Full opinion text
ALARCON, Circuit Judge: In this libel action, plaintiff-appellant Jeffrey M. Masson appeals from the order of the district court granting summary judgment to defendants-appellees The New Yorker Magazine, Inc. ("The New Yorker”), Alfred A. Knopf, Inc. (“Knopf”), and Janet Malcolm. We affirm. I. In 1983, Janet Malcolm published a two-part article in The New Yorker magazine concerning the termination of psychoanalyst Jeffrey M. Masson from his position as Projects Director of the Sigmund Freud Archives (Archives). The article, subsequently reprinted in book form by publisher Knopf, was largely based upon Malcolm’s tape-recorded interviews with Mas-son. In the article, Malcolm described the struggle between Masson and other board members of the Archives, notably Dr. Kurt Eissler and Dr. Anna Freud, over Sigmund Freud’s abandonment of the “seduction theory” — a hypothesis that assumes that certain mental illnesses originate in sexual abuse during childhood. Malcolm discussed Masson’s claim that his contract with the Archives was terminated because he “went public” with his views that Freud abandoned the seduction theory simply to further his career and placate his colleagues. On November 29, 1984, Masson filed this diversity action in the district court against Malcolm, The New Yorker, and Knopf. Masson contended that the defendants libeled him and placed him in a false light in violation of Cal.Civ.Code § 45 (West 1982). Masson contended that Malcolm fabricated words attributed to him within quotations marks, and misleadingly edited his statements to make him appear “unscholarly, irresponsible, vain, [and] lacking impersonal [sic] honesty and moral integrity.” He also charged that The New Yorker and Knopf knew of Malcolm’s misconduct prior to publication of the article and book. Each of the defendants moved for summary judgment. The district court granted these motions on the ground that Masson had failed to establish actual malice. 686 F.Supp. 1396. The district court concluded that “[n]o clear and convincing evidence exists that would justify a finding that ... [Malcolm, The New Yorker, or Knopf] entertained serious doubts about the truth of the disputed passages.” II. “A grant of summary judgment is reviewed de novo. Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c).” Coverdell v. Department of Social & Health Serv., 834 F.2d 758, 761 (9th Cir.1987) (citation omitted). The standard governing summary judgment in the district courts in libel actions brought by public figures was recently described by the Supreme Court in Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Where the factual dispute concerns actual malice ..., the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding ... that the plaintiff has shown actual malice by clear and convincing evidence_” Id. at 255-56, 106 S.Ct. at 2514. III. A. “Fictionalized” Quotations 1. Legal Framework Masson admits that he is a public figure and that he was constitutionally required to prove that Malcolm was motivated by actual malice. He contends he presented sufficient evidence of actual malice to defeat Malcolm’s summary judgment motion. He argues that a jury could find actual malice by clear and convincing evidence based solely on the evidence he presented showing that Malcolm had deliberately “fabri-cat[ed] quotations ascribed to him.” As evidence of such deliberate fabrication, Masson presented evidence that the several quotations attributed to him did not appear in the tape recordings of his conversations with Malcolm, that Malcolm herself had altered quotations, and that he had alerted staff at The New Yorker that the quotations had been altered prior to publication. For the purpose of this appeal, we assume the quotations were deliberately altered. Neither the Supreme Court, nor this circuit, has had occasion to address the question whether a finding of malice may hinge upon evidence showing that a defamatory statement attributed to a person by using quotation marks does not contain his or her exact words. This question, however, has been addressed by several federal and state appellate courts. In Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446 (3rd Cir.1987), the record showed that the Mayor of Elizabeth, New Jersey, in discussing his city’s problems with litter, stated: You have a lot of new people moving into the City of Elizabeth, some coming from foreign lands where abject poverty was something they lived with everyday and they have not yet been assimilated into our type of society, and it will take a great deal of time for some of them to respect the rights and the properties of other people, and above all, to respect a city that offers them a home in what I consider to be a wholesome environment. Id. at 448. A Spanish-language newspaper summarized these comments in a headline which, when translated into English, read, “Elizabeth Mayor on the Attack: Calls Hispanics ‘Pigs.’ ” Id. The Mayor sued the newspaper for libel. He argued that the newspaper, “by enclosing ‘cerdos’ [‘pigs’] in single quotation marks, purported to proclaim that the may- or had in fact used the word ‘pigs’ in discussing the litter problem.” Id. at 450. He contended that the jury could find that the newspaper acted maliciously solely on the basis of evidence demonstrating that the “pigs” quote was fictionalized. The district court in Dunn granted summary judgment to the newspaper finding the mayor “had failed to present clear and convincing evidence that the newspaper published the headline with actual malice.” Id. at 449. The Third Circuit agreed. The Third Circuit held that “the headline was a rational interpretation of remarks that bristled with ambiguities.” Id. at 452. “[W]e are convinced that the word [pigs] was a fair, albeit inadequate, translation of the relatively new additions to the American vocabulary of the words ‘litter,’ ‘litterer,’ or ‘litterbug’.... ” Id. In Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977), the evidence showed that the author of a book published in Spanish quoted author Ernest Hemingway as describing the public figure plaintiff as “dirty and a terrible ass-licker. There’s something phony about him. I wouldn’t sleep in the same room with him.” Id. at 914. The publisher of the English-language edition of this book “toned down” this quotation, id. at 912; it quoted Hemingway as stating: “I don’t really trust him [the plaintiff].... ” Id. The plaintiff sued for libel contending, inter alia, that the evidence it presented showing that the publisher “knowingly published a bowdlerized version of Hemingway’s alleged statement” was sufficient to establish that the publisher acted maliciously. Id. at 914. The Second Circuit concluded in Hotchner that “[i]t is true that in transforming Hemingway’s words to the much milder T don't trust him,’ ... [the publisher] was fictionalizing to some extent. However, the change did not increase the defamatory impact or alter the substantive content of Hemingway’s statement....” Id. Accordingly, “there was no evidence from which the jury might reasonably have found that the defendant published the alleged libels with knowledge of falsity or reckless disregard for truth.” Id. In Carson v. Allied News Co., 529 F.2d 206 (7th Cir.1976), a newspaper reporter wrote an article describing “in