you finally succeed, say four years down the line, you may then say, “We have been through the most intimate thing that two people can do together. It has benefited each of us enormously. We part close friends but we really don’t need each other any moreâWe discovered that we have other interests and other needs.’ And they would part as friends. I see that as a, as a possibility. But you know that’s not a living, as they say in Yiddish.”

Malcolm: “But what you describe sounds like a very good marriage.”

Masson: “Sounds like a good marriage except that it doesn’t have the commitment of a marriage and you could presumably do that, uh, I suppose everybody might be able to do it with more than a few.”

Before ending his cross-examination, Bostwick revisited Masson’s claim of having learned German in six months. Pointing out two other passages in which Masson makes the same statement, Bostwick asked Masson whether he still thought Malcolm had acted maliciously. In a change of strategy, Masson suddenly defended the veracity of his grandiose claim. “It was strictly true when I said I spoke to Anna Freud fluently,” he explained, obviously pleased with his cleverness, “because I had memorized the sentences in order to impress her.” A deafening silence fell over the courtroom. “He just couldn’t keep his mouth shut,” observed one of the jurors after the trial. “He opened himself up and showed his true colors. She just painted him.”

When your piece comes out, never again will anybody talk about my book. They’re going to talk about the New Yorker piece: “In the New Yorker piece it said, you said, “Everyone who does psychotherapy is evil.’ What the hell did you mean by that? I don’t consider myself evil.” “Well, you are, you poor little fucker.”âMasson to Malcolm, tape number 13, page 42.

Masson was right; when Malcolm’s article appeared and people didn’t want to talk about his book, The Assault on Truth. Or worse, they did, but only through the lens of her profile. To show the damage Malcolm had inflicted, Morgan introduced review after review of The Assault on Truth (which sold a mere 11,000 copies), each with damaging insights lifted from Malcolm. In The Boston Globe, Robert Coles called Masson “a grandiose egoist, a self-destructive foolâ [whose] own words reveal the profile.” “All the author deserves is oblivion,” added Anthony Storr in The New York Times. For Masson, a classic narcissist who must always be the central character in his own drama, it must have been torture. “This twisted, distorted portrait has become the story of my life,” Masson told the jury, with genuine pathos.

After “Trouble in the Archives” appeared, the trauma of being forever imprisoned within Malcolm’s narrative launched Masson on a desperate “graphopathic” quest to wrest back the story of his life. In lectures, forums, articles, and books, Masson has spent the last decade obsessively telling his story, over and over again. A modern day Sisyphus, Masson is forever condemned to struggle up a hill, rolling a rock on whose side is etched the phrase “intellectual gigolo.”

Masson’s memoirsâhe has written twoâare fascinating exercises in self-assertion; in each he scours the details his biography, methodically trying to stamp out all signs of Malcolm’s presence. Her influence is most obvious when Masson ruminates on the methods he uses to reconstruct scenes from his past; it is excruciatingly self-conscious. “As an academic I had learned to rely on documents,” he writes in My Father’s Guru, which tells the story of his family’s bizarre, live-in spiritual guide. “Now I was forced to fall back on my own memory. How accurate was it? Who can recall, exactly, conversations that took place years in the past?” begins Final Analysis, Masson’s account of his own time on the couch. “Where I have had to rely on my memory and reconstruct conversations, I have tried to ensure that the words I ascribe are authentic,” he writes anxiously. “While I am convinces that the dialogues are as true to the spirit of the actual conversation as memory permits, I cannot suggest that they should be regarded as verbatim.”

Sadly, Masson’s attempts at auto-rehabilitation have robbed him of the very qualities that once made him so vivid and compelling. Hoping to upgrade his tarnished image, he trades robust earthiness for self-righteous piety. In “correcting” Malcolm’s portrait, Masson ends up diminishing himself to the point that he is virtually indistinguishable from the average over-therapatized Milquetoast. Where the old Masson would have brazenly shouted his controversial opinions from the highest mountain top, the new one shuffles his feet nervously, looks down, and whispers them apologetically.

