Full opinion text
MEMORANDUM AND ORDER LYNCH, District Judge. I. Introduction The facts regarding defendant Janet Malcolm’s extensive interviews of plaintiff Jeffrey Masson as a subject of a lengthy profile, defendant New Yorker’s publication of the profile in a two-part series, and plaintiffs contention that the article defamed him by falsely quoting him have been fully set forth by this Court and the other courts which have considered this action. See Masson v. New Yorker Magazine, Inc., 686 F.Supp. 1396 (N.D.Cal.1987); Masson v. New Yorker Magazine, Inc., 895 F.2d 1535 (9th Cir.1989); Masson v. New Yorker Magazine, Inc., — U.S.-, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), Masson v. New Yorker Magazine, Inc., 960 F.2d 896 (9th Cir.1992). These facts will be repeated here only as necessary. Trial was set in this matter on five quotations which plaintiff alleged were false and defamatory to him. After a three-week jury trial and three days of jury deliberation, the jury answered eight of nine special verdict questions. The jury found that all five quotations were false, Special Verdict Questions 1, and all five were defamatory, Special Verdict Questions 2. In considering the case against Janet Malcolm, the jury found that she was aware that the “sex, women, fun” and “wrong man” quotations defamed plaintiff, Special Verdict Question 8, and that Malcolm acted with knowledge of falsity or reckless disregard as to the falsity of those two quotations. Special Verdict Question J. The jury also found that those two quotations damaged plaintiff, Special Verdict Question 8. However, the jury was unable to reach a unanimous decision on the amount of damages. Special Verdict Question 9. As to the New Yorker, the jury found that Malcolm was an independent contractor rather than an employee, so that her acts were not imputed to the New Yorker. Special Verdict Question 5. The jury also found that the New Yorker was aware of the defamatory meaning of the “sex, women, fun” quotation, Special Verdict Question 6. However, it found that the New Yorker did not act with knowledge that quotation was false or with reckless disregard as to the falsity of that quotation. Special Verdict Question 7. The Court is now faced with a number of post-trial motions. These motions include the New Yorker’s Motion To Enforce Jury Findings And For Entry Of Judgment; Masson’s Motion For Partial New Trial Or, In The Alternative, For New Trial; Malcolm’s Motion For Re-Trial On All Issues As To Her; Malcolm’s Motion For New Trial On The Grounds That The Verdict Is Against The Weight Of The Evidence; Malcolm’s Motion For New Trial On The Grounds Of Erroneously Excluded Evidence; Malcolm’s Motion For New Trial On The Grounds Of Inconsistent Verdicts; Malcolm’s Motion For New Trial On The Grounds Of Erroneous Jury Instructions; Malcolm’s Motion In The Alternative Re garding The “Wrong Man” Quote; and Mas-son’s Motion To Strike Juror Declarations. A hearing on these motions was held on August 3, 1993, with all parties represented by counsel. The Court requested additional briefing from the New Yorker and from plaintiff, and those briefs have been filed with the Court. Although the Court is presented with nine separate motions, several issues are overlapping and dispositive, and there is no need to address each of these motions or all of the issues presented by them. In resolving the issues before it, the Court will first conduct an independent review of the evidence against the New Yorker to the extent that such a review is necessary. The Court will next consider whether it erred in instructing the jury that Masson had to prove that both defendants were aware of the defamatory meaning of the five quotations at issue here by a preponderance of the evidence. Third, the Court will determine the merits of plaintiffs arguments regarding defendant Malcolm’s employment status. Fourth, the Court must decide whether to enforce any of the jury’s actions with respect to the New Yorker and whether it should enter judgment in favor of the New Yorker. Finally, the Court must determine the scope of the new trial necessitated by the jury’s failure to reach a unanimous determination on the issue of damages. II. Discussion A. Independent Review In defamation eases involving public figure plaintiffs and media defendants, the Court is required to independently review the evidence to ensure that the judgment “does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Bose Corp. v. Consumers Union of United States Inc., 466 U.S. 485, 511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984). In Bose v. Consumers Union, the Supreme Court held that “ffludges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’ ” Id. at 511, 104 S.Ct. at 1965. This duty appears to apply to trial courts reviewing post-trial motions. Tavoulareas v. Piro, 817 F.2d 762, 776-77 (D.C.Cir.1987). In considering the scope of review, the Ninth Circuit has held that a reviewing court is required to conduct a highly deferential review of credibility determinations, and a less deferential review of the factfinder’s evaluation of other evidence. Newton v. National Broadcasting Co., 930 F.2d 662, 672 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 192, 116 L.Ed.2d 152 (1991). In the absence of a finding of liability, the policy reasons for an independent review would appear to carry less force. However, in an abundance of caution, the Court will review the evidence presented against the New Yorker regarding knowledge of falsity or reckless disregard of falsity. The Court’s review will be limited to four of the five quotations: “sex, women, fun,” “intellectual gigolo,” “greatest analyst,” and “I don’t know why I put it in.” The parties agreed that the “wrong man” quotation was never brought to the New Yorker’s attention because the challenged editing occurred before the manuscript was submitted to the magazine. The parties thus stipulated that the New Yorker was not liable for that quotation. In conducting this review, it is necessary for the Court to first look to the Ninth Circuit’s rationale in remanding the case against the New Yorker to this Court. The Court will then look at the evidence presented at trial. It will next analyze the jury’s answers to special interrogatory questions. Finally, the Court will independently analyze the evidence presented. 