copious detail the supposed struggle between [Johnny] Carson and ... NBC executives wherein Carson was seeking to move the [Tonight] show [from New York to Hollywood] and NBC was resisting the move.” Id. at 212. “The article contains supposed quotations by Carson to the executives and their responses and reactions.” Id. The plaintiff in Carson presented evidence showing that the reporter admitted he had “completely fabricated” the quotations attributed to the plaintiff. Id. Carson argued that malice could be inferred solely on the basis of this evidence. The district court disagreed and granted summary judgment to the defendants. Id. at 208. In reversing the district court’s order, the Seventh Circuit commented as follows: In the catalogue of responsibilities of journalists ... must be a canon that a journalist does not invent quotations and attribute them to actual persons. If a writer can sit down in the quiet of his cubicle and create conversations as ‘a logical extension of what must have gone on’ and dispense this as news, it is difficult to perceive what First Amendment protection such fiction can claim.... Because of ... the wholly imagined but supposedly precisely quoted conversations regarding the purported struggle preceding the westward move of the Tonight Show, the plaintiffs are entitled to a jury’s determination of whether actual malice existed. Id. at 213. In Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29, cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979), disapproved on other grounds, McCoy, 42 Cal.3d 835, at 846 n. 9, 727 P.2d 711, 231 Cal.Rptr. 518, an author, in an alleged novel, quoted an allegedly fictional psychiatrist as demanding, in a profane and insensitive manner, that a patient “drag” his wife to a “nude marathon.” Id. 92 Cal.App.3d at 70-71, 155 Cal.Rptr. 29. The plaintiff, a psychologist who is a public figure, sued for libel claiming that book was actually about him, and that the defamatory quotations attributed to him were fictionalized. The plaintiff produced a tape recording of a therapy session which the author attended. The tape disclosed that the psychologist had merely suggested, in a non-profane and sensitive manner, that a patient bring his wife to a nude marathon. Id. The jury found that the book was not fiction, that the quotations attributed to the psychologist were false and defamatory, and that the defendant published the quotations with actual malice. The defendant appealed, claiming, inter alia, that clear and convincing evidence did not support the jury’s finding of malice. Id. at 72, 155 Cal.Rptr. 29. The California Court of Appeals disagreed and affirmed. The court’s holding is contained in the following passage: [The defendant’s] reckless disregard for the truth was apparent from her knowledge of the truth of what transpired at the encounter, and the literary portrayals of that encounter[.] Since she attended sessions, there can be no suggestion that she did not know the true facts. Since ‘actual malice’ concentrates solely on defendants’ attitude toward the truth or falsity of the material published, and not on malicious motives, certainly the defendant ... was in a position to know the truth or falsity of her own material, and the jury was entitled to find that her publication was in reckless disregard of that truth or with actual knowledge of falsity. Id. at 72-73, 155 Cal.Rptr. 29 (citations omitted) (footnotes omitted). The state of the current law governing the defamatory nature of statements ostensibly ascribed to another person by the use of quotation marks can be summarized as follows: A factfinder may infer actual malice from a fabricated quotation when the language attributed to the plaintiff is wholly the product of the author's imagination. Carson, 529 F.2d at 213. An author may, however, under certain circumstances, fictionalize quotations “to some extent.” Hotchner, 551 F.2d at 914; but see Bindrim, 92 Cal.App.3d at 70, 155 Cal.Rptr. at 34 (an author’s privilege to alter quotations is not unlimited). Malice will not be inferred from evidence showing that the quoted language does not contain the exact words used by the plaintiff provided that the fabricated quotations are either “rational interpretations” of ambiguous remarks made by the public figure, Dunn, 833 F.2d at 452; cf. Bose Corporation v. Consumers Union, 466 U.S. 485, 512-13, 104 S.Ct. 1949, 1965-66, 80 L.Ed.2d 502 (1984) (malice may not be inferred from inaccurate language chosen to describe an event where the description is “ ‘one of a number of possible rational interpretations’ of an event ‘that bristled with ambiguities’ ” (quoting Time, Inc. v. Pape, 401 U.S. 279, 290, 91 S.Ct. 633, 639, 28 L.Ed.2d 45 (1971)), or do not “alter the substantive content” of unambiguous remarks actually made by the public figure, Hotchner, 551 F.2d at 914. With these principles in mind, we turn to the question whether actual malice can be inferred from any of the quotations attributed to Masson. 2. The Challenged Quotations a. “It Sounded Better” Malcolm quoted Masson as stating that he changed his middle name from Lloyd to Moussaieff because “it sounded better.” This statement does not appear in tape-recorded interviews. On the tape recordings, Masson states that he changed his middle name to Moussaieff because, inter alia, he “just liked it.” The district court stated that it could “see little difference between Masson’s own words and those attributed to him by Malcolm.” Accordingly, the district court held that the evidence Masson presented showing a discrepancy between his statements on the tape and those attributed to him in the article was “not sufficient to raise a triable question of fact on the issue of actual malice.” We agree with the district court’s observation. We cannot perceive any substantive difference between the phrases “it sounded better” and “[I] just liked it.” Thus, although Malcolm did not quote Mas-son verbatum, the words attributed to him did not alter the substantive content of his statement. The district court did not err in granting summary judgment against Mas-son concerning the words “it sounded better.” b. “Intellectual Gigolo ” Malcolm quotes Masson as stating, in discussing an affair with a graduate student; She [the graduate student] said, “Well, it is very nice sleeping with you in your room, but you’re the kind of person who should never leave the room — you’re just a social embarrassment anywhere else, though you do fine in your own room.” And, you know, in their way, if not in so many words, Eissler ■ and Anna Freud told me the same thing. They like me well enough “in my own room.” They loved to hear from me what creeps and dolts analysts are. I was like an intellectual gigolo — you get your pleasure from him, but you don’t take him out in public. ” (emphasis added). The italicized portion of the above quote is not in the tape-recordings. It does appear, however, in Malcolm’s interview notes. Masson contended below that both the quotation and Malcolm’s notes were fabricated. The district court assumed for the purpose of disposing the summary judgment motion that Masson did not refer to himself as an intellectual gigolo. The district court noted, however, that the tape of this conversation contains the following comment: [Eissler and Anna Freud] felt, in