Moldea v. New York Times: Chronology of Events

Moldea v. New York Times

Chronology of Events

(Based exclusively on press coverage of this dispute since 1989)

Contents

Introduction/Summary (2)

The Book, the New York Times Review, and the Immediate Aftermath (3)

Eskenazi's Conflicts of Interest (4)

False Facts and the Letter to the Editor (6)

Damages Resulting from the Review (9)

Filing Suit Against the New York Times (10)

Misleading Statements about the Suit (12)

Lower Court Dismissal (12)

Appeal Filed (13)

The Appellate Reinstatement (14)

Milkovich and Opinions Based on Provably False Facts (14)

Analysis of the Appellate Decision (15)

General Media Reaction to the Decision (17)

Misleading Statements about the Appellate Decision (18)

The En Banc Petition (21)

The Amici (22)

Reaction from Other Writers' Groups (23)

The Appellate Panel Reverses Itself (24)

Analysis of the Reversal (26)

Was Media Pressure a Factor for the Reversal? (29)

Misleading Statements About the Appellate Reversal (30)

The Judges' Comments on the Reversal (32)

The Road to the U.S. Supreme Court (33)

The Supreme Court Petition (34)

Proposed Settlement (34)

Miscellaneous Issues (34)

The U.S. Supreme Court Refuses to Hear Any New Cases (36)

Analysis in the Immediate Wake of the Supreme Court's Decision (37)

Misleading Statements About the Supreme Court's Inaction (38)

A Final Word (38)

Endnotes (40)

Bibliography (44)

Introduction/Summary

"[Dan Moldea] wrote perhaps the most important sports book in the history of the

language." (L.A. Style; Keith Olbermann)

”Moldea has reason to be upset . . . [A]fter comparing what the book says with what

the [New York Times] review says it says, one might conclude that [the reviewer] was

some distance from Pulitzer territory.” (Columbia Journalism Review; Christopher

Hanson)

"Moldea has stated for the record that if the New York Times Book Review had

published his letter, not an overlong one by prevailing standards, he would not have

sued." (Los Angeles Times; Jack Miles)

"In the annals of publishing, it would be difficult to find a more David and Goliath-

like mismatch." (New York; Edwin Diamond)

"The Moldea decision [by the federal appellate court] deserves applause . . . [and] 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." (Legal Times)

"'[The federal appellate court’s reversal of Moldea’s victory] ‘is impossible to

understand,' said College of William and Mary law professor Rodney Smolla, an expert

on the First Amendment. The first time around, he noted, Chief Judge Abner Mikva

had strongly dissented, which means 'they argued this out, thought this out, thrashed it

out . . . It's inexplicable.’"

(Washington Post; David Streitfeld)

"'These judges spent over six months reviewing the case history as well as my

book,'[Moldea] said. '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.'" (New York Times; Tamar Lewin)

"Even some detractors of the original opinion agreed with Mr. Moldea's assessment.

'This extraordinary reversal suggests the power of big media when they gang up on a

single writer,' said Carlin Romano, president of the National Book Critics Circle and

literary critic for the Philadelphia Inquirer." (Wall Street Journal; Paul Barrett)

“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." (Legal Times; Abner Mikva)

The Book, the New York Times Review, and the Immediate Aftermath

"Dan E. Moldea spent seven years researching and writing Interference: How

Organized Crime Influences Professional Football. He and his publisher, William Morrow

& Company, had high hopes upon the book's publication last autumn. Early reviews

were good; bookstores were ordering briskly." (Columbia Journalism Review; Steve

Weinberg; March/April 1990)

"Moldea's latest [book] . . . alleged that 26 past and present NFL team owners had

documentable ties either to gamblers or to organized crime. Moldea also claimed to

have assembled evidence of some 70 fixed professional football games, and the

suppression of at least 50 'legitimate law enforcement investigations' into corruption

inside the NFL . . . [Moldea is] a longtime activist on behalf of writers' rights [and]—as

president of the Washington Independent Writers—was an important figure in the 1981

American Writers Congress . . . His first book, The Hoffa Wars: Teamsters, Rebels,

Politicians and the Mob, published in 1978, was a Book-of-the-Month Club selection and

was syndicated by, ahem, The New York Times. Dark Victory: Ronald Reagan, MCA and

the Mob, a 1986 best seller, was a piercing, carefully documented look at organized

crime's involvement in Hollywood." (Village Voice; Doug Ireland; September 11, 1990)

"[Moldea] wrote perhaps the most important sports book in the history of the

language. He painted the true and terrifying picture of a business whose movers and

shakers seem to have more connections to gambling and the mob than to touchdowns

and Super Bowls . . . Moldea even exonerated some of the game's more dubious

characters, spending as much time debunking alleged crookedness as he did

documenting the real thing."1 (L.A. Style; Keith Olbermann; January 1992)

"The author of three earlier books on organized crime, the 44-year-old Mr. Moldea

was thrilled when advance copies of Interference led to appearances on national TV,

including ABC's Nightline and Good Morning America.

"But in early September, just as the 1989 football season was starting, the Times

landed a powerful blow. Conceding that 'there was some really hot stuff' in Interference,

the reviewer, Times sportswriter Gerald Eskenazi, wrote, 'but there is too much sloppy

journalism to trust the bulk of this book's 512 pages.'" (Wall Street Journal; Paul M.

Barrett; April 7, 1994)

"Four days [after the September 3, 1989, publication of the review in the Times],

Moldea wrote the reviewer . . . charging that Eskenazi had seriously misreported what

Moldea had written. Eskenazi's errors about the book amounted to libel against the

book's author, Moldea said, and he demanded 'a full and prompt retraction.'

Otherwise, he promised to 'take legal steps to remedy this situation, which has already

caused tremendous illegal and unfair damage to my reputation and economic harm to

my book.'" (Los Angeles Times Book Review; Jack Miles; April 3, 1994)

"Moldea felt that the review misrepresented his book. He thought it asserted that he

alleged facts in the book that he hadn't alleged, and claimed that he didn't provide facts

that, he believed, he'd provided. On advice of his attorney, Moldea sent a letter to

Eskenazi on September 7, with a copy to Times Book Review editor Rebecca Sinkler,

demanding a retraction or correction. Getting no immediate response, Moldea directed

his attorney to call the Times's general counsel on September 13, with a demand that the

Times either retract or correct the review. On September 22, Times attorney David

Thurm responded by letter that Eskenazi's review was 'clearly protected as opinion,

and there is no basis for a correction or retraction'2

" . . . So just as one can see how Moldea's legalistic approach and doggedness

irritated the Times, one can see how Eskenazi's combination of condescension and

deception, coupled with his alleged inaccuracies, infuriated Moldea. To an outside eye,

the whole review looks not so much illegal as inept—a bad assignment that produced

an untrustworthy review. To Moldea, it constituted an act of libel that declared him

incompetent at investigative reporting—a direct attack on his livelihood." (The Nation;

Carlin Romano; June 6, 1994)

Eskenazi's Conflicts of Interest

"In the prologue to Interference, [Moldea] had predicted that the National Football

League would 'send its front line of defense, the loyal sportswriters, to attack the

messenger.' Eskenazi, he says, was beholden to the football establishment and the Times

should have made it clear to readers that Eskenazi covered pro football." (Columbia

Journalism Review; March/April 1990)

"In fact, Eskenazi is a full-time beat reporter covering the NFL and, specifically, the

[New York] Jets. Moldea charges that '[Eskenazi] and the Times depend upon the NFL

and NFL teams for access to information' and that Eskenazi's review was designed to

curry favor with longtime sources." (Village Voice; September 11, 1990)

" . . . I'll say that (a) I think Mr. Eskenazi's a first-rate writer and there was nothing

malicious in his review of Mr. Moldea's book, (b) I think Mr. Moldea is right when he

charges Mr. Eskenazi with writing a review that, at the very least, was misleading in

regard to several facts presented in the book and wrote that opinion for another

publication, and (c) although I've been reviewing books for The Times for nearly 10

years and could therefore be putting myself in an awkward position, I have to say I'm

often puzzled by The Times' reviewing practices . . .

"What I wonder is why The Times doesn't exclude reviewers from reviewing certain

books where a conflict of interest might at least be perceived, after all, it isn't as if there

aren't a lot of other books and reviewers out there . . .

"I'm not suggesting that Mr. Eskenazi had that kind of natural bias against Mr.

Moldea's book, but I think The Times could have fended off some charges by not giving

the assignment to a beat writer—one who could risk losing precious 'access' to

important National Football League information if he gave aid and comfort to a

scathing critic of the league like Mr. Moldea. Again, I'm not suggesting that Mr.

Eskenazi would back off of saying what he felt because of what the N.F.L. might do, but

if The Times hadn't given the book to a beat writer to review, the possibility for criticism

would not exist." (New York Observer; Allen Barra; May 9, 1994)

"The reviewer, veteran Times sportswriter Gerald Eskenazi, had covered had covered

professional football for the paper for many years. In 1977, he'd written his own puffy

book about pro football, There Were Giants in Those Days, in which he acknowledged his

indebtedness to various New York Giants officials and to Joe Browne, the N.F.L.'s chief

spokesman . . .

"To be sure, Eskenazi's review and its presentation excluded disingenuousness on

someone's part at the Times. Eskenazi was then a veteran writer assigned to cover the

Jets. In his book, Moldea specifically warned that the N.F.L.'s 'loyal sportswriters,'

dependent on the league for information and access, would attempt to discredit his

account. That alone might not have justified keeping the book from Eskenazi for

review, but it increased the Times's obligation to make Eskenazi's link to the book's

subject clear and upfront. Instead, the Times's identification line read, 'Gerald Eskenazi,

a sportswriter for The New York Times, is currently working with Carl Yastrzemski on

his autobiography.'

"As Doug Ireland noted in his September 11, 1990, Village Voice critique of the Times,

'the unsuspecting reader would naturally think that Eskenazi was a baseball writer.' To

make matters worse, Eskenazi did not acknowledge in the body of the review that he'd

covered the Jets for years, and had received past assistance from the N.F.L.'s director of

communications, Joe Browne. Instead, worsening an already deceptive presentation,

Eskenazi began his review with a mock admission that he might have a 'tangled

financial connection' to the N.F.L. because '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?'

"While trying to make it seem as if only a conspiracy nut could connect him to the

N.F.L., Eskenazi essentially covered up his arguable conflict of interest. Whoever

signed off on his ID line slipped up. Since most book reviewers are invited to suggest

their own ID lines, the original blame probably rests with Eskenazi." (The Nation; June

6, 1994)

"Mr. Moldea also believes Mr. Eskenazi's relationship with Joe Browne, the NFL's

vice president of communications, created a predisposition against the book. Mr.

Moldea says Mr. Browne attacked his book seven months before publication. Mr.

Moldea says Mr. Eskenazi was scheduled to meet with Mr. Browne before receiving an

assignment to review the book. Mr. Browne's name is listed in the margin of Mr.

Eskenazi's personal notes about Interference." (Washington Times; Judith Colp; April

23, 1992)

False Facts and the Letter to the Editor

"Moldea took issue not so much with the negative review and charge of 'sloppy

journalism' but more so with what he said were misstatements of facts and false

innuendo used to support that conclusion." (Editor & Publisher; Debra Gersh

Hernandez; March 19, 1994)

"Moldea has reason to be upset. I would, of course, never dream of suggesting that

the review was 'sloppy.' But after comparing what the book says with what the review

says it says, one might conclude that Eskenazi was some distance from Pulitzer

territory."

(Columbia Journalism Review; Christopher Hanson; May/June 1994)

"How nice, though, if, between opinions, we got the facts straight. Strong feelings

are no guarantee of intelligent thinking . . . I've read Interference, and Gerald Eskenazi's

Times review of it, and if we are to deplore sloppy journalism we must admit that

sloppy reviewing is one of its drearier subdivisions." (The Nation; John Leonard; July

11, 1994)

"One Eskenazi statement claimed that Moldea portrayed a meeting between Joe

Namath and Lou Michaels as 'sinister' when Moldea never used that word. Another

said that Moldea 'revives the discredited notion' that Los Angeles Rams owner Carroll

Rosenbloom drowned as a result of foul play—a notion Moldea rejected late in the

book. A third stated that Interference contained only 'warmed over' stuff, despite

Moldea's many fresh interviews. A fourth claimed that Moldea failed to reveal 'in his

text' that the Baltimore Colts in a famous 1958 playoff game had a lousy field goal

kicker (he mentioned it in a footnote). A final statement claimed that Moldea

mischaracterized a certain Joe Hirsch as the writer of 'an inside information sheet' for

horseracers." (The Nation; June 6, 1994)

"On Nov. 15, 1989, having failed to win a retraction or other correction, Moldea

wrote a letter of about 750 words to Rebecca Sinkler, editor of the New York Times Book

Review, refuting five alleged errors in the review by quoting from the book. For

example:

Charge: Leading the reader to believe that I claimed that Super Bowl III in

1969 was fixed, Eskenazi wrote that I charged that there was something premeditated

and 'sinister' about a meeting in a Miami bar between Namath and Baltimore Colts

placekicker Lou Michaels during the week before the game. He added that I failed to

point out that the meeting 'almost came to blows.'

