Interference (66 page)

However, we weren't just blowing smoke. During our investigation of the
Times
, we had obtained documentation of a personal relationship between Sulzberger and Edward J. DeBartolo Sr., the owner of the San Francisco Forty-Niners, who had been identified by the US Department of Justice—among other federal, state, and local law-enforcement agencies—as an organized-crime figure.
⁷

On January 31—just four days after the
Times
' response to our motion, which, in part, requested Sulzberger's deposition—Judge Penn suddenly sprang into action, ruling in favor of the
Times
and dismissing our case.

Penn embraced a narrow interpretation of
Milkovich
, viewing the term “sloppy journalism” as protected opinion while ignoring all of the provably false facts cited as supporting evidence for that term in Eskenazi's review.

My attorneys immediately filed our brief to the US Court of Appeals for the DC Circuit on May 19, 1993. Consistent with their earlier motions and briefs, the
Times
' attorneys concentrated their reply to our petition on the premise that the term “sloppy journalism” is a statement of opinion, building on Judge Penn's lower-court ruling.

At this point, I had my first and only argument with my lead counsel, Roger Simmons. Nearly every article written about our case against the
Times
had highlighted and even tried to limit the dispute to the use of the term “sloppy journalism,” in lieu of the actual provably false facts contained in the review—i.e., what I did and did not say about Los Angeles Rams owner Carroll Rosenbloom's death. I came to believe that as long as the “sloppy journalism” count remained in our complaint, the media would continue to portray me unjustly as a thin-skinned author with “a wounded ego,” and that the entire basis for our case would continue to be misunderstood, as well as misrepresented in the press and by the courts.

I asked Simmons to consider conceding the
Times
' point that the term “sloppy journalism” was, in fact, a statement of nondefamatory opinion, which would force the
Times
, the media, and the courts to start dealing with the specific errors in the review.

Although very concerned with the serious thrashing I was taking in the press, Simmons refused, arguing that Eskenazi's use of the term “sloppy journalism” had been based on the specific provably false facts contained in the review. Thus, Simmons reasoned, if Eskenazi's errors were defamatory, then the broad conclusion that summed them up—specifically, the term “sloppy journalism”—was defamatory, as well.

In the end, Simmons won our argument, persuading me that we had to continue to fight the battle over the term “sloppy journalism,” regardless of how much grief I was taking for it.

The US Court of Appeals

On September 14, 1993, Simmons stressed our now united point of view about the term “sloppy journalism” during the hard-fought oral arguments with the
Times
' attorneys before a three-judge panel of the US Court of Appeals in Washington.

Then, on February 18, 1994, after months of study and debate, the federal appellate court, agreeing with Simmons's arguments, shocked the world of journalism and overturned Judge Penn's lower-court ruling. Two of the most prominent First Amendment judges in the United States, Harry Edwards and Patricia Wald, voted in the majority. Abner Mikva, another respected First Amendment protectionist, dissented.

In his very strongly worded opinion, Judge Edwards stated:

Edwards went on to rule that four of the five statements of fact contained in the review—including Eskenazi's claim that my book “revives the discredited notion that Carroll Rosenbloom … met foul play”—could be meaningfully determined by a jury to be true or false.

However, Judge Edwards also insisted: “If the
Times
review had said nothing more than ‘Moldea's work is sloppy journalism,' this statement would be actionable because it is capable of defamatory meaning, and it reasonably can be understood to rest on provable, albeit unstated, defamatory facts.”

Although grateful for the decision, I shuddered when I first read it, because it appeared that Judge Edwards had taken the controversy over the term “sloppy journalism” to an extreme. From the outset, I knew that this ruling would invite the wrath of the media gods and possibly the justices of the United States Supreme Court. I now expected them to descend upon all of us, including the two brave judges who had supported me.

When reporters called for comment in the wake of the appellate decision, I told several of them, “We are about to see a demonstration of raw power in America coming at us like a rifle shot.”

All I had ever wanted was my day in court, and now suddenly, I was at the hub of a crisis over the First Amendment. In fact, after the appellate court's decision, my attorney proposed a settlement to the
Times
, which included an offer of a joint stipulation that the judges' ruling be mooted.

Predictably, the media—which knew nothing of our settlement offer, which the
Times
rejected—seized upon all of this, causing an onslaught of cataclysmic editorials and op-ed columns. Columnist James J. Kilpatrick railed against Judge Edwards's decision but admitted that he was thinking twice about “what I myself write about fat-headed federal judges.”

D. T. Max of the
New York Observer
, wrote: “Book review sections at newspapers and magazines around the country were frightened of what the
Moldea
case might mean in terms of their ability to conduct free and open inquiry in their pages, and a general call had gone out to newspaper editorial writers to alert the court that they would open a Pandora's box if their February opinion were allowed to stand.”

The response to this “general call” was as misleading as it was overwhelming. For instance, the
Boston Globe
, which is owned by the
New York Times
, published an editorial on April 18, stating: “If author Dan E. Moldea wins his libel suit against the
New York Times Book Review
, he loses, and so does every writer and editor in the country.” (This
Globe
editorial actually contained a fabricated quote, supposedly from me, which the newspaper later retracted.)

Washington Post
ombudsman Joann Byrd, who was equally clueless about this case, lamented on February 27: “People worry about the chilling effect of laws declaring that opinion pieces are not immune to libel suits. And we should. We are much less likely to get an honest appraisal, or a spirited and valuable discussion, if the writer is looking over his shoulder for advancing attorneys.”