a sense, I [Masson] was a private asset but a public liability. They like me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me. The court held that malice could not be inferred from the purported fabrication because Malcolm’s “use of the descriptive term 'intellectual gigolo’ was a rational interpretation of [these] ... comments.” The district court opined further that “[t]he descriptive term ‘intellectual gigolo,’ as used in this context, simply means that Masson’s views were privately entertaining, but publicly embarrassing to Freud and Eissler.” We believe that the district court accurately assessed Malcolm’s interpretation of Masson’s characterization of the views of Eissler and Anna Freud. While it may be true that Masson did not use the words “intellectual gigolo,” Malcolm’s interpretation did not alter the substantive content of Masson’s description of himself as a “private asset but a public liability” to Eissler and Anna Freud. The district court did not err in determining that Masson did not prove by clear and convincing evidence that Malcolm acted with malice in attributing the words “intellectual gigolo” to Masson. Moreover, the “intellectual gigolo” quotation is not defamatory. The dissent misreads the “intellectual gigolo” quotation interpreting it as containing Masson’s assessment of himself. According to Judge Kozinski, “[f]or an academic to refer to himself as an intellectual gigolo is such a devastating admission of professional dishonesty that a jury could well conclude that it libelous.” Dissent, at 1468. However, a fair reading of the quotation shows author Malcolm is portraying Masson as reporting Kurt Eissler’s and Anna Freud’s opinions about him. As such, it is difficult to perceive how the quotation is defamatory. Additionally, the allegedly fabricated “intellectual gigolo” quote is non-defamatory under the “incremental harm branch” of the “libel-proof” doctrine. See Herbert v. Lando, 781 F.2d 298, 310-11 (2nd Cir.), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 548 (1986). This doctrine measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactiona-ble remainder of the publication; if that “incremental harm” is determined to be nominal or nonexistent, the statements are dismissed as not actionable.” Id. (citing Simmons Ford, Inc. v. Consumers Union, 516 F.Supp. 742 (S.D.N.Y.1981)). In Herbert, the court held that two statements, which merely implied the same view and were simply an outgrowth of and subsidiary to statements on which it was held there could be no recovery, were not actionable even if the subsidiary statements were made with actual malice. Id. at 312. Given the general tenor of the article and the many provocative, bombastic statements indisputably made by Masson and quoted by Malcolm, the additional harm caused by the “intellectual gigolo” quote was nominal or nonexistent, rendering the defamation claim as to this quote non-actionable. c.“Moral Cowardice” Malcolm quoted Masson as stating that Freud’s “entire theory after he abandoned seduction was the product of moral cowardice.” The precise words used in this quotation do not appear in the tape-recorded interviews. The transcript of the taped conversations, however, contains the following statement. “I think ... [Freud] was a great and remarkable thinker but he was still a, a man who just lost his courage. He was a brilliant mind who didn’t have the courage to stick with things that he knew were true.” We agree that the district court’s conclusion that malice was not demonstrated by clear and convincing evidence by the purported fictionalization because Malcolm’s “use of the descriptive phrase ‘moral cowardice’ was a rational interpretation of Masson’s [acknowledged] comments.” Masson’s actual words show that he considered Freud to lack the courage of his convictions. In attributing the “moral cowardice” characterization of Sigmund Freud to Masson, Malcolm did not alter the substantive content of Masson’s taped statement. d.“Sex, Women, Fun" Malcolm quotes Masson as stating that if he had been allowed to move into Anna Freud’s house in London, the house not only would have been “a place of scholarship, but it would also have been a place of sex, women, fun.” This statement does not appear in the tape recordings. Instead, Masson stated during a taped interview in discussing the changes he would make to Freud’s home: “They’re going to be calling the police on me every, every time I give a party or something”; and that “I could have had some fun.” Masson also stated that: it would take an Act of Congress then [sic] get me out of Anna Freud’s house. But sooner or later, the, i — , there, there would have been, you know, just a rising, uh, tide of anger and resentment and people demanding my resignation. But the only person they could demand it of was me. And as long as I wanted to I could say, “Go to Hell.” The district court granted summary judgment to Malcolm on this claim because “the disputed passage was substantially true because the sting of the passage is the same as that of undisputed tape-recorded passages.” Masson’s taped comments show that he envisioned the Freud house as a site for wild parties. In discussing his personal life with Malcolm, he boasted of his sexual prowess. For example, he told Malcolm that he had slept with over 1,000 women before he became an analyst. Thus, the “sex, women, fun” quote is consistent with Masson’s description of his life style and conception of “fun.” The disputed quotation did not establish malice by clear and convincing evidence. e.“Greatest Analyst Who Ever Lived” Malcolm quotes Masson as predicting that after the release of his book analysts will say “after Freud, he’s [Masson’s] the greatest analyst who ever lived.” This quotation does not appear in the taped interviews. The tapes contain the following observations by Masson concerning his status as an analyst: “for better or for worse, analysis stands or falls with me now”; “it’s me and Freud against the rest of the analytic world_ Not so, it’s me. It’s me alone”; and “[I] could single-handedly bring down the business [of Freudian psychology].” The district court held “[i]n light of the many egotistical and boastful statements that Masson made in tape-recorded comments ... plaintiff has not demonstrated clear and convincing evidence from which a reasonable jury could conclude that Malcolm entertained serious doubts about the accuracy of the passage.” We agree with the district court’s construction of the words attributed to Mas-son. The purportedly fictionalized quotation actually reflects the substance of Mas-son’s self-appraisal. f. “Don’t Know Why I Put It In” Masson told Malcolm that he delivered a paper at an analyst’s convention in which he criticized Freud for the alleged “sterility of psychoanalysis.” Malcolm quoted Mas-son as stating to him: “That remark about the sterility of psychoanalysis was something I tacked on at the last minute, and it was totally gratuitous. I don’t know why I put it in.” This quotation does not appear in the tape recordings. However, Masson did state during a taped interview that he thought “the last sentence [of the paper blaming Freud for the sterility of psychology] was ... [a] possibly gratuitously offensive way to end a paper to a group of analysts.” He also stated that