Response: This is not true. I wrote in the second paragraph on page 197:

'[Lou] Michaels told me that the meeting at a Miami bar/restaurant was quite

accidental and even confrontational.' Michaels's statement was corroborated during my

interview with Jets' player Jim Hudson, who accompanied Namath to the bar. Further,

I never claimed that the 1969 Super Bowl was fixed. To the contrary, I produced

evidence on pages 194 and 198-199 discrediting the theory by Colts' player Bubba Smith

that it was.

"[T]he Times declined to publish this letter . . ." (Los Angeles Times Book Review;

April 3, 1994)

"I can testify that Eskenazi misrepresented some of what Moldea wrote in

Interference, in particular a meeting between New York Jets quarterback Joe Namath and

Baltimore Colts placekicker Lou Michaels. He also charged that Moldea didn't 'state in

his text' another point he clearly made in the 63 pages of notes at the end of the book."

(Akron Beacon Journal; Steve Love; April 19, 1994)

"But more germane is this sentence from the book review: '[Moldea] 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.' In

fact, Moldea interviewed witnesses who were at the scene, obtained the autopsy photos,

and concluded on page 360 of Interference: 'Rosenbloom died in a tragic accident and

was not murdered.'" (New York; April 18, 1994)

"In fact, Moldea ended up discrediting the notion that Rosenbloom was murdered.

He unearthed new evidence, interviewed experts, and concluded that the man died by

accident." (Columbia Journalism Review; May/June 1994)

"Said Roger C. Simmons, the author's attorney: 'We believe we can prove that kind

of assertion [by Eskenazi on what was reported in Interference about Rosenbloom's

death] had no factual basis. And it had a devastating impact on [Moldea's] career.'

"He noted that Moldea sent a letter of reply to the New York Times soon after

Eskenazi's review appeared, but it was not printed.

"'If they had printed his reply, there would never [have] been a case,' Simmons said."

(Los Angeles Times; David G. Savage; February 19, 1994)

"For nearly eleven months between the appearance of the review and Moldea's suit,

the Book Review refused to print his letter, even though Moldea made clear to the Times

that if it published his letter, he would not sue . . .

"Even recently, when media critic Edwin Diamond questioned George Freeman

about Moldea's offer to go away if the Times printed his letter, Freeman, now assistant

general counsel of the Times, 'would neither confirm nor deny that the paper had

received such a letter.'" (The Nation; June 6, 1994)

"Two years earlier [in 1992], however, after Moldea urged the NBCC [National Book

Critics Circle] to take a public position in his support, I had phoned Freeman for the

express purpose of asking whether the New York Times had ever received the letter in

question. At that time, he confirmed that the Times had indeed received the letter but,

finding it without merit, had not published it." (NBCC Journal; Jack Miles; August

1994)

"[Freeman] conceded, 'Whenever you get sued it cause you to think, 'What could we

have done to prevent this?'

"This is where a letter that Moldea says he sent to the Times—and that the Times says

it never got—plays a role. If the Times had published his letter, Moldea has said, he

never would have sued.

"'We don't hold our letter page to be a place where we can ransom off lawsuits,' said

Freeman, adding that 'we can't have a policy of publishing every letter by every

disgruntled author.'

"However, if the Times had known it was looking at a four-year lawsuit, Freeman

said, 'I suppose we would have looked more seriously at the letter to the editor he was

purported to have sent us.'" (Washington Post; David Streitfeld; October 4, 1994)

"Before filing suit, Moldea said he sought redress in the pages of the Times through

an op-ed or letter to the editor but was denied.

"Times assistant general counsel George Freeman, however, said the paper's position

is that it never received the letter.

"'The notion that he believes the letter should've been printed is ludicrous,' Freeman

said." (Editor & Publisher; Debra Gersh Hernandez; October 15, 1994)

"[W]hen the New York Times began receiving public criticism for refusing to publish

my letter, in-house Times counsel George Freeman simply began denying that the

newspaper had ever received it—despite the existence of my Federal Express airbill,

documentation of billing and payment on my American Express statements, and even

Federal Express's official confirmation of delivery to the Times." (Interference; Dan E.

Moldea; updated 1995 reprint)

"My sympathies are not with the New York Times in its original response to Dan

Moldea's complaints. Given all the circumstances, it should not have refused to run a

letter from him replying to its very tough criticism." (American Journalism Review;

Reese Cleghorn; July/August 1994)

"Moldea did not pick up the Times review and think lawsuit. He asked that mistakes

of fact be corrected by the Times or, failing that, that he be allowed to write a rebuttal . . .

"'Just let me have my defense on the record,' Moldea said.

"The Washington Post, which also criticized his work, did.

"Result: No lawsuit." (Akron Beacon Journal; April 19, 1994)

"Carlin Romano, president of the National Book Critics Circle, [said] . . . '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 argument—that he and authors like him have little

chance to respond to book reviews in major publications—is well taken.'" (Washington

Post; David Streitfeld; May 4, 1994)

Damages Resulting from the Review

"Authors get bad reviews every day; as these things go, Moldea's was not

overwhelmingly harsh. But the independent investigative journalist said it had a

drastic effect on his career." (Washington Post; David Streitfeld; February 19, 1994)

"Mr. Moldea argues that by impugning his credibility, the Times hurt not just his

book but also his career as a freelance investigative journalist. TV producers stopped

calling; publishers for a time wouldn't even nibble at new book proposals; and lecture

invitations dried up. 'I felt destroyed,' he says." (Wall Street Journal; April 7, 1994)

"In his four non-fiction books, Moldea has written about controversial subjects such

as the influence of organized crime on institutions such as the Teamsters, Hollywood

and professional sports. He can only be effective as long as he maintains a reputation

for care, honesty and detail. When the Times tarnished this reputation, it silenced

Moldea's independent voice." (Newsday; Roger C. Simmons; March 18, 1994)

"As a result, Moldea contends, his publisher 'withdrew support for the book, more

than 12,000 copies were returned from bookstores, reviews and articles in other

newspapers virtually ceased, and there was no paperback book contract." (Seven Arts;

Dan Rottenberg; December 1994)

"At KCBS-TV in Los Angeles, producers had planned an interview with him, recalls

Keith Olbermann, the station's former sports director. But the Times review effectively

killed those plans. 'What the New York Times says about a sports book has a lot of

weight,' says Mr. Olbermann, who now works at ESPN.

"Based on an advance copy of Interference, independent producer Marnie Inskip was

assigned to do a segment on Mr. Moldea by Fox-TV. After the Times review appeared,

Fox officials called her in, pointed to a copy of the review and demanded, 'What's this?'

Ms. Inskip says. The segment was canceled . . .

"Sales of Interference topped out at 21,000, and . . . bookstores began returning

thousands of copies . . .” (Wall Street Journal; April 7, 1994)

"In the dozen years I have known Moldea, I've always expected that one day

someone would get him.

"I just never figured it would be the New York Times . . .

"Eskenazi did what the mob could not: He killed Moldea." (Akron Beacon Journal;

Steve Love; April 19, 1994)

"Mr. Moldea said he had requested retractions and corrections and had written a

letter to the editor, and he filed suit just before the statute of limitations ran out . . . 'I

may be crazy, but I'm not stupid . . . I wasn't looking for a way to commit suicide by

suing The New York Times. This review was constantly thrown in my face, my income

had gone to hell.'" (New York Observer, D. T. Max; May 16, 1994)

Filing Suit Against the New York Times

"Moldea turned to [attorney] Roger Simmons and to associate Edmund Law of

Frederick, Md.'s Gordon & Simmons and to Stephen Trattner of D.C.'s Lewis &

Trattner. [Moldea v. New York Times was filed on August 23, 1990, in U.S. District Court

for the District of Columbia.]" (Legal Times; Julie Cohen; March 7, 1994)

"[A]s the statute of limitations on his libel claim was running out, he sued the Times .

. . alleging that six specific statements in the Times review—'too much sloppy

journalism' and five other statements meant to support that judgment—falsely

characterized his book and libeled him." (The Nation; June 6, 1994)

"Mr. Simmons says he's never doubted Mr. Moldea or any of his contentions. They

met nearly four years ago, when Washington lawyer Stephen Trattner, the author's

original lawyer and now co-counsel, introduced the two in a meeting. Soon after, Mr.

Simmons, with a $5,000 payment up front, accepted the case on contingency . . .

"Mr. Simmons, a well-respected local trial lawyer . . . says, 'I love a good fight' in

litigation.

"'Litigation is a form of civilized warfare. There are a lot of skirmishes, battles, but in

the end the question is whether you win the war.'

"'I told Roger when I sat down and [signed] the contract that I don't care if I win or

lose.' Mr. Moldea says. 'I said, "All I'm asking you to do is give me a great fight."'"

(Washington Times; Michael Richman; May 9, 1994)

"Moldea, who gained attention with his bestselling first book, The Hoffa Wars in 1978,

is seeking $10 million in punitive damages . . . for a Times review of his latest book . . .

The suit charges that the Times Book Review 'has a powerful influence on the publishing

business,' and that despite a 13-city, 70-interview book tour that had generated a third

printing after an initial run of 28,000, sales plummeted after the Eskenazi review

appeared." (Publishers Weekly; Howard Fields; September 7, 1990)

"Further, Moldea's suit alleges the review, since written by a sportswriter who covers

football, 'was intended to protect the NFL by personally attacking Moldea, discrediting

his reputation and smearing his good name as a careful investigative reporter.'" (Editor

& Publisher; Debra Gersh; September 8, 1990)

"Moldea's suit challenges a closed system that, thanks to the market power of The

New York Times, places one powerful voice (The New York Times Book Review) in the role

of bashing, barring and even banishing books and their authors. In these days of chain

bookstores that make purchasing decisions based on the Times Review, Moldea's suit

alleges that the Review gained its market dominance by holding itself out as a fair and

accurate evaluator of books."3 (Newsday; Roger C. Simmons; March 18, 1994)

"While Moldea's book might have been negatively affected by the Times review, his

career seems to have taken even more of a nose dive as a result of the suit. Publishers

apparently regarded him as a pariah, and for a time he couldn't get another book

contract." (Library Journal; Francine Fialkoff; May 15, 1994)

"Initially, Mr. Moldea's suit compounded his problems. For the first time in his

career, he couldn't get even a single offer on his book proposals. New York agent Frank

Weimann tried to peddle an 'as-told-to' memoir of a former U.S. intelligence agent, with

Mr. Moldea as the writer. But publishers' attitudes 'appeared to be: "If this guy is going

to sue the New York Times, what kind of trouble will that get us into?"' says Mr.

Weimann." (Wall Street Journal; April 7, 1994)

"After filing suit in August [1990], [Moldea's] woes only compounded. 'I turned in 20

proposals on 11 different subjects . . . No one [wanted] to work with me because I took

on the Times.'"4 (Washington Post; February 19, 1994)

"Mr. Moldea says that by 1991 his annual income from lecturing and publishing

under his own name had dwindled to $2,800, down from $59,000 in 1988. Unmarried,

he kept food on the table by ghostwriting, doing some private-eye work and serving as

an expert witness on the mob." (Wall Street Journal; April 7, 1994)

"Odder still is that in filing a $10 million lawsuit against the Times, Moldea would

come to be seen as a villain, a threat to criticism in particular and to the First

Amendment in general." (Akron Beacon Journal; April 19, 1994)

"I do not mean to suggest that Moldea is a villain. He is merely a man with no good

options. The Times Book Review is a powerful forum. Moldea asserts it all but broke

him, misrepresenting his book, costing him esteem, book contracts, lecture fees. He

tried and failed to get the paper to publish a rebuttal letter. He also tried to get some

other news outlet to air his side, but found none willing to take on the Times. Only then

did he reach for the ICBM of libel litigation." (Columbia Journalism Review;

Christopher Hanson; May/June 1994)

"A certain amount of journalistic arrogance contributed to this lawsuit. Moldea's

attorney has said Moldea would not have sued if the Times had printed his letter to the

editor in response to the review. It would be a travesty if such an action led to bad

law." (Quill; Lucy Dalglish; May 1994)

Misleading Statements about the Suit

"Three legal experts [two private attorneys, Bruce Sanford and Floyd Abrams, and

Henry R. Kaufman, general counsel of the Libel Defense Resource Center5] split on

whether libel cases against reviewers and columnists will be more viable now than in

the past. All agreed, however, that the courts will probably see heavy traffic as lawyers

test the waters." (Washington Post; David Streitfeld; August 24, 1990)

"That fear [of the impact of a June 1990 Supreme Court decision in an Ohio case,

Milkovich v. Lorain Journal Co., holding that opinions based on provably false facts may

be libelous] now takes a faintly absurd but still troublesome twist with the lawsuit of

writer Dan Moldea against The New York Times . . . Mr. Moldea's complaint . . . seems

something of a stretch. The review does, as he charges, accuse him of 'sloppy

journalism'; it goes on to give a string of examples, including spelling errors.6 . . . But for

Mr. Moldea to show that this sort of thing is provably false fact, rather than opinion,

would require a large and unwarranted step past anything established in the Supreme

Court's handling of the Ohio case." (Washington Post; editorial; August 26, 1990)

Lower Court Dismissal

"On Jan. 31, 1992, U.S. District Judge [John] Garrett Penn granted summary judgment

in favor of the Times . . . [Summary judgment] is granted when the facts of a case are not

in dispute and a decision may be rendered on the law alone . . . Moldea claimed that the

facts were indeed in dispute." (Los Angeles Times; April 3, 1994)

"Ruling in favor of the Times, [Penn] said the statement ['sloppy journalism'] is an

unverifiable opinion, and is thus not actionable under libel law.'" (Associated Press;

Laurie Asseo; February 1, 1992)

"Moldea's attorney, Roger C. Simmons . . . said that his client is not challenging the

right of Eskenazi to express his opinion, but rather 'whether or not the statements

challenged contained factual assertions.'