And columnist Lucy Dalglish in the May issue of
Quill
, the voice of the Society of Professional Journalists, was absolutely apocalyptic, warning: “The decision could destroy an American art form—the review.”

But beyond such over-the-top statements, as well as all of the scare tactics and blind loyalty to the
Times
, the US Court of Appeals had stated that, essentially, opinion writers and reviewers should be held to the same standard of accuracy and honesty as news reporters.

In support of the ruling, the
Legal Times
published an article on March 14 that clarified the decision by stating, “The
Moldea
ruling will most likely prompt book reviewers to do more factual homework, a habit the First Amendment cherishes. And to the extent the decision chills reviews that maliciously and factually mislead the reader—the proof required for damage recovery when the book author is a public figure—it chills what ought to be chilled.”

Even though we had won a major victory with the appellate court's February decision, my attorneys and I still remained chronically on the defensive. We threw no parties. We never broke out the champagne.

On March 21, the
Times
' attorneys petitioned the entire eleven-judge court of appeals, en banc, for a rehearing of the case, arguing that the 2-1 decision “undermines two centuries of jurisprudence protecting literary criticism.”

The Association of American Publishers and the PEN American Center filed a condescending but badly misinformed amicus
brief on behalf of the
Times
about the “sloppy journalism” controversy—in which they sloppily mistitled my book, “Interference: How Organized Crime Influences
Basic Sports Knowledge
.” (Emphasis added.)

However, a second amicus for the
Times
didn't give us any laughs at all. Prepared by the eminent Washington attorney Kenneth Starr, an ex-judge with the same DC circuit court of appeals and the former solicitor general of the United States under President George Bush Sr., this amicus dripped with the power and prestige of its author. In his brief, Starr represented the Newspaper Association of America, Dow Jones & Company, the Associated Press, Scripps Howard, the Copley Press, the
Christian Science Monitor
, Time Inc.,
U.S. News & World Report
, the
New Yorker
, Magazine Publishers of America, the Society of Professional Journalists, among many others—about six hundred media organizations in all.

From the moment of its filing on March 21, my attorneys and I referred to Starr's work, with awe and respect, simply as
The World Amicus
.

On March 22, while trying to alleviate some of the tension after the filing of
The World Amicus
, I sent Roger Simmons a greeting card, thanking him for the great fight he was giving me. The card simply read: “Looks like it's you and me against the World. … And I think we're going to get creamed!”

However, with the merits of our case now established, news reporters, like a godsend, began to enter the fray. Suddenly, anonymous editorial writers and paranoid op-ed columnists were not the only journalists writing about
Moldea v. New York Times
. For the first time since the publication of the review, news reporters called and started asking for
our
side of the story.

This new phenomenon in the case—reporting our point of view—resulted in some excellent articles in the
Wall Street Journal
, the
Los Angeles Times
,
New York
, the
Columbia Journalism Review
,
Editor & Publisher
, and the
Nation
, among other publications. Without exception, whenever we received calls from news reporters who asked for details and documentation—even from those whose publications had signed onto
The World Amicus
—we also received fairness and balance in their published articles.

And, by the end of April, because of the prominence of the news reporting about the case, we felt that we were actually turning a corner in the public-relations battle against the
New York Times
, which was finally receiving some scrutiny and criticism for its actions at the time of the review's publication and in its immediate aftermath.

However, after the news reporters published their one-shot articles about the case and then moved on to other stories, their colleagues on the editorial pages continued attacking us unmercifully, giving no indication that they were even bothering to read what their reporters had written about the case.

For instance, since the filing of our suit, the
Washington Post
had published three editorials about our litigation—all of which flogged me for essentially having the audacity to defend myself. When Roger Simmons tried to support me with his own “Taking Exception” op-ed column in response to yet another one of the
Post
's
uninformed editorials, the
Post
refused to publish our defense—until we complained directly to its executive editor. Finally, a month after the publication of its most recent editorial, the
Post
published Simmons's reply.

The “Bizarre” Reversal

In the meantime, while preparing for a possible en banc hearing before the full Court of Appeals, my attorneys and I continued to talk regularly, to collect our evidence, to prepare strategy, and to evaluate potential upcoming scenarios.

Then, on May 3, the one scenario we had not even considered hit us like a runaway train: Judges Edwards and Wald—in the midst of the firestorm of editorial and op-ed criticism and without any new evidence, legal precedents, or oral arguments—suddenly and inexplicably reversed themselves in a new opinion Edwards now called
Moldea II
. In a preface to this new decision, Edwards apologized for his earlier “mistake of judgment.”

Of course, as the beneficiaries of this incredible and unprecedented one-hundred-eighty-degree turnabout, the
World Amicus
crowd did not protest—and did little or no reporting about—the extraordinary circumstances of the court's reversal. My attorneys and I wondered out loud whether they would have been as complacent if Exxon or Philip Morris had been the recipient of this mysterious judicial gift—and not the
New York Times
.

Remarkably, in
Moldea II
, Edwards claimed that in
Moldea I
he had “failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review, a genre in which readers expect to find spirited critiques of literary works.” Considering the number of months the judges had already spent on the case prior to
Moldea I
—which stated the exact opposite—we found the judge's explanation to be disingenuous and even ridiculous.