he does “not know why psychoanalysis is sterile today.” The district court held that “[t]he passage as written is a rational interpretation of Masson’s comments, including his characterization of the ... [sterility remark] as a gratuitously offensive way to end the paper.” Our independent review of this claim compels us to reach the same conclusion. The district court correctly concluded that “[n]o reasonable juror could find that this passage provides clear and convincing evidence that Malcolm entertained serious doubts as to the truth of the statement.” The words attributed to Masson did not alter the substantive content of his explanation of his evaluation of critical comments he selected to conclude his remarks to an audience of analysts. g. The Schreber Case Masson’s next two claims relate to the discussion in the article about the Schreber case. Daniel Schreber was an Austrian jurist who was institutionalized at the turn of this century for mental illness. Schre-ber wrote a book detailing his various delusions. He explained that he had delusions concerning a “compression-of-the-chest,” and that Paul Flechsig, his psychiatrist, wanted to castrate him. Sigmund Freud conducted a case study on Schreber based on this book. This research formed the basis of Freud’s theory on homosexuality. In the case study, Freud treated Schreber’s delusions as products of fantasy. In the 1950’s, a well-known analyst named William Niederland investigated Freud’s case study of Schreber. He discovered that Schreber’s delusions were not entirely fantastical. Niederland discovered that Schreber’s father was a tyrant. Schreber’s “compression-of-the chest” delusion derived from his father’s use of an invention called the “straightener” on him. This device compressed the chest with iron bars in a supposed effort to improve posture. Moreover, Niederland discovered that Schreber’s psychiatrist performed experimental castrations on certain patients. Masson also investigated Freud’s case study of the Schreber case. Masson found a letter Freud had written prior to the publication of the case study which showed that he knew that Schreber’s father was a tyrant. Masson also found an article among Freud’s papers written by Flechsig describing his experimental castrations of hysterical and obsessional patients. Mas-son determined that Freud received a copy of this article prior to the publication of his case study on Schreber. 1. “My Discovery” In her publication, Malcolm quoted Mas-son as stating with respect to Freud’s case study on Schreber: It was the same thing with my discovery about the Schreber case. That was even more appalling. I found an 1884 article in Freud’s library written by Paul Flech-sig, Schreber’s psychiatrist, which he [Flechsig] had personally sent to Freud; reporting that he performed castration experiments on hysterical and obsessional patients in his asylum. This means that when Freud wrote his essay on Schreber he knew that castrations had taken place in the asylum where Schre-ber was held, but he still could write that Schreber suffered from the delusion that the great Paul Flechsig wanted to castrate him. The words “my discovery about the Schreber case” do not appear in the tape recordings. In a taped session, however, Masson describes Niederland’s discovery about Schreber as follows: I went a step beyond Niederland, but it was important.... [I discovered that] Freud has ... [Flechsig’s] article [about experimental castrations] in off-print form in his library! [The article was sent to Freud] [f]rom Flechsig. So Freud knew when he was writing the Schreber case that Flechsig had performed castration!” Masson contends that Malcolm fictionalized this quotation to make it appear that he was claiming credit for Niederland’s initial discovery that Flechsig performed castrations. Masson notes that in the tape-recorded interview he emphasized that Nied-erland made this initial discovery and he had only taken it one step further. The district court granted summary judgment to Malcolm with respect to this passage because it found that the “article makes clear the fact that the discovery Masson was claiming was that Flechsig had sent Freud the article and the article was in Freud’s library.” The district court held that “[n]o reasonable juror could find by clear and convincing evidence that Malcolm entertained serious doubts about the truth” of this passage, given the near identity between Masson’s comments on tape and those attributed to him in the article. The district court correctly analyzed this issue. The quotation attributed to Masson does not alter the substance of Masson's comments about his discovery of the Fles-chig paper on castration experiments. 2. “Eissler Would Have Admitted I Was Right” Malcolm quotes Masson as stating that “[Dr. Kurt] Eissler would have admitted ... [he] [Masson] was right” in his belief that Freud knew Schreber’s concerns about castration had some basis in reality prior to his publication of the Schreber case study. This statement is not on any tape of Malcolm’s conversations with Masson. The following conversation, however, does appear on tape: MASSON: [Had Freud been honest about the Schreber case, he would have said] I have here in my library an article by Paul Flechsig, in which he recommends castration. Now, you may wonder whether this had anything to do with ... Schreber’s delusions. My answer is: It did not. MALCOLM: Uh huh. MASSON: And it leaves the reader the opportunity to think about it by providing evidence he knew to be germane to the issue, but Freud doesn’t do that.... I even wrote in my Schreber paper when I — the one that I met with Eissler over, I said, “I cannot believe that Freud knew the works of ... [Schreber’s] father. I simply do not believe he knew them because if he did, he wouldn’t be able theoretically to ignore this and— MALCOLM: Yeah. MASSON: Now, I know that’s not true. MALCOLM: So what did Eissler say then? MASSON: He agrees with me, of course. The latter portion of this passage is ambiguous. It is difficult to discern whether Masson is claiming that Eissler “agrees” with Masson’s current belief that Freud knew that Flechsig performed castrations at the time he published his case study, or that Eissler “agrees” with the statement that Freud did not “know the works of the father” contained in Masson’s paper on Schreber which was written prior to the discovery of Fleehsig’s article among Freud’s papers.” The words ascribed to Masson that “Eis-sler would have admitted that I was right” were a rational interpretation of Masson's ambiguous remarks about Eissler’s reaction to his discoveries about the Schreber case. The district court did not err in granting summary judgment to Malcolm concerning the quoted language, h. “Denise Worries Too Much” Malcolm quoted Masson’s girlfriend Denise Cammell as complaining that Masson did not “feel the pain” that he had caused Dr. Eissler. Malcolm quotes Masson as responding, “Denise worries too much.” Masson contends that Malcolm fabricated this response. The tape shows that Mas-son responded to Denise’s complaint about his lack of feelings for Eissler by stating that he was not personally “close” to Eis-sler. The district court held Masson failed to present “clear and convincing evidence that Malcolm entertained serious doubts