"It is those factual assertions that Moldea claims are false and defamatory.

"'We feel it's an important case for writers,' said Simmons . . .

"Moldea commented, 'I believe if this ruling [the dismissal] stands, authors will be at

the complete mercy of reviewers, and that the publications that print [their] reviews

will have no responsibility to monitor conflicts of interest and [to] correct mistakes.'"

(Editor & Publisher; February 8, 1992)

Appeal Filed

"In his appeal [filed on May 19, 1993], Moldea argued that the District Court was in

error when it did not consider all the statements cited as defamatory in the original

complaint that, according to his appeal, 'expressed or implied provably false,

defamatory facts.'

"Moldea also noted that 'the mere fact that Eskenazi's statements appeared in a book

review does not warrant their protection and provides no basis for affirming the lower

court's decision.'" (Editor & Publisher; Debra Gersh; July 10, 1993)

"Moldea contended in his brief to the Appeals Court—which set oral arguments for

September 14—that Penn focused too much on that one quote ["sloppy journalism"] and

not enough on the other five in question; did not allow him to amend his complaint to

take into account another intervening Supreme Court opinion; and simply failed to

follow the Supreme Court's edicts that opinions also can be libelous." (Publishers

Weekly; Howard Fields; June 7, 1993)

"Throughout the four-year ordeal, [Simmons and Moldea] have disagreed on just one

major point. Mr. Moldea says that prior to the first circuit court rehearing, he wanted

the 'sloppy journalism' phrase removed from his argument, intending for Mr. Simmons

to concentrate instead on the review's factual errors. But Mr. Simmons insisted that

'sloppy journalism' remain, saying that the review was based on false facts and,

therefore [the term 'sloppy journalism'] was libelous.

"In the appellate court decision, the lawyer's intuition proved right."7 (Washington

Times; May 9, 1994)

The Appellate Reinstatement

"An author whose competence as a journalist was attacked by a New York Times Book

Review may sue the newspaper for libel, the U.S. Court of Appeals for the District of

Columbia Circuit ruled Feb. 18.

“The 2-1 panel reversed a lower court that had ruled the book review was not

actionable 'because it consisted only of unverifiable statements of the reviewer's

opinion' of the book." (National Law Journal; March 7, 1994)

"The ruling by a three-judge panel of the U.S. Court of Appeals was a procedural

victory for investigative journalist Dan Moldea . . . " (Wall Street Journal; Paul Barrett;

February 22, 1994)

"The D.C. Circuit reversed and remanded the case on two grounds. First, the court

said that the book review could be defamatory as a matter of law because it attacked

Moldea's competence in his profession. Second, the appeals court held that Eskenazi's

characterizations of Interference were sufficiently factual that a jury could determine

their truth or falsity." (Entertainment Law & Finance; Stan Soocher; April 1994)

"[T]he review gave a number of examples of Moldea's alleged sloppiness, five of

which he is challenging in his suit. The judges said four of the five could be

meaningfully determined by a jury to be true or false." (Washington Post; February 19,

1994)

"[A] lawyer [Roger C. Simmons] who represented Moldea praised the ruling as a

'victory for the small guy' against the most powerful force in book publishing." (Los

Angeles Times; February 19, 1994)

"Moldea's case is not about opinion; it's about publishing provably false facts that are

disguised as opinion. Dan Moldea has been waiting since 1990 to have these issues

fully aired at trial. Hopefully, such a hearing will now occur without further delay."

(Newsday; Roger C. Simmons; March 18, 1994)

"'I've been waiting five years for my day in court, and it looks like I'm finally going to

get it,' said an exultant Moldea." (Washington Post; February 19, 1994)

Milkovich and Opinions Based on Provably False Facts

"[The Moldea appellate] ruling illustrates a new trend in libel law. Since 1990, courts

have increasingly held critics and opinion writers to the same strict standards for

accuracy as news reporters.

"Before then, critics, columnists and editorial writers generally were seen as immune

from libel suits because their words were labeled opinion, not fact." (Los Angeles

Times; February 19, 1994)

"In 1990, the U.S. Supreme Court ruled in Milkovich vs. Lorain Journal that even

statements of opinion can be libelous if they contain 'false and defamatory' facts. Until

Moldea vs. New York Times, however, no one had claimed that a negative statement

about a book could, by implication, constitute a 'false and defamatory' statement about

the book's author. It is the novelty of this claim that may yet make the Moldea case one

of historic importance for American book reviewing." (Los Angeles Times Book

Review; April 3, 1994)

"Book reviews are entitled to no special protection in defamation law, the court made

clear [in Moldea v. New York Times]. It noted that Milkovich v. Lorain Journal Co. rejected

the practice of classifying statements as either assertions of 'opinion' or 'fact,' with

opinion being protected by the First Amendment. Defamation law now recognizes that

opinion is actionable if it implies a provably false fact. Even if a speaker states the facts

upon which he bases his opinion, if they are either incomplete or incorrect, or his

assessment of them is erroneous, the statement may imply a false assertion of fact and

be actionable." (United States Law Week; March 1, 1994)

Analysis of the Appellate Decision

"What is at issue is whether a review must adhere to the same standards of honesty

and accuracy that are applicable to hard-news stories . . . In other words, critics have to

be able to support their case with provable facts, a revolutionary idea in both legal and

journalistic terms." (New York; April 18, 1994)

"Without judging the facts as such, the court . . . found that since it was provable that

Mr. Eskenazi might have erred, and perhaps erred in a way that defamed Mr. Moldea

as a journalist, Mr. Moldea had the right to his day in court." (New York Observer; May

16, 1994)

"Two judges on the U.S. Court of Appeals for the District of Columbia Circuit, who

are longstanding protectors of the First Amendment and who are among the finest

minds in the legal profession, joined in the opinion at issue. They made it clear that

Moldea v. The New York Times is most distinctly not a suit over a 'bad review,' nor about

the use of the term 'sloppy' standing alone. It is a suit challenging verifiably false

factual assertions."8 (Washington Post; Roger C. Simmons; March 23, 1994)

"In Moldea, Judge Harry T. Edwards, writing for the majority, stated that, accusing

the plaintiff of 'sloppy journalism' 'implies certain facts—that Moldea plays fast and

loose with his sources . . . ' Judge Edwards added that a reviewer shouldn't be able to

'attack a person's work with impunity, and without substantiating his charges with

facts, merely by using arguably imprecise terms." (Entertainment Law & Finance;

April 1994)

"Can a writer sue over a negative opinion? Over the opinion as such, no, but over

factual error offered as the basis of the opinion, yes, Moldea insists. So did [the] federal

appeals court in Washington . . . " (Los Angeles Times; editorial; March 9, 1994)

"The panel also noted that its analysis 'is not altered by the fact that the challenged

statements appeared in a book review rather than a hard news story.' It said 'the injury

to Moldea's reputation is if anything greater because [the] review appeared in a forum

to which readers turn for evaluation of books.'" (National Law Journal; March 7, 1994)

"The judges also agreed on the paramount importance of a Times review. 'For an

author, they said, 'a harsh review in The New York Times Book Review is at least as

damaging as accusations of incompetence made against an attorney or surgeon in a

legal or medical journal.'" (Washington Post; February 19, 1994)

"Moldea rejects the notion that his suit could bring on some sort of nuclear winter in

opinion writing. He insists that he is not suing over subjective opinions, that his case is

strictly about defamatory and false assertions of fact, and that it is only reasonable to

hold opinion writers (who until recently enjoyed special protections from defamation

suits) to the same standards as regular reporters." (Columbia Journalism Review;

May/June 1994)

"The duty to refrain from false or defamatory statements cannot, obviously, require

journalists to be infallible. An innocent mistake may always be corrected, and most

publications—newspapers, in particular—correct errors far more quickly and

prominently nowadays than they once did . . . Moldea has stated for the record that if

the New York Times Book Review had published his letter, not an overlong one by

prevailing standards, he would not have sued." (Los Angeles Times; April 3, 1994)

"[George Freeman, the Times senior attorney said,] 'The issue is not if we're right or

wrong. Certainly the book is subject to multiple interpretations. It's wrong that it goes

to a jury.'" (Editor & Publisher; March 19, 1994)

"The Moldea decision deserves applause for tacitly recognizing that free-speech goals

are promoted, not threatened, by chilling publication of defamatory falsehoods about

public officials or other figures that are the product of malice. Indeed, those goals

would also be advanced by allowing the threat of defamation suits to deter negligent

publication of untruths . . .

"[T]he 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." (Legal Times; Bruce Fein; March 14, 1994)

General Media Reaction to the Decision

"[Moldea's] suit, which had been dismissed by a lower court, immediately assumes

the significance of a major First Amendment test case . . . 'This is a surprising if not

startling result, and perhaps unprecedented,' said Henry R. Kaufman, chief counsel of

the Libel Defense Resource Center. The information clearinghouse is supported by

media that include the New York Times and The Washington Post." (Washington Post;

February 19, 1994)

"The case, not widely known until the second ruling, has begun to rattle the

publishing industry over the potential for libel in book reviews." (Christian Science

Monitor; David Holmstrom; March 1, 1994)

"'I'm expecting to get powdered here,' . . . Moldea said. 'People see this as creating

tremendous damage to the First Amendment. But I just see it as putting opinion

writers' feet to the fire." (Washington Post; February 19, 1994)

"The media are up in arms over the panel's decision, pointing to a dissenting judge's

assertion that it could 'open up the entire arena of artistic criticism to mass defamation

suits.' Until recently, courts made a sharp distinction between assertions of fact and

opinion, and opinion was completely shielded from libel suits." (Wall Street Journal;

April 7, 1994)

"Since September 1989, when Gerald Eskenazi's review appeared in the New York

Times Book Review, Moldea has been a literary leper . . . Moldea continues to be vilified

in the pages of the Washington Post and elsewhere." (Akron Beacon Journal; April 19,

1994)

"The very idea of a Moldea victory at trial has sent an arctic tingle down the spines of

many opinion writers, who fear their leeway will be constrained. If Moldea prevails

'we might as well fold our tents,' as Washington Post book reviewer Jonathan Yardley

put it." (Columbia Journalism Review; May/June 1994)

"Almost all the news stories and editorial commentaries about the case have framed

it as the story of one crank writer whining about one bad review. Moldea is pictured as

an enemy of free speech." (New York; April 18, 1994)

"Some journalists and First Amendment buffs see Mr. Moldea as a traitor. 'For Dan

Moldea, an investigative journalist who has been the beneficiary of libel-defense law, to

turn around and file a libel suit is unconscionable,' says Jane Kirtley, executive director

of the Reporters Committee for Freedom of the Press." (Wall Street Journal; April 7,

1994)

"Kirtley . . . criticizes Moldea 'for bringing in the lawyers.' Instead, she says, he

should have raised hell, gone public, written letters to the editor. But that's exactly

what Moldea says he did do. First he wrote Eskenazi 'questioning his use of misleading

facts.' According to Moldea, Eskenazi never replied. Next, Moldea asked the Times to

run a corrections box and was turned down. Next, he wrote a letter to the editor of the

Book Review. It never appeared." (New York; April 18, 1994)

"Contributing to the pile-on tactics, both big corporate media and putative defenders

of free expression strafed Moldea I from the start, with little attempt to understand

Moldea's side of the case." (The Nation; June 6, 1994)

"'This case is not about the First Amendment,' said Moldea in a phone interview. 'If a

writer bases his opinions on a series of false facts that are defamatory, then he loses his

opinion privileges. That is what this case is about.'"9 (Christian Science Monitor;

March 1, 1994)

"What seems certain at this point is that the Times, whether or not it is legally

culpable, was guilty of some sloppy journalism of its own—not to mention considerable

hauteur—and that Moldea is a hapless figure who finds himself in a lose-lose position . .