1. Ninth Circuit Remand After the Supreme Court’s decision in this case, Masson v. New Yorker, — U.S. --, 111 S.Ct. 2419, the Ninth Circuit ordered the case to proceed against the New Yorker on remand in Masson v. New Yorker, 960 F.2d 896. In reviewing the evidence presented at the summary judgment stage and construing the facts as alleged by plaintiff in the light most favorable to him, Masson v. New Yorker, — U.S. at---, 111 S.Ct. at 2434-35, the Ninth Circuit held that a reasonable jury could find in his favor if his version of events, were proved at trial. The court of appeal found that there were several possible scenarios which, if proved, would support a finding for plaintiff. First, the court supposed that events preceding the publication of the article may have made the New Yorker aware of falsity or may have given it obvious reasons to doubt the veracity of Malcolm’s reporting. The court focused in particular on the fact-checking conversation between plaintiff and the New Yorker’s fact-checker, construing the facts most favorable to plaintiff and extrapolating from his version of events. Second, the court supposed that information about the editing of the “sex, women, fun” quotation could have given the New Yorker pause about that quotation and the article as a whole. -The Ninth Circuit did not refer to any evidence directly related to the “intellectual gigolo” quotation, the “I don’t know why I put it in” quotation, or the “greatest analyst who ever lived” quotation, a. Fact-Checking Incident The Ninth Circuit put great weight on the fact-checking “incident”. The evidence presented at the summary judgment phase showed that a fact-checker for the New Yorker named Nancy Franklin telephoned plaintiff to check various facts in the article, some of which were contained in plaintiffs quotations. Plaintiff alleged that during a short conversation, he pointed out a number of inaccuracies in several quotations. He contended that this upset him and gave him concern about the accuracy of the piece, and that he expressed these feelings to Franklin. He further alleged that he asked Franklin to speak with Malcolm about the accuracy of the quotations, and asked for permission to review his quotations. Plaintiff alleges that Franklin assured him that all quotations would be verbatim and accurate, and that she brushed him off with promises to speak to Malcolm and to get back to him regarding a review of his quotations. Additional evidence introduced at the summary judgment phase related to the fact-checking process showed that several of the inaccuracies pointed out by plaintiff were corrected on a set of galleys. For instance, a notation was made changing “she is a Pole” to “she is a Polish Jew.” However, this change was not ultimately included in the published article. The Ninth Circuit held that based on this incident, a jury could conclude that the New Yorker was aware of falsity or acted in reckless disregard of falsity. The court held that “a jury could reasonably conclude that claims of inaccuracy raised in [the] context [of a fact-checking process initiated by the New Yorker] would be taken seriously.” It also suggested that the fact that some of Mas-son’s changes were made temporarily supports “the inference that The New Yorker did not dismiss Masson’s charges of inaccuracy out of hand.” Id, at 901. The court of appeal posited: One possible conclusion the jury might draw, were it to credit Masson’s version of the events, is that Franklin did indeed develop a serious doubt about the accuracy of the quotations; that she looked into the matter by talking to Malcolm and/or listening to the tapes; that she (or someone else) decided it was necessary to make some of the changes in order to remove known inaccuracies; and that the quotations were changed back as a result of a conscious decision to sacrifice accuracy to creativity. Id. b. Sex, Women, Fun The summary judgment evidence also included a typed draft of the manuscript which included the sentence: “Sun would have come pouring in, people would have come, there would have been parties and laughter and fun.” Malcolm crossed out that sentence and replaced it with the handwritten sentence: “Maresfield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun.” In reviewing this evidence, the appellate court stated, If the jury determines that The New Yorker’s editors were aware of this alteration, it could easily infer that the editors knew Malcolm was fiddling with the quotations, but still decided to shut their ears to Mas-son’s protestations of inaccuracy. All of this would support a conclusion that The New Yorker ‘in fact entertained serious doubts’ as to the accuracy of Malcolm’s quotations, but chose not to investigate the matter. Id. at 901. The court concluded that a jury could believe that Masson’s protestations of inaccuracy, plus the New Yorker’s awareness that Malcolm was “fiddling with the quotations” supported a finding that “The New Yorker had developed ‘obvious reasons to doubt’ the accuracy of the quotations, but in an effort to ‘purposeful[ly] avoid[ ] ... the truth,’ failed to conduct a reasonable investigation of Masson’s claims of inaccuracy.” Masson v. New Yorker, 960 F.2d at 901. The Ninth Circuit additionally held that, If the New Yorker believed the conversations in question were not on tape, it could have confronted Malcolm with its doubts and asked her to verify the accuracy of those quotations by producing her notes and other supported materials. Masson v. New Yorker, 960 F.2d at 902. In the Ninth Circuit’s view, “[h]ad The New Yorker produced evidence that it took these steps and then concluded (even unreasonably) that the quotations were accurate, it would have been entitled to summary judgment.” Id. Based on this evidence, and the possible scenarios it envisioned, the Ninth Circuit held that the jury should be presented with the case against the New Yorker. 2. Evidence At Trial At trial, considerably more evidence was presented regarding the New Yorker’s editing and publication of the article. In addition to the testimony of plaintiff and Franklin regarding the fact-checking incident, the jury and the Court were presented with the manuscript and galleys, the testimony relating to the editing of the piece by Gardner Botsford, the editor of the article (and Janet Malcolm’s husband) and William Shawn, editor-in-chief of the New Yorker, expert testimony regarding journalistic practices, and evidence regarding plaintiffs contact with the New Yorker after he received the first part of the article and galleys of the second part. a. Fact-Checking Incident Plaintiff testified to his version of the fact-checking incident. He testified that Nancy Franklin contacted him and that during the course of a short conversation, he told her that a number of the facts she was checking were incorrect. He asked if he could review the quotations, but she told him he could not. He also asked to be able to speak to Malcolm, and requested that Franklin call him back. According to plaintiff, he was angry and the conversation was emotionally charged. Denise Cammell, plaintiffs then-girlfriend, testified that she was with plaintiff at the time of the telephone call and overheard his portion of the conversation. She testified that he seemed upset by it. Franklin’s description of the telephone conversation differed greatly from plaintiffs. She described the telephone conversation as uneventful and somewhat lengthy. She testified that she checked a number of facts with him, and made some corrections on the galleys. However, she did not recall making a promise of further action. She also did not recall the conversation as emotionally charged or angry. Additional evidence was presented. Telephone records indicating that the conversation lasted for forty-five minutes were introduced. The fact-checking galleys were produced. These showed that certain facts were marked as checked, others were marked as being “on author” or on the author’s authority, and others were corrected or modified. The jury was also given evidence regarding fact-checking