Janet Malcolm On Learning To Be a Witness

From the New York Review of Books: Janet Malcolm writes about the assistance Sam Chwat gave her in preparing for her appearance in the famous retrial of Masson v. Malcolm. She says in part: 

The transformation had two parts. The first was the erasure of the New Yorker image of the writer as a person who does not go around showing off how great and special he or she is. No! A trial jury is like an audience at a play that wants to be entertained. Witnesses, like stage actors, have to play to that audience if their performances are to be convincing. At the first trial I had been scarcely aware of the jury. When Morgan questioned me, I responded to him alone. Sam Chwat immediately corrected my misconception of whom to address: the jury, only the jury. As Morgan had been using me to communicate to the jury, I would need to learn how to use him to do the same.

Link to the Supreme Court ruling here.  

More about the litigation in the selected bibliography below.

Kathy Roberts Forde, How Masson v. New Yorker Has Shaped the Legal Landscape of Narrative Journalism 10 Journal of Communication Law and Policy 101 (2010).

Kathy Roberts Forde, Literary Journalism on Trial (University of Massachusetts Press, 2008).

Judith Haydel, Masson v. New Yorker Magazine (1991),

The Language of Race In "New York Times v. Sullivan"

Carlo A. Pedrioli, Barry University, has published New York Times v. Sullivan and the Rhetorics of Race: A Look at the Briefs, Oral Arguments, and Opinions at 7 Georgetown Journal of Law and Modern Critical Race Perspectives 109 (2015). Here is the abstract.

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for the Court, the racial context that framed the case was hard to ignore, and Brennan, in ultimately resolving the case without remanding it to the Alabama courts for further proceedings, did not completely ignore race. Additionally, Justice Hugo Black, a native of Alabama, discussed race explicitly and at more length in his concurring opinion, and Justice Arthur Goldberg briefly mentioned race. Overall, the article aims to provide a better understanding of some of the rhetorical choices that may be available to legal advocates and members of the bench regarding complex topics like race.

Download the article from SSRN at the link.

George V, Come Into the Court!

Robin Callender Smith, University of London, Humanities, Social Sciences, and Law, has published The Missing Witness? George V, Competence and Compellability and the Criminal Libel Trial of Edward Frederick Mylius. Here is the abstract.

A criminal libel trial in 1911 set the monarch against one of his subjects. Edward Mylius repeated a rumour that accused King George V of marrying Queen Mary when – secretly – the King had already married someone else and had three children. The criminal charge, the process used to bring the issue to court, the advice to the King of the relevant Ministers (including Winston Churchill as Home Secretary) and the trial itself stretched the boundaries of fairness. The legacy of the trial created a lingering problem. Can the monarch ever be required to face the direct scrutiny of examination by being required to appear as a witness in his or her own court to support a personal complaint?

Download the paper from SSRN at the link. 

Defamation and Humor

Laura E. Little, Temple University School of Law, is publishing Just a Joke: Defamatory Humor and Incongruity's Promise, in volume 21 of the Southern California Interdisciplinary Law Journal (2011).  Here is the abstract.

Humor often arises as a defense in defamation actions, with defendants claiming that their challenged communication was "just a joke." Given the long established tie between defamation and First Amendment doctrines, United States courts evaluate the defense in light of free speech protections as well as reputational interests incorporated in the elements of the defamation tort. In grappling with humor, courts usually invoke First Amendment doctrine’s familiar distinction between fact and opinion. If a putative joke is sorted down the "opinion" chute, then the humorist faces no civil liability. If, on the other hand, the putative joke suggests false facts unfavorable to the plaintiff, the defendant may face liability. Useful as an analytical starting point, this fact/opinion dichotomy does not adequately integrate all the values and concerns that come into play where humor and defamation law collide.



Humor is complex, capable of both great good and enormous mischief. The challenge whether to provide legal protection for humorous communications implicates the same value clashes between freedom of expression and protection of reputational interests that appear in other defamation contexts. Yet humor’s potential for individual and collective benefit (as well as its capacity to cut deep wounds) suggests that courts should tailor analysis specifically to humor’s unique qualities. Happily, assistance comes from centuries of interdisciplinary scholarship dedicated to understanding humor. In particular, humor scholarship’s core concept - incongruity (the juxtaposition of two or more unlikely ideas) - helps to calibrate an optimal balance of First Amendment concerns and the values of human dignity, property, and honor in defamatory humor cases.



Assistance for United States courts also comes from an unlikely source - Australia. Australian cultural emphasis on humor and plain speaking as well as its lack of a formal First Amendment enables Australian case law to provide meaningful guidance both affirmatively and negatively, as a foil for identifying what analysis is not well suited to United States common law and constitutional traditions.

Download the article from SSRN at the link.