. [He says,] It's Catch-22: 'If I lose, I'm dead. If I win, I'm still dead, because I'm seen as

limiting free speech.'" (New York; April 18, 1994)

Misleading Statements about the Appellate Decision10

"Unless the decision is overturned by the Appeals Court, critics will have no right to

criticize literary and artistic works.

"The decision could destroy an American art form—the review. Who wants to read

criticism if you know the critic has one eye on her computer screen and the other

watching for lawyers?" (Quill; Lucy Dalglish; May 1994).

"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 . . . [S]ubjects of Moldea's

books could sue him. Certainly a book that says football officials are being influenced

by the Mob is not enhancing their careers. Law is a two-way street, and Moldea should

consider the long-term implications, particularly for investigative journalists, rather

than focusing on assuaging a wounded ego.

"Moldea claims that the review caused him to lose television bookings and

assignments. That may be, but the loss is more of an indictment of how commercial the

book business has become and how spineless the rest of the media are in the shadow of

the Times.

"As a journalist, Moldea should be more outraged at the larger picture. What's

happening to independent thinking? What's happening to intellectual discourse? A

review is supposed to stimulate both, but today it is often seen as a price tag." (Boston

Globe; editorial; April 18, 1994)

"Whatever Moldea's own problems, the court's decision has disturbing implications

for review media . . . It could . . . open us up to wholesale lawsuits from irate authors,

resulting in substantial legal costs even if we were to win the case. And it could

threaten the existence of already shrinking newspaper review sections and the

promotion efforts that publishers base on reviews.

"More importantly, however, the decision threatens First Amendments rights . . .11

"Nevertheless, most authors don't sue because of a bad review. They take the bad

ones with the good ones. They understand that taking reviewing knocks is part of the

publishing process . . . [W]hether or not they've been favorably or badly reviewed, they

shouldn't jeopardize the First Amendment." (Library Journal; Francine Fialkoff; May

15, 1994)

"Ask a typical American teenager and his mother what a 'sloppy' room looks like,

and you're sure to get wildly differing descriptions. Defining that adjective is an

extremely subjective undertaking. There is no provable right or wrong answer because

the question seeks an opinion, not a fact. But that is the very word at issue in a case

decided by the U.S. Court of Appeals here last Friday." (Washington Post; editorial;

February 24, 1994)

"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." (Washington Post; Joann Byrd; February 27, 1994)

"Looking back over all those years and all those reviews, I realize that I've often said

a book 'has the clear ring of truth.' This, however it may be phrased, is how a reviewer

says, 'I don't have the time to research every assertion or fact in this book, but the

material is presented with sufficient authority to persuade me that it's accurate.' In

saying that Moldea's book was 'sloppy,' Eskenazi—if I interpret him correctly, which is

to say, here we go again—was merely saying the opposite: 'I don't have the time to

research every assertion or fact in this book, but the material is not presented with

sufficient authority to persuade me that it's accurate.'" (Washington Post; Jonathan

Yardley; February 28, 1994)

"Obviously, this most recent turn in the world of legal squabbling portends doom for

the legion of scribes who, without ever having to demonstrate any noticeable talent in

the arts themselves, gleefully run roughshod over the efforts of others. Now, for nobly

protecting the citizens of our nation from the extreme nausea induced by inferior

entertainment products, these brave and honorable men and women must face

persecution." (Los Angeles Times; David Kronke; February 28, 1994)

"A book, after all, even a work of non-fiction, is a kind of confession, a revelation,

real or posed, of who the author really is, of what he or she believes has meaning. And

to see his heartfelt declaration dismissed as flat or ordinary or sloppy in the pages of

The New York Times is a hard enough slap across the nose to draw tears from anybody."

(Universal Press Syndicate; Pete Dexter; March 2, 1994)

"A review is, after all, pure, subjective opinion, and as such has been protected from

libel suits. We have always recognized that critiques of music or restaurants or movies

in a section set aside for reviews, or under a column heading that says this is a review,

are expressions of opinion. Statements that are clearly opinion should never be

influenced or limited by the fear of lawsuits. Even if a reviewer's judgment is negative

when every other reviewer thinks that, for example, Danielle Steel is better than Marcel

Proust, shouldn't the sole dissenter be permitted his say? He should, even if he makes

unintended factual errors in his review." (Newsday; Martin Garbus; March 10, 1994)

"In fact, you'd be safer if you followed my mother's (and probably your mother's)

maxim: 'If you don't have something nice to say, then don't say anything at all.'" (Legal

Times; Martin Garbus; March 14, 1994)

"Cry me a river. I don't know how many reviews the appellate judges read, but by

my standards this one was mild. If they were to read John Simon in New York magazine

or Howard Rosenberg in the Los Angeles Times, or catch some of the Siskel-Ebert

television reviews of films, they would learn what a highly unfavorable review is. Nor

do I think that it should be at all relevant what the conclusion of a review is. Some

restaurants and books are not just bad but very bad, and a reviewer should be free to

say so." (Daily Variety; Martin Garbus; April 11, 1994)

"There might be a situation where a suit could appropriately be filed against a

reviewer—where it can be shown that his language and judgments are malicious

because he is motivated by personal animosity. That is not the basis of Moldea's suit,

however, and Moldea does not claim it is." (Publishers Weekly; Martin Garbus; April

25, 1994)

"You might think that the ruling of the appeals court would be good news for

authors longing to get back at the critics. But the Association of American Publishers

and the PEN American Center have together submitted an amicus brief on behalf of The

Times. The Appeals Court's decision, the AAP-PEN brief argues, 'would invite each of

the hundreds, if not thousands of persons criticized in the thousands of book reviews

and other critical works published each year to bring libel actions against their critics

and their critics' publishers . . . As creators whose own lifeblood depends upon a

vigorous First Amendment, these authors and publishers recognize . . . that such

inherently subjective criticism "goes with the territory."'" (New York Observer; Jim

Windolf; March 28, 1994)

"This [the AAP-PEN amicus] made George Freeman, The Times's assistant general

counsel, very happy. 'It's very significant that even the book publishers and authors

who are the subject of scathing reviews have realized that though in the short run they

may be happy that The Times got into trouble over a book review, in the long run their

interests are on the side of free speech and allowance of opinionated reviews,' Mr.

Freeman said yesterday." (New York Times; Sarah Lyall; March 23, 1994)

"I teach a class in media law, and I asked the members of my class to read the court's

original opinion in the Moldea case. From their responses, I could see that the court's

decision worried some of my student journalists. Our campus newspaper publishes

movie and concert reviews. Could one of our reviewers be open to legal action by

writing a critical piece?

"The class consensus was that Moldea was just too thin-skinned. Those who earn

their living by selling their work to the public should expect a certain amount of critical

comment." (Houston Chronicle; Nicole B. Casarez; May 13, 1994)

"Every columnist and editorial writer in the country indeed, anyone who publishes

written criticism of anyone else will now want to think twice about expressing opinions

not based on what Edwards and Wald call 'true facts.' . . . I'm thinking hard about what

I myself write about fatheaded federal judges." (Cincinnati Enquirer; James J.

Kilpatrick; April 26, 1994)

The En Banc Petition

"Notwithstanding the perils of the D.C. Court of Appeals, probably the nation's most

politicized court, we asked for . . . rehearing en banc." (Communications & the Law;

George Freeman; December 1995)

"[On March 21, 1994] The New York Times . . . asked the entire [11]-judge appeals court

to review the decision made by three of its members. If it affirms the three judges'

decision, then the case will be remanded to the district court for rehearing, this time

before a jury . . . If the three judges' opinion is overruled, Moldea says he will appeal to

the U.S. Supreme Court." (Los Angeles Times; April 3, 1994)

"In its petition for rehearing, the Times argued that the appeals court decision

'undermines two centuries of jurisprudence protecting literary criticism' and, through

various examples, 'places at risk virtually every unflattering review . . . The decision's

fundamental error is not in concluding that Eskenazi's characterization was arguably

wrong; it is in presuming that there is any right interpretation . . . '

"Moldea brief, however, submitted by Roger Simmons of the firm Gordon &

Simmons, argued, 'The review was not a traditional one because it misrepresented the

contents of the book, contained false and defamatory statements which assailed

Moldea's professional competency and honesty, and affirmatively concealed the nature

and extent of Eskenazi's relationship with the NFL . . . This is a classic case of an

appellee who is unhappy with an appellate panel's reversal of summary judgment

which was based on the lower court's improper resolution, or disregard for genuine

issues of material fact; in this case, the interpretation of certain factual statements

contained in the review.'" (Editor & Publisher; Debra Gersh Hernandez, April 23,

1994)

"Publishers—not to mention book reviewers—are closely watching appeals to the

ruling. In addition to its pending request for a new hearing by the full 11-member

appeals court, the Times could also appeal to the Supreme Court. Says Mr. Moldea:

'We still have a long way to go.'" (Wall Street Journal; April 7, 1994)

The Amici12

"[T]he Association of American Publishers and the PEN American Center have

together submitted an amicus brief on behalf of The Times . . . Another amicus brief was

filed on behalf of 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 and others." (New York Observer; Jim Windolf;

March 28, 1994)

"Moldea vs. the New York Times is one of the most important libel cases facing the

publishing industry. Crime writer Dan Moldea, author of Interference: How Organized

Crime Influences Professional Football, sued the Times for libel, alleging that a review of his

book factually misstated key elements of his reporting and called Moldea a 'sloppy'

journalist. Among those to file a joint amicus friend-of-the-court petition on behalf of

the Times were the Association of American Publishers (the nation's largest trade

association of publishers) and the PEN American Center (an international organization

of novelists, poets, essayists, playwrights and editors). The problem: In the petition,

they got the title of Moldea's book wrong, calling it ‘Interference: How Organized

Crime Influences Basic Sports Knowledge.’ 'Somebody screwed up,' said PEN attorney

Leon Friedman. 'I don't know where that crept in.'" (Hollywood Reporter; THR E-Mail;

April 25, 1994)

"The [appellate] ruling set off a storm of media protest in editorials and in court.

Typical was a brief [amicus] prepared by several publishers, including U.S. News. 'The

repercussions of this far-reaching, unsettling ruling threaten to keep from the public

much of the insight, perspective and information that can only come from free-ranging

criticism,' said that group. 'Every author, artist or chef out to avenge an ego wounded

by a less-than-glowing review is now a potential plaintiff.'" (U.S. News & World

Report; Ted Gest; May 16, 1994)

"As if all [the critical newspaper editorials] didn't already place enough of a

figurative ex parte hand on the scales of D.C. justice, the lawyer hired to write the brief

for 'the world,' as some referred to the media organizations' amicus, was Kenneth Starr,

himself a former member of the D.C. Circuit Court of Appeals. While former federal

judges are free to file briefs to their former courts . . . , Moldea could be forgiven for

thinking the circumstances didn't help him. Did their former colleague's opinion affect

Edwards and Wald?" (The Nation; June 6, 1994)

"PEN and the AAP held that the court decision for Moldea has 'significantly

undercut the constitutional protection afforded literary critics and their publishers

throughout history . . . The potential loss to First Amendment freedoms arising out of

encouraging suits of the sort Mr. Moldea has initiated far outweighs any benefit that

may derive from 'setting the record straight' in response to biting criticism' . . . Writers

would risk libel suits if they wrote and published literary criticism that dared to

challenge or provoke ideas." (The Pen Newsletter; no byline; Summer 1994)

Reaction from Other Writers' Groups

"One interested party that very significantly did not weigh in with the court [with an

amicus] was the Authors Guild, which represents writers and which may have been

influenced by the fact that Mr. Moldea is a member.

"'We are very interested in it and we've been following it very closely,' said Robin

Davis Miller, the guild's executive director. 'But it's far from clear which side the

authors should be on. Reviews are a double-edged sword: publicity is better than no

publicity, but are there lines that reviewers can't cross? Absolutely. Is this one of those

cases? I don't know.'" (New York Times; March 23, 1994)

"In September 1990, WIW's [Washington Independent Writers'] Board of Directors

voted 7-2 to adopt a resolution supporting Moldea's legal action. The resolution

acknowledged the book reviewer's 'undeniable First Amendment right to free

expression of his or her opinion regarding any book under review,' however it also

asserted the 'moral and ethical obligation of the publisher to retract any libelous

portions of the review or to provide the author in question with the opportunity for a

rebuttal.'"