about the truth” of the allegedly fictionalized response. The response Masson made to Denise’s complaint, that he was not “close” to Eissler, can reasonably be read as non-responsive. The comment did not respond to Malcolm’s statement regarding Denise’s specific complaint about Masson’s lack of feelings. Moreover, Masson admits that he told Malcolm that his girlfriend worried too much. Thus, the purported fictionalization “Denise worries too much” did not constitute a substantive alteration of the response Masson claims he made. B. “Misleadingly Edited” Quotations 1. Applicable Principle Masson contends that Malcolm took several statements he made out of context. He contends that a reasonable jury could find actual malice on Malcolm’s part solely upon the evidence he presented showing that the article was edited misleadingly. The Supreme Court has provided guidelines to assist courts in determining when actual malice may be inferred from evidence showing misleading editing. In Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), the defendant magazine published an account of a report by the United States Civil Rights Commission. The Civil Rights Commission’s report detailed “the alleged facts in typical cases of police brutality,” under a the preface providing that while “[i]n no case has the Commission determined conclusively whether [police brutality occurred] ... the allegations appeared substantial enough to justify discussion.” Id. at 287, 91 S.Ct. at 638. One of the eases of brutality the report described was the “alleged” racially-motivated beating of an arrestee by a Chicago police officer named Pape. Id. at 281, 91 S.Ct. at 635. In its article about police brutality, the magazine set forth a detailed description of the beating inflicted upon the arrestee by Officer Pape. The magazine article failed to mention, however, that the Civil Rights Commission had prefaced its description of this beating with the proviso that it was describing mere allegations of police brutality. Id. at 281-82, 91 S.Ct. at 635. Pape sued claiming, inter alia, that actual malice on the part of the magazine could be inferred from its omission of the word “alleged” in the article. The Supreme Court disagreed. The Court held that the Civil Rights Commission’s prefatory remarks about “allegations” “may fairly be characterized as extravagantly ambiguous.” Id. at 287, 91 S.Ct. at 638. “[I]n context it was impossible to know whether the Commission was seeking to encourage belief or skepticism regarding the incidents about to be described.” Id. at 288, 91 S.Ct. at 638. In light of this ambiguity, the Court held: [The magazine’s] omission of the word “alleged” amounted to the adoption of one of á number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of “malice.... ” To permit the malice issue to go to the jury because of the omission of a work like “alleged,” despite the context of that word in the Commission Report ..., would be to impose a much stricter standard of liability on errors of interpretation or judgment than on errors of historic fact. Id. at 290, 91 S.Ct. at 639. We next consider whether, in light of the test set forth in Time, Inc. v. Pape, actual malice can be inferred from the passages which Masson contends were edited in a misleading manner. 2. The Challenged Quotations a. “Aren’t Too Many Interpretations Possible” Malcolm quotes Masson as stating that “[tjhere aren’t too many interpretations possible” of his discovery that Freud had knowledge that Flechsig performed castrations prior to the publication of the case study on Schreber. Masson complains that Malcolm took this statement out of context. He contends that he made this statement with reference to discoveries he had made showing that Freud abandoned the “seduction” theory for improper reasons. Masson’s “interpretations” comment appears in the following portion of the transcript of the taped interviews: MALCOLM: [Eissler seemed to believe Freud’s abandonment of] the seduction theory was, was correct. MASSON: Yeah but if, I mean if he had let me talk to him long enough about all the new material, he would’ve had to share more or less my point of view. MALCOLM: Um-hmm. You really think so? MASSON: Oh yeah. MASSON: But it, yeah, but I don’t think there are too many interpretations possible of this kind of material. You know it’s just overwhelming the amount of, of information that’s been suppressed and so on.... MALCOLM: Yeah, I see. MASSON: You know and I think Eissler would have admitted that. I think if I had said to him: “Look, you know, I’m not going to ever say this, but just between you and me—,” he would’ve said, “Yes, you’re right, but never, never tell the goyim.” (emphasis added). The district court held that “in light of the somewhat confusing references to ‘discoveries’ and ‘new material’ in the transcript, ... [Masson’s] statements ... could reasonably be seen as pertaining, at least in part, to ... [Masson’s] discovery about the Flechsig article.” The district court held that “[t]he published passage was a rational interpretation” of Masson’s taped comments. We have reached the same conclusion after our independent review of the taped conversation. It is unclear from the “interpretations” passage whether Mas-son’s was referring to his discovery about Freud’s possession of Flechsig’s article, or other discoveries by Masson that supported his belief that Freud improperly abandoned the seduction theory. Malcolm’s interpretation of Masson’s comment was rational. b. “He Had The Wrong Man” Malcolm quoted Masson as stating: [Eissler] ... was always putting moral pressure on me [to keep silent about my discoveries about Freud]. “Do you want to poison Anna Freud’s last days? Have you no heart? You’re going to kill the poor old woman.” I said to him, “What have I done? You’re doing it. You’re firing me. What am I supposed to do, be grateful to you?” “You could be silent about it. You could swallow it. I know it is painful for you. But you could just live with it in silence.” “Why should I do that?” “Because it is the honorable thing to do.” Well, he had the wrong man. Masson’s unedited remarks on the tape were as follows: [Eissler] ... was constantly putting various kinds of moral pressure on me, and, “Do you want to poison Anna Freud’s last days” “Have you no heart?” He called me up, “Have you no heart? Think of what she’s done for you, and you are now willing to do this to her.” I said, “What am I, What have I done? You’re doing it, you’re firing me. What am I supposed to do, thank you? Be grateful to you?” He said, “Well, you could never talk about it, you could be silent about it, you could swallow it. I know it’s painful for you, but just live with it in silence.” “Fuck you,” I said, “Why should I do that Why? You know, why should one do that?” Because it’s the honorable thing to do, and you will save face, and who knows, if you never speak about it and quietly and humbly accept our judgment, who knows in a few years if we don’t bring you back?” Well, he had the wrong man. (emphasis added). Masson contends that Malcolm purposefully deleted the portion emphasized above to make it appear that he admitted that he “was the wrong man” to ask to do something honorable. He contends that the unedited passage reveals that he said only that he was the wrong man to