policies. The New Yorker introduced its fact-checker’s “bible”, in which fact-checkers were instructed to check facts within quotations, but not quotations themselves. Frederick Taylor of the Wall Street Journal, testified as an expert witness that journalists generally do not check the accuracy of quotations with people who are being quoted. The jury also heard Botsford’s testimony that he reviewed the Franklin’s fact-checking galley and that he decided not to make the changes plaintiff sought for a number of reasons. For instance, in discussing his decision not to change “she is a Pole” to “she is a Polish Jew”, Botsford testified first that he thought the change came late in the process, and second that, “it seemed redundant. She is Polish, she is in the Warsaw ghetto. It tells you all you need to know---- She was Polish, apparently there is no debate about that, and she certainly was Jewish if she was in the Warsaw ghetto.” Botsford also testified that he discussed some of the proposed changes with Malcolm, but that he does not recall the substance of the discussions. No evidence was presented that either Franklin or Botsford formed a belief, based on the inaccuracies pointed out by plaintiff, that Malcolm was falsifying quotations. There was likewise no evidence that anyone “spot-checked” the tapes following the fact-checking conversation. b. Sex, Women, Fun Quotation Evidence regarding the New Yorker’s awareness of the “sex, women, fun” quotation was also presented at trial. The evidence showed that Mr. Greenstein, the libel lawyer who reviewed the article, suggested deleting the phrase “sex, women, fun” because it was potentially libelous. Botsford testified that when he saw Greenstein’s notation, he advised Greenstein that the phrase was on tape, and therefore accurate. Thereafter, Botsford asked Malcolm to confirm the words were on tape. She informed him that they were not, but that they appeared in her notes. He looked at her notes, and saw those words. When questioned about his review, Botsford testified, “in my view what is on tape and what is in the notes are the same. Many reporters don’t use tape. I never used tapes. But reporter’s notes are as valid as tape.” Botsford also testified that he saw the phrase “intellectual gigolo” when he reviewed Malcolm’s notes, but that he was not concerned that the phrase was likewise not on tape. The jury was also presented with evidence that even if the New Yorker editors were aware of any “fiddling” with the quotations, it did not concern them in the way the Ninth Circuit supposed it might. Shawn was asked, “Is it the policy of The New Yorker Magazine to take a partial quote from the same person in another context and put them together to create the image that it is all one quote?” Shawn Depo. at 45:22-25. Shawn replied, It is not a policy to do that, but it is a practice that has to be followed in many, many instances, and if it is done, again, to make something coherent or to — or for literary reasons and not to in any way violate the truth of the situation or of what the person is saying or distorting anything or deceive anybody, it is a practice that has been followed in many instances. I would say that it is an acceptable literary practice. Shawn Depo. at 46:1-9. Additionally, expert witness Nicholas Pileggi testified that this process of putting together different parts of conversations, known as “compression”, was an accepted journalistic device. c. Additional Evidence The jury was presented with other evidence which was not before the Ninth Circuit. Plaintiff presented evidence that upon reading the piece, he immediately contacted his attorney, James Brosnahan. Brosnahan testified at trial that he called the New Yorker to complain about the article on his client’s behalf. He testified that he informed the New Yorker’s legal counsel that the author had “trivialized” a major issue regarding Freud, and that he thought the second part of the article could be changed in a way that would satisfy his client. He additionally referred to “personal nature” of the article. He did not at that time mention misquotations or false quotations, nor did he specifically mention the five quotations before the jury. The only evidence regarding the “intellectual gigolo” quotation was that Botsford was aware that the phrase appeared in Malcolm’s notes. Plaintiff presented no evidence regarding the New Yorker’s state of mind with respect to the falsity of the “I don’t know why I put it in” quotation and the “greatest analyst” quotation. 3. Jury’s Findings Presented with this evidence, the jury found that the New Yorker did not act with knowledge of falsity or with reckless disregard of falsity with respect to the “sex, women, fun” quotation. Because the jury found that the New Yorker was not aware of the defamatory meaning of the “intellectual gigolo” quotation, the “I don’t know why I put it in” quotation and the “greatest analyst” quotation, it did not reach the question of whether the New Yorker acted with knowledge of falsity or with reckless disregard of falsity as to these quotations. The jury did not find liability for the quotation which presented the strongest case for the plaintiff; it is apparent that it did not believe that the New Yorker entertained doubts about the article as a whole. While the Ninth Circuit placed great weight on the fact-checking incident, the jury either did not credit plaintiffs account, or did not believe that the evidence supported a finding that the inaccuracies uncovered during the fact-checking conversation gave the New Yorker reasons to doubt the truth of Malcolm’s reporting. While at the summary judgment phase, disputed facts were construed in the light most favorable to the plaintiff, at trial the jury was permitted to make a credibility determination in deciding which version of the events to believe. The jury may well have determined that Franklin’s version of the fact-checking event more credible, and that the conversation as Franklin described it did not give rise to “obvious reasons to doubt” the truth of Malcolm’s quotations. There was no evidence that Franklin had “developed a serious doubt” about the accuracy of the quotations, nor was there evidence that Franklin either approached Malcolm or listened to the tapes herself, as the Ninth Circuit supposed she might have. Additionally, regardless of its credibility determination, the jury may also have concluded that the corrections suggested by plaintiff did not relate to mistakes of the degree or kind that would cast doubt upon the entirety of Malcolm’s reporting. The jury may have determined that the change from an interest in psychoanalysis to an interested in writing about psychoanalysis or the change from “she is a Pole” who grew up in the Warsaw ghetto to “she is a Polish Jew” were minor alterations in phrasing rather than major errors symptomatic of falsity plaguing the entire article. In addition to supposing that the fact-checking incident may have given the New Yorker reason to doubt the article as a whole, the Ninth Circuit also suggested that the New Yorker may have had evidence that Malcolm was “fiddling” with quotations, and that this may have alerted it to problems both with the “sex, women, fun” quotation and with the article as a whole. The Ninth Circuit additionally held that if the New Yorker believed that conversations were not on tape, it could have asked her to produce her notes as verification. The court stated, “[h]ad The New Yorker produced evidence that it took these steps and then concluded (even unreasonably) that the quotations were accurate, it would have been entitled to summary judgment.” Masson v. New Yorker, 960 F.2d at 901. Having been presented with evidence that the New Yorker knew that the “sex, women, fun” quotation was not on tape, conducted a limited investigation into the accuracy of one quotation, and concluded that the quotation was accurate, the jury apparently credited the testimony in finding that the New Yorker did not act with knowledge of falsity or reckless disregard of falsity. In sum, it appears from the jury’s finding of no liability on this quotation that in its view, neither the knowledge that Malcolm was editing quotations nor the knowledge that that quotation was not on tape gave the New Yorker knowledge of falsity or reckless disregard of truth or falsity. It likewise appears that in the jury’s view, nothing that occurred prior to publication, including the fact-cheeking incident or Brosnahan’s call to the New Yorker, constituted proof by clear and convincing evidence that the New Yorker knew that quotations were false or acted with reckless disregard as to the falsity of quotations. 4. Independent Review Upon its independent review of the evidence, the Court finds that the New Yorker neither knew that the quotations were false, nor acted with reckless disregard as to falsity. The Court saw no evidence at trial that would support the scenarios envisioned by the Ninth Circuit following the fact-checking incident. There was no evidence that Franklin developed doubts about the accuracy of the article as a whole, nor was there evidence that the New Yorker suspected falsity and yet deliberately shut its eyes to the possibility. To the extent that the Court is bound by the jury’s credibility determinations, Newton v. National Broadcasting Co., 930 F.2d at 672, the Court believes that the jury must have found Franklin a more credible witness than plaintiff. And to the extent that its own credibility determinations are relevant, id., the Court finds that Franklin was an extremely credible witness. Franklin’s version is supported by the evidence. For example, the telephone records indicate that the conversation took nearly forty-five minutes, which was much closer to Franklin’s estimate of time. Her version of events comports with the policies set forth in the fact-checker’s bible, in that she checked facts contained within quotations and not quotations themselves. The galleys illustrate that Franklin made a number of factual corrections, not all of which were to plaintiffs quotations. Thus, although the fact-checking conversation as described by plaintiff may have given rise to doubts about Malcolm’s reporting, the Court finds the conversation as more believably described by Franklin did not give the New Yorker obvious reasons to doubt Malcolm. The Court also finds that the New Yorker’s knowledge that Malcolm edited her quotations, as well as its knowledge that the “sex, women, fun” quotation and the “intellectual gigolo” quotation were in Malcolm’s notes rather than on tape, did not give rise to knowledge of falsity or reckless disregard of truth or falsity with respect to those quotations. The New Yorker presented evidence that notes were considered as trustworthy as tapes. It also presented evidence that editing quotations was an accepted practice at the New Yorker. Finally, the Court finds that there was no evidence with respect to the remaining quotations. Accordingly, in its independent review of the evidence, the Court concludes that plaintiff did not meet his burden of showing by clear and convincing evidence that the New Yorker acted with knowledge of falsity or reckless disregard as to truth or falsity. The Court will therefore enforce the jury’s answer to Special Verdict Question 7. B. Awareness of Defamatory Meaning The Court will now address plaintiffs arguments regarding awareness of defamatory meaning. In his Motion for Partial New Trial, or in the Alternative, for New Trial, plaintiff argues that the Court erred in requiring him to show that the defendants were aware of the defamatory meaning of the challenged quotations. In the reply to his motion, plaintiff argues alternatively that the Court erred in failing to include an instruction regarding reckless disregard of defamatory meaning. Both Malcolm and the New Yorker argue that the awareness of defamatory meaning was properly made an element of this case, but that plaintiff should have been required to prove awareness by clear and convincing evidence. The New Yorker additionally argues that there was no evidence of reckless disregard of awareness of defamatory meaning on the part of the New Yorker, and that plaintiff waived his objection to the Court’s failure to instruct on reckless disregard. 1. Correctness of Awareness Instruction The question of awareness of defamatory meaning was briefed, argued, and considered before and during the trial, and little has been added by the post-trial briefs. However, the Court will readdress the issue. Based on the same authorities the Court considered before, the Court reaffirms its finding that awareness of defamatory meaning is properly an element of this case, a. Pre-Trial Determination When the Court first indicated that it planned to instruct the jury on awareness of defamatory meaning as an element of plaintiffs defamation claims in its May 6, 1993 Partial Tentative Ruling, it relied on a number of grounds. The Court noted that no California case made the defendant’s awareness of defamatory meaning an element of the case. However, it looked to BAJI 7.04, which was formulated by a well-regarded committee of California lawyers and judges. That model instruction states that a plaintiff must show that a defendant “knew that the statement was false and defamed plaintiff.” The Court recognized that BAJI was not binding authority, but accepted it as highly persuasive. The Court also noted that the Ninth Circuit adopted a requirement of awareness of defamatory meaning in Newton v. National Broadcasting Co., 930 F.2d at 680. The Court additionally looked to the Seventh Circuit. That court has likewise held that a plaintiff must establish the defendant’s awareness of defamatory meaning when the statements at issue are not defamatory on their face. Woods v. Evansville Press Co., 791 F.2d 480, 486-87 (7th Cir.1986); Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309 (7th Cir.1988). The Court also relied on a law review article which persuasively argued that such an element is required. M. Franklin and D. Bussel, The Plaintiffs Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L.Rev. 825 (1984). In its May 6, 1993 Partial Tentative Ruling, the Court indicated that the element had to be proven by clear and convincing evidence. On May 20, 1993, the Court issued another Tentative Ruling. There, the Court ruled that based on California law, the appropriate standard of proof