(Independent Writer; Rosemary Lally; April 1994)

"Late in 1991, Moldea asked the National Book Critics Circle to take a public position

in support of his suit. I was president of the NBCC at the time and forwarded his

request to the NBCC board, a body of 24 book editors and free-lance critics. I also

spoke to [Times legal counsel] George Freeman and [New York Times Book Review editor]

Rebecca Sinkler at that time so as to be able to present their side of the dispute to the

NBCC board.

"After much consideration, the board decided to take no position on the matter.13

Thinking as reviewers faced with the prospect of future litigation if their work struck an

author as defamatory, some on the board tacitly sided with the New York Times . . .

Others on the board, perhaps thinking of their vulnerability as authors to essentially

unaccountable reviewers, tacitly sided with Moldea, who claims: 'If I win this case, the

worst that can happen is that reviewers and other opinion-writers will suddenly have a

responsibility to be accountable for what they write. Any writer who cannot live with

that should not be in this profession.'" (Los Angeles Times; Jack Miles; April 3, 1994)

"[I]n 1991 and 1992, both Sinkler and Freeman spoke more directly to the N.B.C.C.

and its president, Jack Miles. Moldea had asked the N.B.C.C. to consider the merits of

his case. He hoped that it would issue a statement supporting his view that the Times

had libeled him or at least find that the paper had shown extreme lack of generosity in

refusing to publish his letter.14 Times counsel Freeman, however, opposed the idea of

the N.B.C.C. commenting on the matter, writing a letter to Miles on January 16, 1992,

that 'it is entirely inappropriate for the National Book Critics Circle to take any

substantive position with respect to the facts of this litigation. It hardly behooves your

fine organization to be exploited by a party in litigation in such a way.'" (The Nation;

June 6, 1994)

The Appellate Panel Reverses Itself

"On May 3, Mr. Moldea soundly lost Round 3 of the literati's most-watched ringside

battle since last year's fight between Janet Malcolm and Jeffrey Masson." (New York

Observer; May 16, 1994)

"In an extraordinary action, a federal appeals court retracted a controversial ruling

that would have made it easier to file libel suits against publishers of negative book

reviews and other critical works.

"A three-judge panel of the U.S. Court of Appeals said its 2-1 decision in February

had simply been wrong—a stunning admission for an influential court to make,

especially in a celebrated case . . .

"The Times had urged the panel to reconsider its initial decision, but the three judges

didn't even hold a new round of oral arguments, making yesterday's reversal even

more surprising . . .

"Federal appeals courts have considerable latitude to change their views on an issue,

as long as they don't clash with the Supreme Court. In addition, three-judge panels

sometimes modify aspects of their rulings at the request of litigants. On rare occasions,

the full membership of an appeals court will reverse a ruling by a three-judge panel.

What made yesterday's action so unusual was the fact that the panel majority changed

its own position 180 degrees in the same case." (Wall Street Journal; Paul Barrett; May

4, 1994)

"The ruling nullifies a controversial opinion issued by the court in February that

appeared to open the door to libel suits against critics who pan movies, plays,

restaurants, books or anything else offered to the public . . . Judge Patricia Wald also

switched sides with Edwards, making for a 3-0 ruling. The new decision, at least for

now, kills Moldea's lawsuit." (Los Angeles Times; David G. Savage; May 4, 1994)

"Edwards' new opinion noted, 'the distress felt by a judge who, in grappling with a

very difficult legal issue, concludes that he has made a mistake of judgment . . .'

"Moldea and his lawyer, Roger Simmons, said the new ruling was a mistake and

would be appealed to the Supreme Court." (Associated Press; David Morris; May 3,

1994)

"Edwards, reversing his earlier opinion, declared that he now believed that 'spirited

critiques of literary works' must be shielded from libel suits, except when they launch a

false 'personal attack' on the author." (Los Angeles Times; May 4, 1994)

"Edwards, 53, a 1980 Jimmy Carter appointee and former University of Michigan law

professor, has a reputation for decisiveness, even stubbornness. The same has been said

of Wald, 65, a former assistant attorney general, appointed by President Carter in 1979.

Like Mikva, they are considered appeals court liberals." (Washington Post; Joan

Biskupic; May 5, 1994)

"Lawyers for the Times, which had been hoping at best for a rehearing by the full 11-

member appeals court, were happily stunned yesterday. Bruce Sanford [the Times's

lead outside counsel] saluted Edwards's 'enormously rare' action as 'a testament to the

quality of the man and the judge.'" (Washington Post; May 4, 1994)

"The appeals court also dismissed Moldea's charge of false light invasion of privacy,

and discounted his argument that the reviewer, a football writer for the newspaper, had

ulterior motives for the negative review." (Editor & Publisher; Debra Gersh

Hernandez; May 21, 1994)

"Simmons [said] that 'we have certainly not given up. Dan Moldea is a fighter, and

we intend to win. We will pursue at the next level." (Washington Post; May 4, 1994)

Analysis of the Reversal

"Edwards reversed what he lamely called Moldea I, upholding the lower court's grant

of summary judgment . . . Wisdom is one thing. Stare indecisis is another. Contrary to

some reports, which suggested that Edwards had tossed out Moldea I, Moldea II

announced that the 'fundamental framework' for defamation actions established in

Moldea I is 'sound, and we do not modify it in this decision.' The problem was that

Moldea I '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 . . . that are capable of a number of rational

interpretations.' On reconsideration, Edwards declared, he and his two colleagues now

held that 'as a matter of law' the Times review . . . was 'substantially true'

" . . . The chief problem with the flip-flop is that the 'generally correct' statement of

the law of defamation in Moldea I specifically recognized that the Supreme Court in

Milkovich v. Lorain Journal . . . ruled that the genre in which a defamatory statement

appears is irrelevant to its accountability. Moldea II's adoption of the analysis suggested

in the Times's brief on the petition to rehear—that libel suits against criticism should go

forward 'only when the interpretations are unsupportable by reference to the written

work'—differed so much in tone and approach from the aggressive, pro-little-guy

sound of Moldea I that it seemed to come from either a completely different judge (with

the same name), or at least a completely different law clerk. . .

"Having made a thorough mess of things so far, Edwards and Wald should resist

taking a third crack at the case in response to Moldea's own likely petition for

rehearing. But as it stands—or wobbles—Moldea II smells as bad as any D.C. Appeals

Court case in memory." (The Nation; June 6, 1994)

"The decision turned on the issue of whether opinion writing, such as the

unfavorable criticism of Mr. Moldea's book, should be governed by the same legal

standard as news writing. . . [Y]esterday those same three judges . . . ruled that although

book reviews and other forms of criticism were not exempt from libel law, critics must

have 'the constitutional "breathing space" appropriate to the genre'" (New York Times;

Tamar Lewin; May 4, 1994)

"Even if a reviewer is trying to damage an author's reputation, there may be nothing

the courts can do about it, 'at least not without unacceptably interfering with free

speech,' Judge Edwards asserted15 . . .

"Judge Edwards's original decision had provoked emotional attacks by reviewers,

publishers and media companies, who accused him of endangering constitutionally

protected free speech . . .

"In yesterday's opinion, Judge Edwards went so far as to adopt the Times's proposal

of a legal standard that would provide critical works with a broad shield against libel

suits."

(Wall Street Journal; May 4, 1994)

"'I am amazed,' said Prof. Rodney Smolla . . . 'I've never heard of one [a judge

reversing himself] like that in my life. I have heard of circuit conflicts [within an

appeals court] but not an interpersonality split in one judge,' he joked." (Los Angeles

Times; May 4, 1994)

"With the latest decision, the appeals court judges 'have declared open season on

unchecked criticism on authors and their published works,' Moldea said . . .

"[Roger Simmons] said . . . the second decision 'allows and permits maliciously false

book reviews to be published without recourse. That acknowledgment is a very

chilling statement of the law as created by the second Moldea opinion.

"'What it means is that a book reviewer can deliberately set about to misstate the

contents of a book and the character of a writer by making deliberate misstatements of

fact without recourse,' Simmons continued . . .

"In addition, he said the deluge of strong editorial opinions after the first Moldea

appeals opinion showed it did not dampen the spirit of opinion writers." (Editor &

Publisher; May 21, 1994)

"As with most complex litigation, it would take a lifetime to disentangle every

contested element of Moldea v. New York Times. But despite the reflex posturing of big

media organizations praising Moldea II as a victory for freedom of speech, it's actually

the opposite. It's a victory not for working journalists, authors and critics who thrive on

debating issues and interpretations but for corporate media managers who want to

squelch criticism of what they publish, escape tightening their standards to eliminate

shoddy reviewing, evade questioning of the judgment of their critics, avoid paying for

their mistakes as other corporate managers must and, above all, prevent ordinary

Americans—the members of a jury—from getting a look at their practices." (The

Nation; June 6, 1994)

"Moldea is no public official, not even a 'public figure' also subject to the knowing or

reckless falsity standard.16

"Nevertheless, the Court of Appeals put a burden of proof on Moldea that is quite

analogous to the New York Times v. Sullivan standard—and equally as difficult, perhaps

impossible, to meet.

" . . . In its opinion issued on May 3, 1994, the court announced a new constitutional

test for whether a book review could be subject to a defamation suit: No work of

commentary is actionable unless its interpretations of the book 'are unsupportable by

reference to the written work.' It is not enough that some reasonable jurors could find

the review's interpretations of the book to be factually false; the plaintiff must show that

'no reasonable person could find that the review's characterizations were supportable

interpretations' of the book.

"In other words, as long as the court can imagine that there are some reasonable

people (i.e. federal judges) who might agree with the reviewer's interpretation of the

book—or if not agree at least find the reviewer's characterizations 'supportable'—then

no suit can be brought. Why? Because the review is thus 'substantially true' as a matter

of law.

"The court toyed in its opinion with the notion that an accusation of 'sloppy

journalism' might not be 'sufficiently verifiable to be actionable in defamation.'

Ultimately, though, it decided not to travel down this traditional common-law path of

truth versus opinion. The court instead wandered down the constitutional path of First

Amendment 'breathing space.'

"And thus the court delivered the unkindest cut to Dan Moldea: he was kicked out

of court not because the review was opinion and thus could never be proven false, but

because three judges who never faced the plaintiff in a courtroom, who did nothing

more than read a book review and a bunch of lawyers' briefs, have decided that the

review was 'substantially true.'

"Applying this same legal reasoning to any other kind of tort case would raise howls

of protest. The court, after all, has neatly reversed the classic summary judgment

standard: it has held that the plaintiff is entitled to go to the jury only if no reasonable

juror, viewing the facts in the light most favorable to the defendant ('supportable

interpretation'), could find for the defendant.

"Dan Moldea might ask: So what's the point of my Seventh Amendment right to a

jury trial if I get to go to the jury only when the judge says no juror could find for my

opponent?

"Good question, Dan." (Washington Lawyer; Patrick A. Malone;

September/October 1994)

"[F]ormulating a position on Moldea v. New York Times that actually encourages

robust debate rather than one that merely aligns itself with traditional free-expression

reflexes requires abandoning knee-jerk loyalty to the Times for its First Amendment

deeds over the years . . .

"Once that's done, the Times victory in Moldea II seems less triumphant. The unholy

mess of Moldea v. New York Times, in which Moldea fights for the right to answer an

attack on his book and the Times hides behind the First Amendment while suppressing

his voice, developed because of a fundamental division at the heart of The New York

Times." (The Nation; June 20, 1994)

Was Media Pressure a Factor for the Reversal?

"[B]ook 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. Those forces, Mr. Moldea believes, brought about the sharp

legal reversal. 'A journalist asked me how I felt after we won the first round in

February, and I said we were about to see a demonstration of raw power in America

coming at us like a rifle shot,' Mr. Moldea recalled." (New York Observer; May 16, 1994)

"'These judges spent over six months reviewing the case history as well as my

book,'[Moldea] said. '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.'"17 (New York Times; May 4, 1994)

"Even some detractors of the original opinion agreed with Mr. Moldea's assessment.

'This extraordinary reversal suggests the power of big media when they gang up on a

single writer,' said Carlin Romano, president of the National Book Critics Circle and

literary critic for the Philadelphia Inquirer." (Wall Street Journal; May 4, 1994)

"'This is impossible to understand,' said College of William and Mary law professor

Rodney Smolla, an expert on the First Amendment. The first time around, he noted,

Chief Judge Abner Mikva had strongly dissented, which means 'they argued this out,

thought this out, thrashed it out . . . It's inexplicable.’" (Washington Post; May 4, 1994)

"In response [to Edwards's original written opinion], critics and columnists dealt

Edwards plenty of harsh criticism and at least a few accusations of incompetence. For

example, columnist James J. Kilpatrick slammed the decision but conceded that he was

thinking twice about 'what I myself write about fat-headed federal judges.'" (Los

Angeles Times; May 4, 1994)

"[T]he possibility that Edwards and Wald succumbed to media pressure, expressed

both in print and on the inside-the-Beltway dinner circuit, can't be ignored . . .