keep silent for selfish reasons — to keep his future job prospects open. Masson’s statement that he “was the wrong man” is ambiguous. It is unclear whether he was declaring that he was the “wrong man” to keep silent for selfish purposes, or the “wrong man” to ask to do something honorable. The statement Malcolm ascribed to Masson was a rational interpretation of his ambiguous remarks. IV. Masson contends that The New Yorker and Knopf are vicariously liable for Malcolm’s actions in allegedly libeling him and placing him in a false light. Because we have concluded that Masson failed to present evidence sufficient to support a reasonable jury finding that Malcolm acted maliciously, the district court did not err in holding that The New Yorker and Knopf cannot be held liable for publishing the article and book. V. The defendants contended in the district court that Masson’s complaint, and his opposition to their summary judgment motion, lacked a reasonable basis in both fact and law. They moved for attorneys fees and costs under Fed.R.Civ.P. 11 and Cal. Code Civ.P. § 1021.7 (West Supp.1988). Rule 11 provides that “the signature of an attorney or party [on a pleading, motion or other paper] constitutes a certificate by him ... that it is well grounded in fact and is warranted by existing law_” Cal. Code Civ.P. § 1021.7 provides that “in an action for libel or slander ..., the court may, in its discretion, award reasonable attorney’s fees to the defendant or defendants as part of the costs, upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause.” The district court did not issue explicit findings on the defendants’ requests for costs and attorneys fees under Rule 11 and section 1021.7. The court simply ruled that “each side to bear their own attorney’s fees and costs.” In their cross-appellants’ brief, the defendants contend that this court should remand this claim to the district court with directions that it make findings on their request for attorneys fees and costs. This court has apparently not yet decided whether district courts must make explicit findings on a defendant’s request for costs and attorneys fees under Rule 11. This issue, however, has been specifically addressed by the Fifth and Seventh and Tenth Circuits. The Fifth Circuit holds that findings are not required. See Thomas v. Capital Security Serv., 836 F.2d 866, 883 (5th Cir.1988) (en banc). The Seventh Circuit holds that findings are required unless “the motion for sanctions is foolish, or when the reasons for denying a colorable motion are apparent on the record.” Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1084 (7th Cir.1987), cert. dismissed, — U.S. -, 108 S.Ct. 1101, 99 L.Ed.2d 229 (1988); see Brown v. Federation of State Medical Boards of the United States, 830 F.2d 1429, 1438 (7th Cir.1987). The Tenth Circuit mandates findings where the sanctions award has the effect of a preclusion of access to the courts. Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986). Neither this court, nor the California courts, have decided the specific question whether trial courts must make explicit findings on requests for attorneys fees under section 1021.7. However, this court has held that district courts must make findings on requests for attorneys fees under Cal.Civ.Proc.Code § 1021.4, an attorney fees statute related to section 1021.7, in diversity actions arising under California law. Insurance Corp. of North America v. Moore, 783 F.2d 1326, 1328 (9th Cir.1986). We need not decide whether the district court must make explicit findings in response to a motion under Rule 11 and section 1021.7. It is uncontroverted that Malcolm fictionalized certain quotations and attributed them to Masson. Given these uncontroverted facts, the only relevant question with respect to the Rule 11 and section 1021.7 motions is one of law: Could “a plausible, good faith argument ... be made by a competent attorney” that actual malice could be inferred from the evidence Masson presented showing that the quotes were fictionalized. Zaldivar v. Los Angeles, 780 F.2d 823, 833 (9th Cir.1986). This legal issue can be decided by this court. Cf. Zuniga v. United Can Co., 812 F.2d 443, 452 (9th Cir.1987) (“[i]f the legal conclusions of the district court that the facts constitute a violation of ... Rule [11] is disputed, we review that legal conclusion de novo”). We believe Masson made a plausible, good faith argument that actual malice could be inferred from the evidence he presented demonstrating that quotations were fictionalized in the article. At the time of the filing of the complaint, the law in California and in this circuit was unclear whether actual malice can be inferred solely from proof that an author by using quotation marks ascribed to the plaintiff words that he did not speak. The district court did not err in refusing the defendants’ request for attorneys fees and costs under Rule 11 and section 1021.7. The defendants’ request for sanctions is denied. Masson’s post argument suggestion that we consider material not presented to the district court is denied. The district court’s order granting summary judgment to New Yorker is AFFIRMED. . The dissent argues this case is similar to Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123, 212 Cal.Rptr. 838 (1985). We disagree. First, Sel-leck is inapplicable because it involved only the question whether quotations attributed to Tom Selleck’s father, apparently a private figure, could have a defamatory impact. In reversing the trial court’s decision to grant a demurrer on the plaintiff's defamation claim, the court never discusses "actual malice”; in fact, the Selleck court assumes that the plaintiff was never interviewed and that the quotes were wholly fabricated. 166 Cal.App.3d at 1132, 212 Cal.Rptr. at 844. Even if one assumes that the court decided sub silentio that the plaintiff was a public figure and that he had made a sufficient showing of actual malice, Selleck is consistent with the Carson case discussed supra at 1454-55. . The dissent argues that the Dunn rationale applies only in situations involving translations from one language to another. Dissent, at 1471. We disagree. The problem in Dunn was not the translation of the Mayor's words but the summary of those remarks. The newspaper editors in Dunn were not attempting to translate a particular word for which there was no exact equivalent in Spanish; instead, they sought to "express the gist of the mayor’s remarks” by means of the fabricated quotation. 