Interference (67 page)
Authors: Dan E. Moldea
Yet regardless of Edwards's continued support for the framework for
Moldea I
, he made several other statements in
Moldea II
that clearly conflicted with his first opinion.
For instance, Judge Edwards, who talked tough in
Moldea I
about an author's right to fairness and a reviewer's responsibility to get his facts straight, now wrote in
Moldea II
: “Indeed, some bad reviews may be written with an aim to damage a writer's reputation. There is nothing that we can do about this, at least without unacceptably interfering with free speech.”
In effect, my attorneys and I believed that Edwards and the appellate court had created a separate tier within journalism, an exemption from libel for opinion writers when they engage in “mischievous intent,” as the court now called it in
Moldea II
. News reporters and nonfiction authors had no such exemption and continued to be held to a “malice” standard.
Why did the appellate judges reverse themselves?
Of course, I did not even try to conceal what I believed. In my prepared statement to the
New York Times
, I declared: “These judges spent over six months reviewing the case history as well as my book. On that basis, they ruled in our favor. Since then, the only new contribution has been the avalanche of misleading articles and editorials overreacting to this decision. I think it's legitimate to question what impact all of that had on this very bizarre reversal.”
And I was not alone in this belief.
The day after the
Moldea II
bloodbath, the
Wall Street Journal
stated, “Even some detractors of the original opinion agreed with Mr. Moldea's assessment. âThis extraordinary reversal suggests the power of big media when they gang up on a single writer,' said Carlin Romano, the [newly-elected] president of the National Book Critics Circle and literary critic for the
Philadelphia Inquirer
.”
In addition, Romano told the
Washington Post
, “None of the big media outfits seem to take seriously that it may be Moldea who's on the right side of freedom of expression here. His argumentâthat he and authors like him have little chance to respond to book reviews in major publicationsâis well taken.”
The
Post
also quoted College of William and Mary law professor Rodney Smolla, a respected expert on the First Amendment, who said of the reversal, “This is impossible to understand. The first time around Chief Judge Abner Mikva had strongly dissented, which means they argued this out, thought this out, thrashed it out. ⦠It's inexplicable.”
In a second story published by the
Post
on May 5, reporter Joan Biskupic, in an extraordinary feat, managed to get the original lone dissenting judge in
Moldea I
on the record:
Judge Abner J. Mikva, who dissented in the original case, was vindicated this week. But he took no credit yesterday.
“I certainly did not lobby [the other two judges] on the issue,” he said. “I didn't send them copies of the editorials or anything. They could read those on their own.”
So did the original majority give in to outside pressure, as Moldea and others suggested Tuesday?
“These are very strong-minded judges,” Mikva said. “They don't cave to pressure. Even good pressure.” â¦
Others were not as generous. A libel lawyer who spoke [to Biskupic] on the condition of anonymity attributed the reversal to the “firestorm of public criticism that the earlier decision received.”
Biskupic also quoted Kenneth Starrâthe author of
The World Amicus
, whom Roger Simmons debated about the case that weekend on Court TVâas saying, “It was and is the talk of the law firms.”
Five years later, Mikva, then retired from the bench, was extremely candid about the issue of media pressure and its impact on his two colleagues during
Moldea v. New York Times.
In a June 14, 1999, article for the
Legal Times
, Mikva wrote:
I wish I could claim that my eloquence, either in my dissent or otherwise, persuaded my colleagues to change their minds. It was more likely the drumbeat of criticism begun in the editorials of the
Washington Post
and the
New York Times
about the “serious threat” to the First Amendment posed by the original decision. While my dissent was quoted widely in those editorials, the panel ignored it when the second
Moldea
opinion held that book reviews are entitled to special protection.
Routinely, my attorneys and I warned media people, who were blindly lining up behind the
Times
without even examining the merits of our case, to be very careful what they were asking forâbecause they just might get it if I lost this case. To be sure, what they received was an appellate decision that did nothing less than declare an open season for unchecked criticism on authors and their published works.