"Did Wald, a 65-year-old former assistant attorney general frequently mentioned as a

candidate for high posts in the Clinton Administration, really have nothing to say in

Moldea II to explain her own about-face? Was she simply trying to escape responsibility

for the Moldea I firestorm?

"Only the judges know." (The Nation; June 6, 1994)

"[T]he sheer rarity of a reversal by the D.C. Circuit Court of Appeals, dismissing [the]

controversial lawsuit . . . continued to reverberate yesterday.

"'It was and is the talk' of the law firms, said Kenneth W. Starr, a former appeals

court judge and former solicitor general, now in private practice . . .

"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 them 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' . . .18

"Others were not as generous. A libel lawyer who spoke on the condition of

anonymity attributed the reversal to the 'firestorm of public criticism that the earlier

decision received.'

"Separately, Columbia Law Prof. Kent Greenwalt said, 'We could talk about

conscious and unconscious levels of response to public reaction. I think well enough of

Edwards and Wald to rule out the possibility they said to themselves, "I think my

decision was right the first time, but now that I'm going to be embarrassed and attacked

I'm going to change my mind." But it's possible to be influenced unconsciously.'"

(Washington Post; May 5, 1994)

"[Kenneth] Starr's surprise appointment as Whitewater prosecutor—despite zero

prosecutorial experience and Republican political activism that should disqualify him—

only confirms that cronyism operates in the Court of Appeals as much as elsewhere in

the government. That career move, like the appointment to White House counsel of

Chief Judge Abner Mikva—the sole dissenter in Moldea I who carried the day in Moldea

II—should remind us that many American judges are simply a different species of

politician. They should be subject to the same skeptical questions we toss at legislators

and administrators." (The Nation; Carlin Romano; September 5-12, 1994)

Misleading Statements About the Appellate Reversal

"In a decision that was closely watched by the journalism world, the federal Court of

Appeals for the District of Columbia, sitting en banc, reversed a decision that found a

New York Times Book Review actionable as libel." (ABA Journal; July 1994)

"Book critics in America breathed a sigh of relief yesterday after the United States

Court of Appeals ruled that they could write bad reviews." (Daily Telegraph; Hugh

Davies; May 5, 1994)

"The initial 2-1 libel decision handed down 10 weeks ago . . . sent shock waves

through the criticism community, which argued that if the ruling were allowed to

stand, critics could kiss goodbye their right to trash books and movies." (Daily Variety;

Dennis Wharton; May 5, 1994)

"Just as protection of speech is justified by the need for full and vigorous debate over

government policy, it is similarly justified by the need for debate in the country's

cultural life. The public at large—in this case, the people who buy books—benefits from

the opinions of critics and the continuous controversy over standards. Judge Edwards's

second thoughts defend the interests not only of the reviewer but, much more

important, the reader." (Washington Post; editorial; May 5, 1994)

"The Court of Appeals judges have rebounded with sensitivity, and with courage,

given the difficulty of changing judicial minds. The whole society, freer to speak and

argue about matters of public concern, is the winner." (New York Times; editorial; May

7, 1994)19

"The judges' initial decision would have had opinion writers throughout the country

looking over their shoulders with a mixture of fear and loathing every time they sat

down to work. For the United States to remain free requires an unfettered press. That

includes the ability to express strong, clear opinions without fear of retribution. It is

one of the basic tenets on which this country was founded, the very first amendment to

the Constitution." (St. Petersburg Times; editorial; May 6, 1994)

"The ruling should help safeguard the right of free expression. While Moldea plans

to appeal the ruling to the U.S. Supreme Court, for the panel not to have reversed itself

would have had a serious chilling effect on opinion and commentary in America."

(Houston Chronicle; editorial; May 13, 1994)

"Despite the power of a Times review to ruin a book, we regard Moldea's libel claim

as a greater danger to free expression . . . If the general accusation of 'sloppy journalism'

in a book review can be punished by a court, practitioners of political and cultural

commentary—as well as investigative reporters like Moldea—might as well unplug

their computers." (The Nation; editorial; June 6, 1994)

"A little more than 10 weeks after issuing a decision that severely restricted the First

Amendment rights of journalists to publish their opinions, the court changed its mind

and struck a dramatic blow for free expression."20 (American Journalism Review; Lee

Levine; July/August 1994)

"True, Mr. Moldea may have lost many buyers as a result of The Times' devastating

critique of his book. But that's part of the price he pays for living in a society that prizes

his right to write a freewheeling account of life in the National Football League. A

writer like Mr. Moldea should understand the need to protect an occasionally erroneous

account. I'm glad the D.C. Circuit got the point, even if Moldea didn't." (The Recorder;

Karl Olson; May 25, 1994)

The Judges' Comments on the Reversal

"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 them 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' . . . " (Washington Post; May 5, 1994)

"Bar Report: One case that received a lot of media attention recently was Moldea v.

New York Times, in which the plaintiff alleged he'd been libeled in a review of his book.

The outcome was confusing because you and Judge Edwards voted in favor of the

plaintiff for a 2-1 ruling and then you both reversed yourselves. Can you explain what

happened?

"Judge Patricia Wald: That was quite a close case. Judge Edwards had the

assignment and I thought his opinion was supportable and we made our ruling. Then

we received an extremely vigorous petition for rehearing. The purpose of a petition for

a rehearing is to draw the court's attention to things it didn't do right. Upon looking

carefully into it, Judge Edwards felt we'd made a mistake. I agreed with him and we

changed the decision.

"Believe it or not, we do grant a number of petitions for rehearing and we do change

decisions every year. Because the press gives heavy coverage to press cases this was

labeled 'unprecedented'—even though it wasn't unprecedented at all.21 Now when you

reverse yourself in a highly publicized case like that you know you're going to get a lot

of flak—and that's what we got.

"Bar Report: Does the criticism bother you?

"Judge Patricia Wald: Not really. Nobody likes it. But the only time it gets to you is

if you think you've done something wrong. The important thing is to get it right—even

if that means admitting you made a mistake. That's what we did in this case. I knew

we were going to get pilloried, but we lasted it out, and we moved on. That's what life

tenure is all about." (Bar Report, Tim Wells; April/May 1995)

The Road to the U.S. Supreme Court

"Moldea's attorney, Roger Simmons, said although no final decision had been made,

they likely will petition the Supreme Court for a hearing rather than ask the appeals

court for an en banc review.

"Even if they won after a full appeals court review, Simmons explained, the Times

likely would appeal to the Supreme Court, delaying resolution further.

"Simmons thinks the case is a good one for the High Court because of the indecision

evident in the appeals court and to clarify how the court's Milkovich and Masson

decisions should be applied." (Editor & Publisher; May 21, 1994)

"Moldea can now either return to the Court of Appeals with a request for an en banc

hearing before the full panel of judges or take the case directly to the Supreme Court.

'Bet heavily that we will be going to the Supreme Court,' Moldea said." (Independent

Writer; Rosemary Lally; June 1994)

"Eventually, will the Supreme Court, which chooses a finite number of cases among

hundreds of annual petitions, hear Moldea vs. the New York Times? Mr. Simmons says

yes without hesitation.

"'When Dan first walked into the office, I looked at my law partner, and we all

agreed that this case is going to the Supreme Court,' he says. 'I've always viewed this as

one for the Supreme Court because it involves a balancing of writers' rights and the

right to criticize.'"

(Washington Times; May 9, 1994)

"If the Moldea decision sticks—Moldea's expected to seek a Supreme Court review—

it might well take its place alongside Sullivan and the Pentagon Papers case as a

cornerstone of our nation's commitment to a free press." (American Journalism Review;

July/August 1994)

"Martin Garbus . . . an expert on publishing law, told PW this kind of reversal was

'extremely rare.' He credited the reversal to the publishing community's outcry at the

February decision, and noted, 'Nothing has changed except the response from the

publishing community.' However, Garbus said, 'Moldea is likely to appeal to the

Supreme Court and 'I think the court is likely to accept the case. Moldea's arguments

are consistent with recent Supreme Court decisions—decisions that I think are wrong.'"

(Publishers Weekly; Howard Fields; May 9, 1994)

"By the time the U.S. Supreme Court has finished with this case, the principle of

reviewer responsibility to the facts will be somewhat better established in law than it

now is, to the discomfiture of many, while the concrete likelihood of proving serious

damage as a result of even grievous reviewer irresponsibility will be only moderately

enhanced.

"Surprisingly, it may be the humble letters department that will end up saving book

reviewing from death by lawsuit." (NBCC Journal; Jack Miles; August 1994)

The Supreme Court Petition

"Attorneys for author Dan E. Moldea petitioned the United States Supreme Court on

August 1, 1994, requesting a review of his four-year libel suit against The New York

Times." (Independent Writer; no byline; September 1994)

"In a release announcing his petition for certiorari, Moldea stated, 'Whether we win

or lose, my attorneys have given me a great fight for a worthwhile cause—trying 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, and I firmly believe that the Supreme Court will hear our case.'"

(Editor & Publisher; no byline; August 27, 1994)

Proposed Settlement

"[T]he solution in Moldea itself would pressure the Times to offer a journalistic

handshake to Moldea. Even now [after the appellate reversal]—perhaps especially

now, when the Times has the upper hand—the ideal resolution of Moldea v. New York

Times would be a settlement that included [an] Editor's Note from the Times apologizing

for being less than its best self in denying Moldea his right to reply, publication of a

letter from Moldea and payment of court costs." (The Nation; June 20, 1994)

Miscellaneous Issues

"The legal contest has spawned hundreds of articles . . . The legal findings are

fascinating. Moldea's Aug. 23, 1990, lawsuit, followed by thousands of pages of

documents from both parties, is on file at the U.S. District Court in Washington, D.C.

The trial court's opinion appears in the law reports at 793 F.Supp.335; it can be found at

law libraries or on computer databases covering the courts, such as Lexis and Westlaw.

The U.S. Court of Appeals for the District of Columbia's first opinion can be found at 15

F.3rd 1137. The appellate court later modified that opinion.

"As part of the lawsuit, Moldea and his lawyers, in May 1994, made available a

chronology of events based on media coverage of the case. For those deeply interested

in the case, the chronology is a good guide." (NBCC Journal; Steve Weinberg; August

1994)

"[W]hile 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 . . .

"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 . . .

"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." (The Nation; June 6, 1994)

"Moldea also contends that the Times should be required to accurately identify the

biases and credentials of its 'neutral' reviewers, ensure that its reviewers actually read

the books they review, and insist that its editors fact-check reviews against the books

under review. Where errors of verifiable fact are made, Moldea's suit argues that the

Times should give an author the opportunity for a rebuttal." (Washington Post; Roger

C. Simmons; March 23, 1994)

"The U.S. Court of Appeals' decision was a stunner. Journalists and publishers said it

would erode the First Amendment, opening nearly all opinion to lawsuits and chilling

critics' sharp reviews into bland accounts. Book writers hailed it as a way to finally

hold big-media book reviewers accountable. And author Dan Moldea planned for his

day in court, where he could finally bring his libel claim against The New York Times,

who, he says, ruined his writing career by misportraying his book.

"That was February.

"In an equally stunning reversal 10 weeks later, the appeals court in Washington,

D.C., dismissed Moldea's libel claim. Now, as Moldea petitions the Supreme Court to

hear his case, followers of the First Amendment wait to see if the Times' victory will

stand. The court is expected to announce this month whether it will take up Moldea vs.

The New York Times

"Moldea, an investigative author . . . says he's fighting to make opinion writers

accountable for what they publish. He says he's been unfairly portrayed as a 'thin-

skinned author with a wounded ego,' who would take away the right of writers to

freely express their opinions. Moldea says editorial writers and columnists have

misrepresented the case and many in the journalism community, including SPJ [Society

of Professional Journalists], have distorted or ignored his side of the issue.

"The high-stakes fight leaves the First Amendment caught in the middle. 'It's like

we're playing a game of chicken,' Moldea says. 'It's like we're two teen-agers in fast

cars, driving toward the edge of a cliff, waiting to see who's going to jump out first.

Who's going to be the winner?'

"Still, Moldea says he's prepared to take his fight as far as it will go. 'Our strategy all

along has been: if The New York Times pulls out a knife, we pull out a gun,' he says. 'If

they pull out a gun, we pull out a cannon.'