At one point in Malcolm’s article (verified by tapes), Masson recounts a scene in which he is asked by a bitterly jealous analyst why Masson, of all people, has been welcomed into Anna Freud’s exclusive inner circle. His response (“Because I’m smarter than youâ and I’ve got more guts!) is the kind of wonderfully brazen riposte few of us have the chutzpah to muster. But when Masson renders the same scene in Final Analysis it is drenched with Clinton-esque apathy: “It was not a question I could answer to his satisfaction,” Masson writes sensitively, “but I could feel the anger with which it was raised,” The old Masson felt utter contempt for the shrink; the new Masson feels his pain. In another passage from Final Analysis, when asked what his discovery about the seduction theory means for the future of analysis, the new Masson steps on his most memorable line. “Excuse the levity,” he responds somberly, “but it reminds me of the Pinto.” If Malcolm has committed a crime, it’s not that she misquoted Masson, but that she has stolen his soul.

MASSON: Once you get your teeth into something, I don’t think you let go.

MALCOLM: No, not if it seems like the right, right thing for me to be doing. WhichâI think it is.

MASSON: I’m really fascinated by what you’re going to do, so it will be nice when we read each other’s stuff. [laughs]

MALCOLM: Right, absolutely.

–interview tape number 19, page 15

Masson is hardly alone is his reputation compulsion; his preoccupation with Malcolm is fully, if furtively, reciprocated. When The Journalist and the Murderer first appeared, Malcolm was widely criticized for writing a veiled autobiography; how could she have written about a suit so similar to her own?, critics wondered. Malcolm’s indignant responseâthat McGinniss’s case sprang from his deceitful conduct (the gray zone between personal and legal betrayal) while her suit concerned a written textâwas technically correct, but largely beside the point. Masson and MacDonald’s suits are completely different, but the crucial similarity is that both are fueled by the anguish than can (must?) follow intense journalistic collaborationâin both cases the subject felt he had been deceived by a friend.

If The Journalist and the Murderer was a self-conscious indictment of journalistic betrayal, then Malcolm’s most recent book, The Silent Woman: Sylvia Plath and Ted Hughes, is an extended meditation on the tangled collaboration that precedes it. Completed by Malcolm only days before the first trial with Masson began, The Silent Woman is haunted by his ghost on every page. References to libel, lawyers, evidence, proof, and suits abound. A fractured, brilliant book, The Silent Woman is written in the maddeningly digressive style of a travelogue; it is a book about writing a book.

In it, Malcolm’s typically cool, literary reserve is replaced by skittishness. She second-guesses herself, doubts her instincts, and fails to bring about anything resembling closure; the center does not hold. The book’s emotional complexity comes from Malcolm’s double allegiance; she sympathizes with both the hunted (Plath and Hughes) and the hunters (the biographers). Anne Stevenson, Plath’s beleaguered official biographer, is somewhere in the middle, and it is with her that Malcolm most closely identifies. Malcolm and Stevenson are hunters by profession, but in the process of writing their controversial books they have gotten a taste for what it is like to be pursued.

For Malcolm, whose practice of “compressing” quotes and rearranging scenes has been questioned, The Silent Woman sometimes reads like a response to her critics. As if to reassure suspicious readers that no scenes were concocted she tells us exactly where everything happens–”on a train to Cornwall, “in the Indian restaurant,”âdocumenting each step of her journey. In a finale of stupendous literary circularity, Malcolm concludes with a scene that shows her taking the notes she will later use to write the book. “I would want evidence that I had not merely conjured it up for the purposes of my plot but had seen it as well,” are the book’s final words.

In The Silent Woman, Malcolm’s moral absolutism intensifiesâas had, by that time, Masson’s suit. She judges the morality of biographers by even more severe standards than she once did journalists. A biographer’s collaboration with his subject, even with the best intentions, is always immoral. “Where can he go wrong?” Malcolm asks. “Everywhere.” Even when granted permission to quote his subject, the biographer is still culpable; although legally absolved of any wrongdoing, he has simply made the subject an accomplice by cunningly tricking him “to violate his own privacy and betray himself.”

The fact that Masson agreed to be interviewed and talked so freely fails to alleviate Malcolm’s dilemma. In her uncompromising moral universe, the moment the tape started to record, so too began the betrayal. Her legal vindication, while significant, does nothing to resolve the murky ethical quandary that is at the heart of all journalism. Her refusal to flinch in the face of our moral chaos is unnerving. “The freedom to be cruel,” she reminds us in The Silent Woman, “is one of journalism’s uncontested privileges.”