In an ornery May 7 editorialâeven with the dark cloud hovering over the circumstances of the court's decisionâthe
New York Times
praised Judge Edwards for his reversal and self-righteously concluded that the appellate court's second opinion safeguarded “spirited argument,” adding, “The whole society, freer to speak and argue about matters of public concern, is the winner.”
But, once again, the
Times
' refusal to publish my letter to the editor in response to this high-handed editorialâas well as my earlier response to the review of
Interference
âdenied me the opportunity to participate in this “spirited argument.”
On August 1, my attorneys filed a petition for writ of certiorari with the United States Supreme Court. Upon filing,
Editor & Publisher
quoted me as saying, “Whether we win or lose, my attorneys have given me a great fight for a worthwhile causeâtrying to make opinion writers accountable for what they publish, just like news reporters. Given the same set of unfortunate circumstances, I would do it all over again. I have no regrets.”
On October 3, 1994, in another reportedly unprecedented moment in judicial history that brought
Moldea v. New York Times
to an anticlimactic conclusion, the Supreme Court refused to review any of the nearly seventeen hundred newly petitioned cases pending before it, including
Moldea II
, thus denying me the opportunity to present my case in court.
The following day, the
New York Times
described the decision as “the day the Supreme Court of the United States said âno.'”
8
In his penetrating and courageous 1994 series in the
Nation
supporting my position in this litigation, Carlin Romano, then the president of the National Book Critics Circleâthe trade association for America's book reviewersâconcluded:
While you couldn't tell it from reading the
Times
, whose customary rapt attention to First Amendment cases waxed and waned on this action depending on whether the paper was winning or losing (it ran a brief wire service notice of
Moldea I
; a prominent, staff-written National section story on
Moldea II
),
Moldea v. New York Times
is the most provocative First Amendment case in years. It offers subtle facts and complicated philosophical questions about the respective verifiability of facts and evaluations. It pits deeply entrenched legal ideals against each other: the “breathing space” that criticism needs to be effective, and the right of an individual to defend his reputation. Perhaps most singularly, it exhibits the
Times
, normally on the noble side of free-expression controversies, confronting its raw power in the marketplace of ideas, particularly in regard to books â¦
Learning to love
Moldea v. Times
as a watershed libel ruling requires bringing together the facts of the case, the legal analysis they generate and the realities of power politics in book reviewing. It isn't a pretty picture â¦
Appreciating why
Moldea v. Times
turned into such a mess requires reflection on a too-little-pondered subject: how the
Times
, as a matter of practice rather than policy, often discourages free expression.
Sooner or later,
Interference
will be vindicated.
Endnotes for the Afterword
1
The following people read and approved all portions of the manuscript referring to them: Carl Capozzola, Don Dawson, Tom Mechling, Michael Roxborough, and Scott Schettler.
Further, there were numerous key characters in the book whom I telephoned to fact-check and/or to receive approval for their quotes. During many of these conversations, I read the sources the entire sections in which they were mentioned. Among them were: Lance Alworth, Ellen Berlow, Bob Blakey, Irving Cowan, Ed Curd, Len Dawson, Weeb Ewbank, Bennie Fuqua, Ron Goldstock, John Hadl, Leo Halper, Merle Hapes, Pat Healy, William Henrickson, Jim Hudson, Bernie Hughes, Sonny Jurgensen, Marty Kane, Gene Klein, Aaron Kohn, Dick “Night Train” Lane, William Lynch, Robert Maheu, Bobby Martin, Bill Matney, John McCrary, Bill Munson, Joe Nellis, Gene Nolan, John Olszewski, Leroy Orozco, Vince Promuto, Ben Rosenbloom, Marvin Rudnick, Morris Mac Schwebel, Jake Scott, Mike Strachan, Hank Stram, George Taliaferro, Emmitt Thomas, Johnny Unitas, Gene Upshaw, Warren Welsh, and Paul Ybarrondo, among many others.
2
The following is the exact text of Eskenazi's September 3, 1989, review of
Interference
â“Unsportsmanlike Conduct?”âin the
New York Times Book Review.