"Although Moldea has become an enemy to many in the journalism community, the

book world—including some book reviewers—has offered support. Some even see it as

an opportunity to hold powerful media companies accountable for malicious and

inaccurate reviews, which can break a new book." (Quill; Jamie Prime; October 1994)

The U.S. Supreme Court Refuses to Hear Any New Cases

"Acting on a libel lawsuit against The New York Times, the Supreme Court yesterday

let stand a ruling in favor of The Times that gave a book review wider latitude than that

given to a news article

"The decision, which came without comment, let stand an opinion in May by the

United States Court of Appeals for the District of Columbia Circuit. The case attracted

wide attention when the appeals court first ruled for Mr. Moldea in February and then

reversed itself and ruled for The Times in May. The two opinions took different views of

the way a court should review an author's claim of having been libeled in a review

"'I have been convicted and sentenced to death professionally without a trial,'

[Moldea] said yesterday." (New York Times; William Glaberson; October 4, 1995)

"Dan Moldea had his final day in court yesterday, and it wasn't a happy one. The

Supreme Court declined to review the author's libel lawsuit against the New York Times,

putting an end to Moldea's five-year battle for vindication

"'Now I have to get a life,' the writer said yesterday. His career has rebounded; he is

publishing a book in the spring on the police investigation into the murder of Robert

Kennedy. Presumably, the Times will review it.

"'I'm sure they'll be very fair,' Moldea said."22 (Washington Post; October 4, 1994)

Analysis in the Immediate Wake of the Supreme Court's Decision

"Moldea's claim was that errors made by the reviewer amounted to libel against the

author. In fact, the review did contain some errors; Moldea did have some valid points.

The Court of Appeals first ruled that the errors in the review could constitute libel. But

then, months later, the court, to general amazement, reversed its decision, stating that it

had 'failed to take sufficient account of the fact that the statements at issue appeared in

the context of a book review . . .'

"Was this distinction raised by the New York Times the one that persuaded the high

court, or was it something else? At this point, we do not know. The Moldea case was

settled without that point having been nailed down

Claiming our First Amendment

freedom to criticize legal briefs and court decisions, we suggest that the complex matter

of responsibility to fact even within the expression of opinion deserves further

attention." (Los Angeles Times; editorial; October 10, 1994)

"The book's author, Dan Moldea, argued that the reviewer's conclusions were based

on issues of fact, but that the facts were wrongly presented.

"The Times countered that reviews are protected opinion and it prevailed in the lower

courts, which eventually dismissed Moldea's claim.

"That case, [Jane] Kirtley said, 'could have had a profound impact on news

organizations to publish reviews of anything . . . [The appeals court] took a very

generous view of what opinion is when in the context of a review." (Editor &

Publisher; Debra Gersh Hernandez; January 7, 1995)

"'It's obviously a matter that we are deeply disappointed about,' noted Moldea's

attorney, Roger Simmons. 'We think the law has been left in a state of disrepair.'

"Simmons said he believes the Moldea 2 decision cannot be reconciled with Milkovich,

creating a different standard for opinion writers, which 'was what Milkovich was

supposed to wipe out . . .

"'I think it is a mistake. It will generate a lot of bad law until they take another case,'

he said. 'There's no way you can square Milkovich with Moldea 2.'

"[George] Freeman, however, said that he believes his opponents misunderstand the

Moldea 2 ruling

"The Moldea 2 opinion 'does help clarify Milkovich in the context of reviews,' Freeman

said, adding that it 'should be the death knell for any onslaught of claims by plaintiffs

suing about reviews. Not that we've seen any groundswell.'" (Editor & Publisher;

October 15, 1994)

Misleading Statements About the Supreme Court's Inaction

"Reacting to yesterday's high court action, Henry Hoberman, outside counsel for the

Times, said that 'opinion writers and commentators are now safe from would-be censors

and opinion police like Dan Moldea." (Washington Post; October 4, 1994)

"[T]he court wisely left undisturbed a U.S. Court of Appeals ruling dismissing a libel

action filed by a writer who objected to a New York Times review of his book. This case

has an unusual history since a three-judge panel of the court originally found in the

writer's favor and later changed its opinion. But the ruling that now stands is the right

one. Allowing libel suits to be filed over a difference of opinion would make any

published appraisal of literature, art or public events impossible." (Washington Post;

editorial; October 9, 1994)

"Earlier this month, the Supreme Court denied Moldea's petition for certiorari, and

thus left standing the 'supportable interpretation' test. Although successful claims

remain unlikely in the D.C. Circuit and in other jurisdictions that choose to follow

Moldea II, its new standard of review could pose problems for publishers. Since reviews

as a genre may no longer be given blanket protection, publishers will be confronted

with the problem of identifying reviews which may require legal review prior to

publication. Moreover, since Moldea II may require a detailed textual analysis of all

factual implications, there is the possibility that more claims may be asserted, increasing

defense time and cost." (Publishers Weekly, Henry L. Kaufman and Michael Cantwell;

October 24, 1994)

A Final Word

"[Roger] Simmons believes, 'If we achieved anything, perhaps we raised the level of

consciousness about what standards apply to reviewing. Everyone would have

benefitted' from a Supreme Court decision in either direction that clarified the issue of

protection for opinion writing.

"Pointing out that Moldea never had the benefit of a trial or full discovery, Simmons

said his client, 'is one of the most courageous people I have ever worked with. He had

the guts to stand up and take on the people who determine who succeeds in his

profession.'

" . . . Moldea commented that he is 'not bitter about anything. I have a lot of respect

Endnotes

¹ "[N]o libel suits were either threatened or filed against Interference. No source quoted in the book denied

the accuracy of his or her quote." (Los Angeles Times; Dan E. Moldea; May 29, 1994)

² "I retained an attorney who called the Times' chief in-house counsel and asked for a correction. The Times

refused. It is worth noting that two years earlier in April, 1987, the Times had been forced to print a

correction regarding a previous review of my work." [The Times attorney who handled the 1987 matter was

David Thurm.] (Los Angeles Times; Dan E. Moldea; May 29, 1994)

³ "'I'm not cutting back on the First Amendment at all; I see this as more of an economic issue,' [Simmons]

says. 'You have a very limited number of people controlling what may be said in the print medium today. If

those people are going to have that kind of power and control over the marketplace, they should be required

to exercise it evenhandedly and fairly.'" (Washington Times; May 9, 1994)

"Last July, he got a $75,000 contract with Norton & Co. to write a book about the killing of Robert

Kennedy." (Wall Street Journal; April 7, 1994)

"[N]early half of Streitfeld's story quoted three 'First Amendment' attorneys who were implicitly

represented as neutral observers in my case. One of the attorneys, Henry R. Kaufman, the general counsel of

the Libel Defense Resource Center, gave a broad, clearly objective response. The other two attorneys quoted,

Bruce Sanford and Floyd Abrams, trivialized the merits of my case. However, Streitfeld did not indicate

anywhere in his story that . . . Sanford and Abrams were both outside counsels for New York Times and that

Sanford had been selected as the lead counsel for the Times in my particular case." [Also, both Kaufman and

the Libel Defense Resource Center, are funded, in part, by the New York Times.]

(Letter from Moldea to

Leonard Downie, managing editor of The Washington Post; June 20, 1991)

⁶ "The review [also] cited three misspelled names of sports figures [in Interference] . . . Moldea acknowledges

the three misspelled names . . . [H]e took the spellings from stories in the Washington Post and the Los Angeles

Times." (New York Magazine; April 18, 1994)

⁷ Moldea now agrees with Simmons. "The term 'sloppy journalism' in a vacuum 'is just a statement of

opinion,' Moldea noted. But when 'you base it on facts, and those examples are wrong, then the term sloppy

journalism itself becomes a libelous statement because it's based on provable [false] facts."

(Editor &

Publisher; Debra Gersh Hernandez; May 21, 1994)

⁸ "Speaking for the court of appeals, Judge Edwards said: 'We certainly do not mean to suggest that all bad

reviews are actionable. We do hold, however, that assertions that would otherwise be actionable in

defamation are not transmogrified into nonactionable statements when they appear in the context of a book

review.'" (Washington Post; Roger C. Simmons; March 23, 1994)

⁹ "[Moldea's] complaint argues for honesty and accuracy in opinion writing—something that has long been

mandatory in news reporting. It was filed only after the Times explicitly refused both to print a correction

and to publish any rebuttal letter regarding its review of Moldea's book.

"Contrary to the image the [media have] projected, Moldea is not an assault on the foundations of the

'marketplace of ideas.' It is, however, a demand for opinion writers and reviewers to take a few basic steps

to get their facts straight." (Washington Post; Roger C. Simmons; March 23, 1994)

¹⁰ None of the listed writers bothered to contact either Moldea or his attorneys prior to writing their news

articles, editorials, op-ed pieces, and/or columns.

¹¹ Despite the apocalyptic tone of this op-ed piece by Francine Fialkoff, the executive editor of Library

Journal, she went on to write: "At the recent Public Library Association meeting in Atlanta in late March,

Michael Sawyer, director of the Clinton Public Library (IA), asked what impact the Moldea ruling would

have on LJ. None, I told Sawyer."

¹² "On May 2, the day before handing down Moldea II, the Court of Appeals issued an order denying

permission for the two pro-Times amicus briefs to be filed. If not for that move, Moldea would have had a

legal right to reply to them. Plainly, the court wasn't interested in giving him the opportunity. The court

was so abrupt to issue Moldea II that the order denying the pro-Times amicus briefs reached Moldea's

attorney on the day after Moldea II was announced. Did Edwards, Wald or any of their clerks read the pro-

Times amicus briefs?" (The Nation; Carlin Romano; June 6, 1994)

"Actually, the procedural situation was even more irregular than I described, and [PEN-AAP amicus

authors/attorneys Leon] Friedman and [R. Bruce] Rich have their facts wrong when they write that Moldea's

lawyers 'did in fact respond to the new arguments made by the Times and the amici.' According to Roger

Simmons, Moldea's chief attorney, a clerk for the Court of Appeals phoned his office before the Moldea legal

team filed its reply to the Times's motion for rehearing and instructed Moldea's team not to address either of

the amicus briefs in its response." (The Nation; Carlin Romano; September 5-12, 1994)

"The legal community continued to buzz when, on the following day, the court, without comment,

announced that it had not accepted two amicus briefs filed earlier for other publishing organizations on

behalf of the Times—even though one was from the judges' former colleague, Kenneth Starr. That move

makes it look like the judges were not swayed by outside influences, as some critics had charged. 'It's

strange, I grant you,' says R. Bruce Rich, a partner at New York's Weil, Gotshal & Manges, who filed the

other brief. While court rules discourage the filing of amicus briefs on motions for rehearing, judges

customarily read the briefs before deciding whether to allow them. 'My view is that the position of the

numerous amici were in fact heard by the panel and, indeed, by the full court,' says Starr, a partner in the

D.C. office of Chicago's Kirkland & Ellis. 'Our mission was fully accomplished, and the court's rules were

fully vindicated.'" (Legal Times; no byline; May 9, 1994)

¹³ "The N.B.C.C. declined to do so after a subcommittee of three board members—this writer, San Francisco

Chronicle book editor Pat Holt and former Los Angeles Times book editor Jack Miles—could not agree on their

recommendation to the organization." (The Nation; Carlin Romano; June 6, 1994)

¹⁴ "Sinkler also wrote to Miles in February 1992, sending him Judge Penn's decision and inviting him to call

her to discuss the Times's handling of the review. According to a February 21 letter from Miles, he spoke to

her that day and Sinkler said she considered the charges in Moldea's letter groundless and decided not to

publish it. 'She stresses,' Miles wrote, 'that they strive to protect reviewers from reckless or unjustified

charges by aggrieved authors even as they strive to protect authors from reviewers who may have misled

the Book Review about, e.g., a prior relationship.'" (The Nation; June 6, 1994)

¹⁵ "In effect, the appellate court, in its virtually unprecedented act, created an exemption from libel for

opinion writers when they engage in 'mischievous intent,' as the court now calls it. News reporters and

nonfiction authors have no such exemption and continue to be held to a 'malice' standard."

(Los Angeles

Times; Dan E. Moldea; May 29, 1994)

¹⁶ "Before Moldea can win his case, it will have to be determined if he is a public figure. If he is, he will have

to prove the review was written with malice—an eventuality he said he was prepared for."

(Washington

Post; February 19, 1994)

¹⁷ "Washington attorney Bruce Sanford, who represents the Times in this case . . . said he does not believe

there is any evidence to support Moldea's charges that the reversal was influenced by the media . . .

"'I think it's a bit insulting to suggest somehow that these judges are particularly susceptible to criticism by

the media,' he added . . .