833 F.2d at 451. The problems created by summarization obviously are not unique to translation. . The dissent argues that Hotchner only stands for the proposition that malice will not be inferred from an altered quotation when the alteration does not increase the defamatory impact of the quotation. Dissent, at 1472. We disagree. The Second Circuit refused to infer malice in Hotchner not only because the alteration did not alter the defamatory impact of the quotation, but also because the alteration did not "alter the substantive content” of the quotation. Hotchner, 551 F.2d at 914. . Other portions of the taped interviews reveal that Masson repeatedly boasted of his ability to seduce or “charm” the senior analysts, including Kurt Eissler and Anna Freud. He told Malcolm, for example, that "I had managed to worm my way into the good graces of Eissler and Anna Freud and Muriel Gardner through charm and this had worked on them, and they had like fallen into a spell. I had mesmerized them_” On other occasions, Masson told Malcolm that Eissler "adored me,” and was “very easily taken in.” Although Masson argues that “intellectual gigolo” differs from his taped comments in that it has sexual connotations, it also appears that on at least one occasion Masson himself employed sexual metaphors to describe his and other young analysts' relationships with Eissler as "Suck stories. They’re great suckers and it’s a question of who can suck the most ... Oh God, did it go through it.” All of these undisputed statements tend to prove that Masson conceptualized his relationship with Eissler and Freud at least in part as an intimate, mysterious, and perhaps surreptitious diversion — not unlike that of a "gigolo." Although we cannot at this stage in the proceedings make credibility determinations or resolve conflicts in the evidence, we can and must evaluate how Masson’s actual malice evidence stacks up against the "clear and convincing” standard of proof. Masson indisputably made numerous statements which were the substantive equivalent of the "intellectual gigolo” quote Malcolm used; Masson’s only proof that he never said such a thing is his simple, albeit vehement, denial. This showing is simply insufficient to pass muster under the applicable standard of proof. . Although the Herbert court denied that it was applying the Simmons “incremental harm” doctrine, it recognized that the test was very possibly another variation of the “libel proof” doctrine.
KOZINSKI, Circuit Judge, dissenting. The majority and I part company on a simple but fundamental point: the meaning of quotations. As I see it, when a writer uses quotation marks in reporting what someone else has said, she is representing that those are the speaker’s own words or something very close to them. The majority views quotations much more amorphously: They are merely an extrapolation of the speaker’s words, as interpreted in light of his background and character. Under the majority’s approach, the resulting “quotation” may differ significantly in wording and content from what the speaker actually uttered, so long as the writer can argue with a straight face that it is a rational interpretation of what the speaker said. If the speaker is thereby made to sound stupid or arrogant, evil or insincere, the majority denies him a remedy. While courts have a grave responsibility under the first amendment to safeguard freedom of the press, the right to deliberately alter quotations is not, in my view, a concomitant of a free press. Neither the authorities on which the majority relies nor the applicable first amendment principles suggest otherwise. I must therefore respectfully dissent. I A. This is a case of libel. Plaintiff Jeffrey M. Masson gave an extended interview to defendant Janet Malcolm, who was writing a story about Masson’s stormy relationship with the Sigmund Freud Archives. All or substantial portions of that interview were tape-recorded. Masson now claims that Malcolm attributed to him a number of statements he never made and materially changed others so as to place him in a false and unfavorable light. He supports his claim with a detailed and articulate declaration; he also provides transcripts of the tapes and other collateral evidence, all of which seem to corroborate his claim. There are, to be sure, many disputed facts: Malcolm claims that Masson made the statements in question precisely as she quoted them, albeit during interview sessions that were not tape-recorded. But, as the majority recognizes, the dispute must be resolved in Masson’s favor in this appeal from a grant of summary judgment. We therefore start with the assumption that Malcolm altered Masson’s statements as he claims she did. Under the law of California, which we are bound to apply in this diversity case, attributing to Masson a statement he did not make can constitute libel. See Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123, 1129, 212 Cal.Rptr. 838, 844 (1985). Indeed, in Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29, cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979), disapproved on other grounds, McCoy v. Hearst Corp., 42 Cal.3d 835, 846 n. 9, 727 P.2d 711, 719 n. 9, 231 Cal.Rptr. 518, 525-26 n. 9 (1986), on which the majority relies, the court sustained a libel verdict based in part on misquotations, even though the story purported to be fictional and the dialogue was nominally attributed to a character bearing a name different from the plaintiff’s. Nor is there any dispute as to the plaintiff’s burden of proof. Masson readily concedes he is a public figure who must prove malice under New York Times, Inc. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This means that Mas-son cannot recover for inadvertent, careless or even negligent alterations of his quotes. He can only recover if he shows that defendants deliberately changed his words or misquoted him recklessly. Id. at 279-80, 84 S.Ct. at 725-26. Masson claims he can do this; he asks for the opportunity to present his proof to a jury. The majority holds, as a matter of law, that Masson cannot establish malice as to some of the challenged quotations because they did not alter the substance of his statements and, as to others, because they were rational interpretations of Masson’s own ambiguous remarks. Majority op. at 1455-56. While both parts of this test are troublesome, the second is particularly so. An unqualified quotation attributed to a third party is commonly understood to contain no interpretation; by using quotation marks the writer warrants that she- has interposed no editorial comment, has resolved no ambiguities, has added or detracted nothing of substance. As more fully discussed below, see 1473-78 infra, that is the prevailing view among journalists. It is also, I believe, the assumption made by most readers. Because quotations purport to come directly from the speaker — free of editorial comment by the writer — they can have a devastating rhetorical impact and thus carry a serious potential for harm. We need not speculate; the record contains clear evidence on the subject. For example, a review of Malcolm’s article in the Boston Globe by psychiatrist Robert Coles, a Harvard professor, contains the following appraisal of Masson, based on Malcolm’s work: Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: his own words reveal this psychological profile — a self-portrait offered to us through the efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic profession. Coles, Freudianism and Its Malcontents, Boston Globe, May 27, 1984, at 58, 60 (emphasis added). And again, in a review of Masson’s own book, reference is made to Malcolm’s description of him, and particularly to the words he supposedly uttered: ... Malcolm’s portrait of Masson is devastating: largely through his own words he emerges as a feverish jumble of vanity, self-destruction, childishness, and ruthlessness. Kirkus Reviews, Apr. 1, 1984, at 345 (emphasis added). As these reviews indicate, and as common sense suggests, readers give far greater weight to direct quotations than to descriptions or paraphrases by the author. This