was proof by a preponderance of the evidence. Based on its determination, the Court instructed the jury as follows: The third element that Mr. Masson must prove by a preponderance of the evidence, is that the defendant was aware at the time of publication of the false, defamatory meaning reasonably communicated by one or more of the challenged quotations. Jury Instructions at p. 22. b. Reconsideration The Court will now review its determination that awareness of defamatory meaning is an element of a libel case. The first question is whether the element of awareness is required by California law. Although the Court initially determined that state law compelled such an element, the Court now decides for reasons set forth below that awareness of defamatory meaning is an element of constitutional law rather than of state law. Thus, California law is not relevant to the Court’s consideration. Plaintiff argues that awareness is not a part of the constitutional jurisprudence of defamation. He contends that this requirement has not been imposed in any constitutional case. In oral argument, plaintiff cited to Justice White’s concurrence in Greenbelt Cooperative Pub. Asso. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) to argue that there was no awareness requirement. In that case, plaintiff sued a newspaper which had used the word “blackmail” in connection with plaintiffs efforts to obtain zoning variances when the newspaper knew the plaintiff had not committed the crime of blackmail. The Supreme Court reversed the trial court, which had defined malice to a jury as “spite, hostility or deliberate intention to harm.” In conducting its independent review of the evidence, the Supreme Court held that the word “blackmail” was not libelous in the circumstances of the ease. The Supreme Court noted, “[I]t is simply impossible to believe that a reader who reached the word “blackmail” ... would not have understood exactly what was meant.... No reader could have thought that [defendants] were charging [plaintiff] with the commission of a criminal offense.” Id. at 14, 90 S.Ct. at 1542. The Supreme Court held that “[t]o permit the infliction of financial liability upon [defendants] would subvert the most fundamental meaning of a free press.” Justice White concurred in the result, but argued that the New York Times protection should not “be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning.” Id. at 22, 90 S.Ct. at 1546. Justice White stated, “I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstood — if they are — by the ordinary reader of their publications.” Id. at 23, 90 S.Ct. at 1546. However, Justice White’s concurrence, which would impose a standard by which media defendants would be liable regardless of their intent, is not the law, and no other member of the Supreme Court joined in that opinion. Moreover, this Court finds such a requirement in the Ninth Circuit’s holding in Newton v. National Broadcasting Co., 930 F.2d 662 (9th Cir.1990) as well as in the holdings of the Seventh Circuit in Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir.1986) and Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309 (7th Cir.1988). The Ninth Circuit’s holding in Newton requires some discussion. In that case, entertainer Wayne Newton sued the National Broadcasting Co. [“NBC”] and several broadcast journalists after they aired a report about Newton’s relationship with the Mafia and his purchase of a casino. A Las Vegas jury found that the report defamed Newton and awarded him compensatory and punitive damages. The trial court upheld the jury’s liability finding and punitive damages award, but reduced the actual damages award. The trial court held that the story created the impression that plaintiff, faced with financial problems, called a Mafia friend who helped him fund his purchase of a casino in exchange for a hidden interest in the venture. The trial court held that even if the defendants “unintentionally left the impression” that Newton’s purchase was funded in part by organized crime, they “should have foreseen” that meaning would be communicated to others. Id. at 680. The district court also found that the defamatory implication of the broadcast was “clear and inescapable.” Id. The Ninth Circuit reversed that finding, holding, The district court erred in its ruling that an interpretation of the broadcast that ‘should have been foreseen’ by the NBC journalists can give rise to liability. The district court’s standard of what ‘should have been foreseen’ is an objective negligence test while the actual malice test of New York Times is deliberately subjective____ Negligence, weighed against an objective standard like the one used by the district court, can never give rise to liability in a public figure defamation case.” Id. at 680. The Ninth Circuit also held that the district court erred in concluding that the defendants were aware of and intended the defamatory meaning which was “clear and inescapable” to the trial court. The Court of Appeals held “[s]uch an approach eviscerates the First Amendment protection established by the New York Times. It would permit liability to be imposed not only for what was not said but also for what was not intended to be said.” Id. at 681. The Ninth Circuit has therefore held that subjective awareness of defamatory meaning must be established in order to impose liability under the First Amendment. The Seventh Circuit reached the same conclusion in Woods v. Evansville Press, 791 F.2d 480, and Saenz v. Playboy, 841 F.2d 1309. In Woods, a television station owner alleged that he was libeled in a newspaper column which he alleged falsely implied that he was dishonest, in financial trouble, and a religious fraud. Id. at 486. The court held plaintiff had not shown that the defendant had “intended the statement to contain such a defamatory implication or even knew that readers could reasonably interpret the statement to contain the defamatory implication.” Id. at 487. In Saenz, a public official sued the author and publisher of an article which he alleged implied he was involved in human rights violations. The court held “where a plaintiff is claiming defamation by innuendo, he must also show with clear and convincing evidence that the defendants intended or knew of the implications the plaintiff is attempting to draw.” Id. at 1318. Plaintiff argues that even if the awareness of defamatory meaning is an element of defamation cases, it is limited to those cases which involve innuendo or indirect defamation. However, while Saenz refers only to defamation by innuendo, nothing Newton suggests such a limitation. The purpose of the awareness element is to ensure that liability is not imposed upon a defendant who acted without fault. Newton, 930 F.2d at 681. This must hold true regardless of whether the defendant’s statement is directly or indirectly libelous. Finally, even if the awareness requirement is so limited, the Court finds that the quotations in this ease constitute indirect libel. Accordingly, for the foregoing reasons, the Court believes that awareness of defamatory meaning is properly an element of a defamation claim, particularly so in the case at hand in which the defamation is somewhat ambiguous and indirect. However, upon retrial, the Court will address the question of a reformulation of the jury instruction, given its view that awareness is a requirement of the Constitution rather than of state law and is an element of actual malice. The Court will also reconsider the issue of the appropriate standard of proof. 