"Times senior attorney George Freeman . . . also said he thought it was 'inappropriate' to accuse the court

of bowing to media influence 'in that it undermines the integrity and courage of the judges' sitting on the

'second most important court in the country.'" (Editor & Publisher; May 21, 1994)

¹⁸ Five years after the decision, Mikva was even clearer, saying: "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." (Legal Times; Abner Mikva; June 14, 1999)

¹⁹ "The Times hailed the reversal in a May 7, 1994 editorial, but, true to its previous pattern, it did not print

Moldea's response to that editorial." (Authors Guild Bulletin; Kay Murray; Summer 1994)

"Having refused for years to publish a letter from Moldea defending his book, [The Times] recently refused

to publish an Op-Ed piece by him, responding to the paper's May 7 editorial crowing about Moldea II." (The

Nation; June 20, 1994)

"In a May 7 editorial, The New York Times 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.'

"Again, the Times' failure to publish my letter to the editor in response to a false and misleading review of

Interference—as well as my reply to its May 7 editorial—have denied me the opportunity to participate in

'spirited argument.'

"This is not journalism; this is corporate tyranny." (Los Angeles Times; Dan E. Moldea; May 29, 1994)

²⁰ In response to Levine's piece, the American Journalism Review published a letter to the editor, which stated:

"I wasn't really surprised to find AJR publishing a piece of conventional wisdom, written by 'a media defense

lawyer' (translation please?), alleging a dire threat to the First Amendment posed by Moldea's suit, although

I would've thought it far more clever on your part to at least allow the plaintiff, albeit a mere scribe, a

rebuttal . . . In short, what if Moldea is right on the main points and the New York Times wrong? Would

AJR's applause for the court's ruling then be so loud?" (American Journalism Review; Jeff Stein; September

1994)

²¹ Clearly, Wald is misrepresenting the events of this case. Indeed, the Times did petition the appellate court

for a rehearing, and, indeed, the court occasionally grants such rehearings and, in some rare instances,

reverses earlier rulings. However, in Moldea v. New York Times, as Wald fully realizes, there was no

rehearing. The reversal of the three-judge appellate panel's own February 18 decision in this case is and

remains unprecedented—regardless of Wald's protests to the contrary.

²² "A rave review by The New York Times' venerated book reviewer Christopher Lehmann-Haupt is every

author's dream. But are your chances even better if you've brought a lawsuit against The Times for their last

review of one of your books?

"On Thursday, May 25, The New York Times published a highly favorable review, by Mr. Lehmann-Haupt,

of Dan E. Moldea's The Killing of Robert F. Kennedy: An Investigation of Motive, Means and Opportunity. The

book, Mr. Lehmann-Haupt wrote, was 'carefully reasoned and ultimately persuasive'; Mr. Moldea's

'dramatic account . . . brings the point of dispute into sharper focus, leading the reader to believe that the

author is on the verge of a major discovery.' Mr. Lehmann-Haupt concluded: '[H]is book should be read,

not so much for the irrefutability of its conclusions as for the way the author has brought order out of a

chaotic tale and turned an appalling tatter of history into an emblem of our misshapen Times.'

"' . . . I thought it was a real classy deed for both Christopher Lehmann-Haupt and The Times to do,' Mr.

Moldea told The Observer. 'Sometimes when you're reviewed, you get a real pro and other Times you get a

shill for the institution you're writing about. The last time I got a shill, this time I got a pro.'

"Said Mr. Lehmann-Haupt: 'I just sort of put my head in the sand and tried to judge the book on its own

merits. That to me is the job of a good reviewer.'" (New York Observer, Alex Kuczynski; June 5, 1995)

The New York Times Book Review ran a second favorable review of Moldea's book on Sunday, June 18, 1995.

Bibliography

(*) source cited

ABA Journal, no byline; July 1994*

Akron Beacon Journal, Steve Love; April 19, 1994*

American Journalism Review, Lyle Denniston; May 1994

American Journalism Review, Reese Cleghorn; July/August 1994*

American Journalism Review, Lee Levine; July/August 1994*

American Journalism Review, Jeff Stein; September 1994*

American Journalism Review, Jack Miles; October 1994*

Arizona Republic, Steve Wilson; May 5, 1994

Associated Press, no byline; August 24, 1990

Associated Press, Laurie Asseo; February 1, 1992*

Associated Press, no byline; February 18, 1994

Associated Press, David Morris; May 3, 1994*

Associated Press, Richard Carelli; October 3, 1994

Atlanta Journal and Constitution, editorial; May 7, 1994

Authors Guild Bulletin, Marla A. Pallante; Spring-Summer 1991

Authors Guild Bulletin, Kay Murray; Summer 1994*

Baltimore Evening Sun, Robert D. Richards; October 9, 1990

Bar Report, Tim Wells; April/May 1995

Boston Globe, editorial; April 18, 1994*

Boston Globe, Dan E. Moldea; May 12, 1994

Chicago Tribune, Steve Weinberg; September 21, 1997

Christian Science Monitor, David Holmstrom; March 1, 1994*

Cincinnati Enquirer, James J. Kilpatrick; April 26, 1994*

City Paper, Ken Cummins; November 15, 1991

City Paper, Randall Bloomquist; April 3, 1992.

Civilization, Rebecca Pepper Sinkler; July/August 1995

Columbia Journalism Review, Steve Weinberg; March/April 1990*

Columbia Journalism Review, Cynthia Fox; May/June 1992

Columbia Journalism Review, Christopher Hanson; May/June 1994*

Communications & the Law, George Freeman; December 1995*

Daily Telegraph, Hugh Davies; May 5, 1994*

Daily Variety, Martin Garbus; April 11, 1994*

Daily Variety, Dennis Wharton; May 5, 1994*

Editor & Publisher, Debra Gersh; September 8, 1990*

Editor & Publisher, Dan E. Moldea; July 20, 1991

Editor & Publisher, Debra Gersh; February 8, 1992

Editor & Publisher, Debra Gersh; October 24, 1992

Editor & Publisher, Debra Gersh; July 10, 1993*

Editor & Publisher, Debra Gersh Hernandez; March 19, 1994*

Editor & Publisher, Debra Gersh Hernandez; April 23, 1994*

Editor & Publisher, editorial; May 14, 1994

Editor & Publisher, Debra Gersh Hernandez; May 21, 1994*

Editor & Publisher, no byline; August 27, 1994*

Editor & Publisher, Debra Gersh Hernandez; October 15, 1994*

Editor & Publisher, Debra Gersh Hernandez; January 7, 1995*

Entertainment Law & Finance, Stan Soocher; April 1994*

Entertainment Law Reporter, no byline; October 1994

Financial Times (London), no byline, October 4, 1994

Hollywood Reporter, no byline; February 25-27, 1994

Hollywood Reporter, THR E-Mail; April 25, 1994*

Houston Chronicle, Nicole B. Casarez; May 13, 1994*

Houston Chronicle, editorial; May 13, 1994*

Independent Writer, Rosemary Lally; October 1, 1990

Independent Writer, Dennis Drabelle; January 1991

Independent Writer, (DEM letter to NYT); November 1991

Independent Writer, Rosemary Lally; December 1992

Independent Writer, no byline; March 1994

Independent Writer, Rosemary Lally; April 1994*

Independent Writer, Dan E. Moldea; April 1994

Independent Writer, Rosemary Lally; June 1994*

Independent Writer, no byline; September 1994*

International Herald Tribune, no byline; October 4, 1994

L.A. Style, Keith Olbermann; January 1992*

Las Vegas Review-Journal, editorial; March 8, 1994

Lawyers Weekly USA, Ronald B. Lieber; March 14, 1994

Legal Times, William Gifford; September 24, 1990

Legal Times, no byline; September 27, 1990

Legal Times, Julie Cohen; March 7, 1994*

Legal Times, Bruce Fein; March 14, 1994*

Legal Times, Martin Garbus; March 14, 1994*

Legal Times, Bruce D. Brown; April 8, 1994

Legal Times, no byline; May 9, 1994*

Legal Times, Fred Graham; July 4, 1994

Legal Times, Abner Mikva; June 14, 1999*

Liability Week, no byline; May 9, 1994

Liability Week, no byline; October 11, 1994

Library Journal, Francine Fialkoff; May 15, 1994*

Library Journal, no byline; June 1, 1994

Los Angeles Reader, David L. Ulin; May 27, 1994

Los Angeles Times, David G. Savage; February 19, 1994*

Los Angeles Times, David Kronke; February 28, 1994*

Los Angeles Times, editorial; March 9, 1994*

Los Angeles Times, David G. Savage; May 4, 1994*

Los Angeles Times, Dan E. Moldea; May 29, 1994*

Los Angeles Times, editorial; October 10, 1994*

Los Angeles Times Book Review, Jack Miles; April 3, 1994*

The Nation, editorial, June 6, 1994*

The Nation, Carlin Romano; June 6, 1994*

The Nation, Carlin Romano; June 20, 1994*

The Nation, John Leonard; July 11, 1994*

The Nation, (Letters/Romano's reply); September 5-12, 1994*

National Book Critics Circle Journal, Jack Miles; August 1994*

National Book Critics Circle Journal, Steve Weinberg; August 1994*

National Journal, W. John Moore; December 22, 1990

National Law Journal, no byline; March 7, 1994*

National Law Journal, no byline; May 16, 1994

Newsday, Martin Garbus; March 10, 1994*

Newsday, Roger C. Simmons; March 18, 1994*

NewsInc, no byline, May 30, 1994

News Media & the Law, no byline; Winter 1991

New York, Edwin Diamond; January 10, 1994.

New York, Edwin Diamond; April 18, 1994*

New York, David Streitfeld; October 17, 1994

New York Daily News, no byline; August 29, 1990

New York Law Journal, Lawrence Savell; July 22, 1994

New York Observer, Jim Windolf; March 28, 1994*

New York Observer, Allen Barra; May 9, 1994*

New York Observer, D. T. Max; May 16, 1994*

New York Observer, Alex Kuczynski; June 5, 1995*

New York Post, Frank DiGiacomo; October 7, 1989

New York Times, (AP wire story, plus & minus); February 19, 1994

New York Times, Sarah Lyall; March 23, 1994*

New York Times, Tamar Lewin; May 4, 1994*

New York Times, editorial; May 7, 1994*

New York Times, William Glaberson; October 4, 1994*

PEN Newsletter, no byline; Summer 1994*

Providence Journal-Bulletin, editorial; May 19, 1994

Publishers Weekly, Howard Fields; September 7, 1990*

Publishers Weekly, Howard Fields; July 25, 1991

Publishers Weekly, Howard Fields; February 17, 1992

Publishers Weekly, Howard Fields; June 7, 1993*

Publishers Weekly, Howard Fields; March 7, 1994

Publishers Weekly, Martin Garbus; April 25, 1994*

Publishers Weekly, Howard Fields; May 9, 1994*

Publishers Weekly, no byline; October 24, 1994

Publishers Weekly, Henry Kaufman/Mike Cantwell; October 24, 1994*

Quill, Tony Mauro; November 1990

Quill, Lucy Dalglish; May 1994*

Quill, no byline; June 1994

Quill, Jamie Prime; October 1994*

Recorder, Karl Olson; May 25, 1994*

Reuters, Jim Vicini; February 18, 1994

Rocky Mountain News, editorial; October 5, 1994

St. Louis Post-Dispatch, editorial; May 18, 1994

St. Petersburg Times, editorial; May 6, 1994*

San Diego Union-Tribune, Gina Lubrano; May 16, 1994

Seven Arts, Dan Rottenberg; December 1994*

Small Press, Harvey Horowitz; Summer 1994

U.S. News & World Report, Ted Gest; May 16, 1994*

United States Law Week, no byline; March 1, 1994*

Universal Press Syndicate, Pete Dexter; March 2, 1994*

Village Voice, Doug Ireland; September 11, 1990*

Wall Street Journal, Paul M. Barrett; February 22, 1994*

Wall Street Journal, Paul M. Barrett; April 7, 1994*

Wall Street Journal, Paul M. Barrett; May 4, 1994*

Washington Area Lawyers for the Arts, no byline; Summer 1994

Washington Lawyer, Patrick A. Malone; September/October 1994*

Washington Post, David Streitfeld; August 24, 1990*

Washington Post, editorial; August 26, 1990*

Washington Post, David Streitfeld; February 19, 1994*

Washington Post, editorial; February 24, 1994*

Washington Post, Joann Byrd; February 27, 1994*

Washington Post, Jonathan Yardley; February 28, 1994*

Washington Post, Saundra Torry; March 7, 1994

Washington Post, editorial; March 8, 1994

Washington Post, Roger C. Simmons; March 23, 1994*

Washington Post, David Streitfeld; May 4, 1994*

Washington Post, Joan Biskupic; May 5, 1994*

Washington Post, editorial; May 5, 1994*

Washington Post, David Streitfeld; June 1, 1994

Washington Post, David Streitfeld; July 24, 1994

Washington Post, David Streitfeld; October 4, 1994*

Washington Post, editorial; October 9, 1994*

Washington Post, editorial; March 27, 1995*

Washington Times, Judith Colp; April 23, 1992*

Washington Times, Michael Richman; May 9, 1994*

Compiled by DEM