First, I've got to admit a tangled financial connection to the National Football League. My wife's first cousin married a psychiatrist whose father sold his plumbing business to a company that eventually became Warner Communications. And the owners of several football teams have a piece of Warner.
Is that clear?
Now you understand the kind of crazy-quilt tie-ins Dan E. Moldea makes in
Interference
to explain how organized crime and the N.F.L. are cozy.
Of course, Mr. Moldea, whose previous books include
Dark Victory: Ronald Reagan, MCA and the Mob
, has a built-in safeguard if he is questioned about his tactics or sources or conclusions: the league, he claims, will “send its front line of defense, the loyal sportswriters, to attack the messenger.” In other words, he has shielded himself in advance from criticism by people like me.
Too bad. For there is some really hot stuff in here, albeit warmed over. His examination of the 1980 Super Bowl ticket-selling scandal involving Georgia Frontiere, the multimillionaire owner of the Los Angeles Rams, and her husband, Dominic, who went to prison for tax evasion, shows that greed has no bottom line. And he raises truly disturbing questions about connections between some owners and friends who may be mob-connected, as well as about newspapers and television shows that regularly pander to people who bet on sports events. But there is too much sloppy journalism to trust the bulk of this book's 512 pagesâincluding its whopping 64 pages of notes.
Mr. Moldea is obsessed, for example, with Joe Namath. He says that, as a rookie, the New York Jets' quarterback roomed with “Joe Hirsch, who wrote a betting line and an inside information sheet on professional sports.”
Heady revelationsâexcept that the courtly Mr. Hirsch happened to be the racing columnist and chief reporter for
The Morning Telegraph
(now
The Racing Form
). He still is. He never picked horses, never wrote “an inside information sheet.” He is, in essence, the writer for the world of horse racing.
Mr. Moldea tells as well of Mr. Namath's “guaranteeing” a victory in Super Bowl III shortly after a sinister meeting in a bar with a member of the opposition, Lou Michaels, the Baltimore Colts' place-kicker. The truth is that the pair almost came to blows after they both had been drinking; and Mr. Namath's well-publicized “guarantee” came about quite innocently at a Miami Touchdown Club dinner when a fan asked him if he thought the Jets had a chance. “We'll win. I guarantee it,” Mr. Namath replied.
Mr. Moldea claims to be a football fan, yet his naïveté is apparent, as is his ignorance of basic sports knowledge, while several errors in spelling call into question his diligence at simple fact-checking. He misspells the name of a Heisman Trophy winner (Howard Cassady), the top thoroughbred trainer in the United States (D. Wayne Lukas) and the president of the New York Jets (Steve Gutman).
He revives the discredited notion that Carroll Rosenbloom, the ornery owner of the Rams, who had a penchant for gambling, met foul play when he drowned in Florida 10 years ago. He also offers still another recitation of the 1958 playoff game between the Baltimore Colts, then owned by Rosenbloom, and the New York Giants. The Colts disdained a field-goal attempt in overtime, choosing instead to go for a touchdown after they got close to the goal line. Mr. Moldea's implication is that they wanted to win by more than three points to beat the point spread.
The Colts “again refused to send in kicker Myhra to end the game” with a field goal, he complains. What he doesn't state in his text is that Steve Myhra was among the worst place-kickers in the league, having missed three extra points and more than half his field-goal attempts during the season.
There may well be some insidious connection between the wise guys and the N.F.L. Then again, there may not.
Interference
, with its errors and unfounded insinuations, does not settle the issue. Mr. Moldea raises the questions, but has blunted his own sword of truth.
In the credit line for Eskenazi, the
New York Times Book Review
identified him as follows: “Gerald Eskenazi, a sportswriter for
The New York Times
, is currently working with Carl Yastrzemski on his autobiography.”
3
I had misspelled the names of Howard Cassady, Steve Gutman, and D. Wayne Lukas, all three of which had a total of four cites in the book's index.