2. Reckless Disregard Instruction Plaintiffs next argument is that if awareness of defamatory meaning is an element of the case, the Court should have instructed the jury that plaintiff could establish this element by showing the defendants acted in reckless disregard of defamatory meaning. The New Yorker contends that plaintiff has waived his arguments regarding an instruction on reckless disregard of defamatory meaning, and that no evidence of recklessness was presented. a. Waiver Federal Rule of Civil Procedure 51 requires parties to object to the giving or the failure to give an instruction, “stating distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51. The Ninth Circuit has held that Rule 51 must be read in conjunction with Rule 46. Brown v. Avemco Invest. Corp., 603 F.2d 1367, 1370 (9th Cir.1979). Rule 46 provides that a party need not make a formal exception so long as the party “at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party’s objection to the action of the court and the grounds therefore.” Fed.R.Civ.P. 46. A party need not object only “if the party’s position has previously been made clear to the court and it is plain that a further objection would be unavailing.” Brown v. Avemco, 603 F.2d at 1370, citing 9 C. Wright & A. Miller, Federal Practice and Procedure § 2553 at 639-40 (1971). It is not enough for a party simply to propose an alternate instruction. Robert’s Waikiki U-Drive Inc. v. Budget Rent-a-Car Systems, Inc., 732 F.2d 1403 (9th Cir.1984). Instead, the trial court must be “made aware of any specific concern with the proposed instructions.” Benigni v. Hemet, 879 F.2d 473, 475-76 (9th Cir.1988). The Ninth Circuit has held that “[t]he objection must be sufficiently specific to bring into focus the precise nature of the alleged error.” Investment Service Co. v. Allied Equities Corp., 519 F.2d 508, 511 (9th Cir.1975). A “specific objection or argument” must focus the issue “or give the court an opportunity to modify the instruction to incorporate the elements of the ... proposed instructions.” Benigni v. Hemet, 879 F.2d at 476. In this case, the plaintiff and both defendants submitted both joint and separate proposed jury instructions, along with written arguments, prior to trial. The parties initially proposed Joint Jury Instruction No. 2, which included a requirement that plaintiff show that the defendants were aware of the defamatory meaning of the quotations by clear and convincing evidence. Plaintiff objected to that portion of the instruction, arguing in his Written Arguments Regarding the Parties’ Proposed Jury Instructions that awareness of defamatory meaning was not an element of the case. However, plaintiff did not suggest at that time that recklessness should be included. Plaintiff then submitted his amended proposed jury instructions, which likewise did not address reckless disregard of defamatory meaning. On May 6, 1993, the Court issued its Partial Tentative Ruling, in which the Court indicated it would include an instruction requiring awareness of defamatory meaning by clear and convincing evidence. On May 10, 1993, in his response to the Court’s tentative ruling, plaintiff argued that no such element was required, but alternately argued that if the Court were to include such an element, the instruction should include the possibility of reckless disregard of defamatory meaning. On May 20, 1993, the Court issued another Tentative Ruling in which it stated that it would instruct the jury on awareness, but that the standard of proof was preponderance of the evidence. On May 26, 1993, plaintiff filed his proposed Special Verdict Form. Plaintiffs proposed form included a question about awareness of defamatory meaning, but did not propose a question relating to reckless disregard of defamatory meaning. The Court made its final ruling on the jury instructions, and the parties made their objections on the record on May 27, 1993. At that time, plaintiff stated an objection to the instructions relating to awareness of defamatory meaning. However, he did not make any mention of a standard of reckless disregard, nor did he focus his remarks or his argument on the reckless disregard standard. This sequence of events, taken together, indicates that plaintiff waived his objection to the failure to give the reckless disregard instruction with respect to awareness of defamatory meaning. This element was not the focus of argument or discussion, and plaintiff did not vigorously press for this instruction. Indeed, plaintiff did not even make an argument about this standard in the post-trial phase until his reply brief. Plaintiff argues that by submitting his written argument, he had done all that he could. He states “it is unclear what further steps defendant believes plaintiff should have taken.” However, plaintiff could have more vigorously pressed the issue of reckless disregard when it was clear that the Court intended to give the instruction. The Court does not believe that “it was plain that a further objection would be unavailing,” Brown v. Avemco, 603 F.2d at 1370. Plaintiff also argues that his special verdict form did not contain the recklessness standard because “disregarding the Court’s ruling on the proper instruction would have provided no benefit to anyone, and would have simply insured that plaintiffs proposed questions would not be adopted by the Court.” But this argument is belied by the fact that plaintiff did “disregard” the Court’s rulings on the jury instructions and continued to advocate for alternate formulations in his proposed special verdict form. For example, question 5 of plaintiffs proposed special verdict form asked the jury to determine whether Malcolm was “acting as an employee or agent of the New Yorker” at a time when the Court had already determined that agency was not a basis for liability. Thus, while it is a close call, the Court finds that plaintiff waived his argument on this issue. b. Reckless Disregard Because the waiver question is a close one, the Court will assume for the sake of discussion that plaintiff did not waive his argument on this element, and will consider the contention that the jury should have been instructed that liability could be established by a showing of reckless disregard of defamatory meaning. While plaintiff now argues that the jury should have been so instructed, the New Yorker argues that there is no reason to have such a requirement, and that the Constitution requires actual awareness. Before addressing whether awareness of defamatory meaning can be established by reckless disregard, it is necessary to set forth the relevant meaning of reckless disregard. Generally, the word “reckless” describes conduct which is at essence, negligent, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended.... The usual meaning assigned to “reckless” ... is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied (footnotes omitted). W. Prosser and W. Keeton, Handbook of the Law of Torts, § 84 at 213 (5th Ed.1984). However, recklessness does not denote the same objective standard in the constitutional context. Rather, the libel defendant’s conduct must be viewed subjectively. Newton v. National Broadcasting Co., 930 F.2d at 668-69. As the Supreme Court stated, A “reckless disregard” for the truth, ... requires more than a departure from reasonably prudent conduct. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. The standard is a subjective one— there must be sufficient evidence to permit the conclusion that the defendant actually had a high degree of awareness of probable falsity. As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989), as quoted in Masson v. New Yorker, 960 F.2d at 899. Likewise, in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court clearly set forth the appropriate standard for a finding of reckless disregard in the Constitutional context. The Court held, [R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publication with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. Id. at 731, 88 S.Ct. at 1325. Thus, in the constitutional context, the question becomes whether it makes sense to speak of reckless disregard of defamatory meaning. Awareness of defamatory meaning requires the defendant to have the subjective perception that a statement communicates or could communicate a meaning that injures plaintiffs reputation or otherwise defames him. Newton, 930 F.2d at 680. It would not be sufficient merely to say that a defendant should have perceived a defamatory meaning, or that a reasonably prudent person would have done so. See Harte-Hanks v. Connaughton, 491 U.S. at 688, 109 S.Ct. at 2696; St. Amant v. Thompson, 390 U.S. at 731, 88 S.Ct. at 1325. Constitutionally, in order to ensure that no blameless person be held liable, plaintiff must show that the defendant was actually and subjectively aware of the defamatory meaning or potentially defamatory meaning. See Newton, 930 F.2d at 680. In some ways, it is difficult to understand what reckless disregard of an awareness of defamatory meaning would mean in this context. The defendant will either have the perception that a statement is defamatory or could be defamatory, or will not have that perception. However, the Court can imagine a situation in which it would be meaningful to speak of reckless disregard of awareness of defamatory meaning. By analogy to the reckless disregard standard in the falsity arena, it may be that a defendant may subjectively be aware that certain words could possibly communicate a defamatory meaning, and yet choose to ignore that possibility. Just as a defendant may have a subjective awareness of probable falsity, a defendant may have a subjective awareness of probable defamatory meaning. And just as a defendant may act in reckless disregard of his or her perception of probable falsity, a defendant may act in reckless disregard of defamatory meaning by failing to explore whether such a meaning is communicated. It would not be enough to show that a reasonably prudent person would have understood that defamatory meaning. When plaintiff argues for a reckless disregard standard, he is really arguing about the credibility of a defendant who says that he or she did not perceive a defamatory meaning. Plaintiff is actually seeking a standard by which a defendant could be held liable if he or she should have known of a defamatory meaning. Given such a standard, a plaintiff could argue that no reasonable person would have failed to perceive the defamatory meaning, and that a defendant is lying when he or she claims not to have subjectively perceived the defamatory meaning. However, the Supreme Court has held since New York Times v. Sullivan that the test is the defendant’s subjective state of mind. Thus, while plaintiff may argue that a reasonable person would have perceived the defamatory meaning, the reasonable person standard may not be a basis for liability. See Harte-Hanks v. Connaughton, 491 U.S. at 688, 109 S.Ct. at 2696; St. Amant v. Thompson, 390 U.S. at 731, 88 S.Ct. at 1325. Plaintiff also argues that when a defendant denies that he or she was aware of a defamatory meaning, defamatory meaning can never be proven. This argument, apparently based on the statements in Bose v. Consumers Union, 466 U.S. at 512, 104 S.Ct. at 1965, and Newton v. National Broadcasting Co., 930 F.2d at 671, is a red herring. In Bose, the Supreme Court stated, “[w]hen the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion.” Bose, 466 U.S. at 512, 104 S.Ct. at 1965. In Newton, the court stated, “[a] determination of actual malice cannot be predicated on the factfinder’s negative assessment of the speaker’s credibility at trial. Although discredited testimony ‘does not rebut any inference of actual malice that the record otherwise supports, ... it is equally clear that it does not constitute clear and convincing evidence of actual malice.’ ” Newton, 930 F.2d at 671, citing Bose, 466 U.S. at 512, 104 S.Ct. at 1965. However, this is merely a statement about the amount of proof that is required. Plaintiff must prove awareness of defamatory meaning in the same way that he must prove awareness of falsity — that is, by direct and circumstantial evidence that meets the standard of proof. In sum, then, the Court concludes that the better course may have been to instruct the jury that plaintiff could establish the element of awareness of defamatory meaning by showing the defendants acted in reckless disregard of defamatory meaning. However, plaintiff waived this argument and cannot urge it here. Nonetheless, assuming solely for the sake of argument that plaintiff did not waive this contention, the Court will next consider the evidence presented against the New Yorker to determine if any harm resulted from the failure to instruct on reckless disregard. 3. Evidence of the New Yorker’s Reckless Disregard of Defamatory Meaning The New Yorker contends that even if the jury should have been instructed that reckless disregard of defamatory meaning was sufficient to impose liability, any error was harmless. The New Yorker argues that no evidence was presented supporting a finding of recklessness. Plaintiff asserts that all of the evidence regarding reckless disregard of falsity bears on the issue .of reckless disregard of defamatory meaning. The first question is the relevance of evidence regarding falsity. Falsity and defamatory meaning are analytically separate. A statement may be false, and a publisher may act with reckless disregard as to truth or falsity. However, if the statement is not defamatory, no liability may attach. Not all false statements are defamatory, and not all defamatory statements are false. Thus, evidence of falsity is not necessarily evidence of awareness of defamatory meaning. However, if a defendant knows a statement is false, or acts in reckless disregard of falsity, and the defendant perceives a defamatory meaning or the possibility that a defamatory meaning could be communicated, liability should follow. But if the statement is capable of a defamatory meaning of which the defendant is unaware, liability should not attach. Newton, 930 F.2d at 680. In