is because quotations allow readers to draw their own conclusions about the speaker’s character, motive, candor and lucidity. Experienced writers are well aware of this phenomenon and frequently use quotations as proof — raw data to enhance the credibility of the narrative — as if to say: “See here, don’t just take my word for it, he said it himself.” An article devoid of such factual anchors, one that consists entirely of the author’s own observations and conclusions, will generally leave readers dissatisfied and unpersuaded, as well as bored. Because quotations possess an immediacy and resulting credibility often lacking in ordinary narrative prose, minor changes in quoted language can have a major effect on how a speaker is perceived. A skilled writer can shade a speaker’s words in subtle ways that will color a reader’s perception far more effectively and permanently than if the writer paraphrases or otherwise discloses her editorial role. For example, if Malcolm tells us “Masson thinks he is the greatest analyst who ever lived,” we discount the statement somewhat, aware that it represents merely her own conclusion, filtered through her perception, biases and mode of expression. It is quite a different matter to read Masson as saying “I am the greatest analyst who ever lived.” This shows him to be not only arrogant and conceited, but a braggart to boot. By putting the phrase into Masson’s own mouth and concealing her role as interpreter and editor, Malcolm has caused Masson a serious injury and made it look like a self-inflicted wound. It is this concealment — the use of quotation marks to deceive the reader about the author’s editorial role — that libel law prohibits and the Constitution does not, in my opinion, protect. A close examination of this particular discrepancy, among a dozen or so of which Masson complains, shows the insidious way in which Malcolm is alleged to have manipulated Masson’s words to place him in an unfavorable light. Malcolm quotes Masson as saying, “They [analysts] will want me back, they will say that Masson is a great scholar, a major analyst — after Freud, he’s the greatest analyst who ever lived.” Malcolm, Annals of Scholarship: Trouble in the Archives — II, The New Yorker, Dec. 12, 1983 (Malcolm II), at 60, 118. Anyone reading this self-appraisal would be hard pressed to avoid the conclusion that Mas-son is an egomaniac. Masson denies making this statement and, for purposes of summary judgment, we must assume he never did. The district court nevertheless held that “[i]n light of the many egotistical and boastful statements that Masson made in tape-recorded comments ... plaintiff has not demonstrated clear and convincing evidence from which a reasonable jury could conclude that Malcolm entertained serious doubts about the accuracy of the passage.” Majority op. at 1459. The majority agrees, noting that “[t]he purportedly fictionalized quotation actually reflects the substance of Masson’s self-appraisal.” Id. at 1459. This rationale is explosive. W-hat the court is saying, in effect, is that if you make statements that could reasonably be construed as boastful or arrogant (or callous or stupid or reflecting any other trait of character or intellect) the reporter may attribute to you any other statement reflecting that same trait. The enormous sweep of this principle can best be appreciated by comparing what Masson actually said with what Malcolm attributed to him. Masson’s statements are materially different both in tone and content from what Malcolm reports him to have said; they are hardly the ravings of a lunatic. The majority, for example, relies on Masson’s statement that “for better or for worse, analysis stands or falls with me now.” Id. at 1459. Plucked out of context, this statement sounds like an egotistical self-appraisal of Masson’s pivotal status in the profession. Context, however, makes it clear that Masson was not describing his own abilities but the materials he claims to have discovered. Indeed, when Malcolm challenged him by saying “Well that’s a very grandiose thing to say,” Mas-son responded, “Yeah, but it’s got nothing to do with me. It’s got to do with the things I discovered.” Excerpt of Record (ER) at 128 (emphasis added). For Malcolm to have truncated Masson’s actual statement and quoted it out of context (“analysis stands or falls with me now”) would itself have violated professional standards. But using this and other snatches as yarn from which to weave a wholly different statement to be passed off as a quote from Masson is a power few self-respecting journalists arrogate to themselves. See 1473-78 infra. The majority also relies on Masson’s statement that “it’s me and Freud against the rest of the analytic world.... Not so, it’s me. It’s me alone.” Supplemental Excerpt of Record (SER) at 38-39. Again, freed from context, this snippet seems to support the majority’s conclusion that Mas-son thought himself the greatest analyst who ever lived. But context gives the statement a far different cast. Immediately before this paragraph, Masson says, “Talk to enough analysts and get them right down to those concrete issues and you watch how different it is from my position. It’s utterly the opposite and that’s finally what I realized, that I hold a position that no other analyst holds, including, alas, Freud.” Id. at 38 (emphasis added). When read against this background, Masson’s next statement, that “it’s me and Freud against the rest of the analytic world_ Not so, it’s me. It’s me alone,” sounds much less narcissistic: It’s clear he’s not talking about his preeminence in the profession, but about the fact that his position on a particular issue is shared by no one else. True, there is a healthy element of boasting in Masson’s statement; people often take pride in holding unpopular positions. But that is a far cry from asserting that others will see him as “the greatest analyst who ever lived.” At least, I respectfully submit, a jury could reasonably conclude that the two are materially different. Another example of how broadly the majority’s rationale sweeps is its willingness to approve Malcolm’s use of the loaded phrase “intellectual gigolo,” majority op. at 1456-58, when Masson denies having so described himself. Like “greatest analyst who ever lived,” “intellectual gigolo” is particularly damning because of its graphic imagery and the emotional impact it is likely to have on the reader. The majority is willing to say close enough, principally on the basis of Masson’s statement that Kurt Eissler and Anna Freud viewed him as a private asset but a public liability. They liked me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me. ER at 66 (emphasis added). The majority concludes that intellectual gigolo is a rational interpretation of these comments because “[t]he descriptive term ‘intellectual gigolo,’ as used in this context, simply means that Masson’s views were privately entertaining, but publicly embarrassing to Freud and Eissler.” Majority op. at 1457 (internal quotations omitted). To reach this conclusion, the majority must give Malcolm the benefit of every doubt. In the first place, the majority accepts the most benign interpretation of gigolo, “a professional dancing partner or male escort.” Webster’s Ninth New Collegiate Dictionary 517 (1984) (def