reviewing the evidence, the Court finds that plaintiff presented no evidence to establish that the New Yorker, through its employees, acted with reckless disregard as to the defamatory meaning of the three of the five quotations. In considering the relevant quotations of “I don’t know why I put it in,” “greatest analyst who ever lived,” and “intellectual gigolo,” the Court will review the evidence presented against the New Yorker. The following New Yorker employees testified: Bots-ford, the editor of the piece, Shawn, the editor-in-chief, Franklin, the fact-checker, and Joseph Cooper, legal counsel to the New Yorker. Botsford was asked about his practice regarding defamatory material as an editor at the New Yorker. The following exchange occurred between Botsford and counsel for plaintiff: Mr. Morgan: Well, let me ask you: If you review an article and you see something that you think might be defamatory, you just ignore it then? Mr. Botsford: No, I mark it. But I’m not a lawyer, you know. If it’s something that really jumps out and socks you in the eye, even I can see it’s libelous, or I think it is, I mark it and sometimes write in the text, I write in libel with a query just so the libel lawyer can’t possibly miss it, and expect to hear from him. Botsford further testified that Mr. Green-stein, the New Yorker’s libel lawyer, marked the phrase “sex, women, fun” to indicate that he recommended deleting it. However, there was no evidence that any other phrase was marked as libelous or potentially libelous. When asked about his perception of the phrase “intellectual gigolo,” Botsford testified, “[i]t didn’t strike me as a bit of libel.” He further testified that he did not consider that statement “something maybe we better cheek.” As for the “greatest analyst” quotation and the “I don’t know why I put it in” quotation, Botsford was not asked if he considered those quotations to be defamatory. Nor did Botsford indicate that he considered those quotations to communicate or to potentially communicate any defamatory meaning. Additionally, Botsford testified that he thought plaintiff would like the piece. William Shawn gave no testimony regarding the “sex, women fun” quotation or the “intellectual gigolo” quotation. However, he was questioned at some length about the “I don’t know why I put it in” quotation and the “greatest analyst” quotation. When asked about the “I don’t know why I put it in” quotation, Shawn testified that if plaintiff did not say the words attributed to him, he would disapprove. However, he further testified, “Intention is very important here. I don’t think it was done — it was done for some literary reason that I don’t know, and I can’t imagine that it would harm Mr. Masson in any way or that he would mind it, but I don’t know.” Shawn Depo. at 32:16-20. Shawn stated, I would say that those words should not have been put in. I would think it is a change of tone or something. No harm is intended by it, but I would not be for putting it in. I say that it should not have been put in.... I think it is changing the meaning because he didn’t say it. Shawn Depo. at 35:5-13. Shawn nowhere testified that he considered the change damaging to plaintiff or otherwise defamatory. Moreover, Shawn was asked to interpret plaintiffs words on tape, in which plaintiff said, “I really believe it” rather than “I don’t know why I put it in.” Shawn testified that his understanding of those words was that plaintiff really believed that his statement that psychoanalysis is sterile would offend psychoanalysts, not that he really believed that psychoanalysis was sterile. Id. at 32:21-34:8. With respect to the “greatest analyst who ever lived” quotation, Shawn was asked, “If you were to listen to the tapes and read the transcripts and see that Mr. Masson had consistently said just the opposite of what is in that quote that was not on the tape, is it your testimony that you would still believe Janet Malcolm?” Shawn Depo. 52:6-11. Shawn replied, It would make me very nervous, but if I saw — if I heard it on the tape or saw in the transcript that he said just the opposite, and if what you are telling me now is correct, I would certainly be made uneasy. That would be pretty — that would be — no matter how much I trust Janet Malcolm, I might be made very nervous and say, ‘Lord, what has happened here? He said the opposite.’ I would worry.... I would say that if it were done by a responsible journalist, it would be a lapse into irresponsibility. I couldn’t justify it. Shawn Depo. 52:11-53:7. However, this testimony refers to what Shawn would feel about falsity if he were aware that Malcolm’s piece did not reflect what was on the tapes. Shawn never testified that prior to publication, his attention was drawn to that quotation, that he ever considered the quotation-defamatory, or that he was ever aware of a defamatory meaning attached to or communicated by that quotation. Moreover, he did not testify that he considered the quotation defamatory at the time of his testimony. Neither Nancy Franklin nor Joseph Cooper gave evidence indicating that they were aware of the defamatory meanings complained of, or entertained any perception of defamatory meaning in the relevant quotations. There was no evidence that Botsford or any other employee of the New Yorker saw any other quotation as libelous during the editorial process. And while plaintiffs then-attorney called the New Yorker before the second part of the series was distributed, there was no evidence that he drew the New Yorker’s attention to any false or defamatory quotations. The Court’s review of the evidence indicates that, as to the three remaining quotations, plaintiff put on no evidence that would support a finding that the New Yorker acted with awareness of defamatory meaning or reckless disregard of defamatory meaning, regardless of whether the appropriate standard of proof is proof by a preponderance of the evidence or proof by clear and convincing evidence. In the absence of evidence of reckless disregard of defamatory meaning, any failure to instruct is harmless. Fed.R.Civ.P. 61, Peterson v. Mountain States Telephone & Telegraph Co., 349 F.2d 934, 936-38 (9th Cir.1965); Sanderson v. Chapman, 487 F.2d 264, 266-67 (9th Cir.1973). The Court thus finds that plaintiff waived his argument on reckless disregard. But even if he did not waive the argument, he presented no evidence that would support a jury finding in his favor. Therefore, plaintiffs motion for a new trial against the New Yorker on the grounds of an erroneous instruction regarding reckless disregard of awareness of defamatory meaning is denied. C. Malcolm’s Employment Status Plaintiffs next argument turns on Janet Malcolm’s employment status. The jury was instructed that in determining whether Malcolm was an employee of the New Yorker or an independent contractor, [T]he principal question is whether the New Yorker had the right to control both the result to be accomplished and the manner and means by which the result is accomplished regardless of whether [it] exercised that right. Controlling the ‘manner and means’ by which the result is accomplished requires involvement in the details and the process of the work. Jury Instructions at p. 32