30 years ago today: The U.S. Court of Appeals ruled in my favor in "Moldea v. New York Times," a case about a lying review of my book about the NFL and the Mafia. But then. . . .
"We are about to see a demonstration of raw power come at us like a rifle shot." (DEM, February 18, 1994)
"Dan Moldea wrote perhaps the most important sports book in the history of the language." (Keith Olbermann)
The review and the fight
The reaction to my 1989 book about the NFL and the Mafia by the sports media—which I had openly criticized for its cheerleading and conflicts of interest—was so ferocious that the March/April 1990 issue of the Columbia Journalism Review published an article by legendary investigative journalist Steve Weinberg, detailing my battles with Gerald Eskenazi, who wrote what I insisted was a reckless and malicious review of my work for the New York Times Book Review.
Weinberg wrote:
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. . . .
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.
In his review, Eskenazi, an NFL beat reporter for the Times, clearly misrepresented what I wrote and didn't write in my book. He claimed that I alleged certain facts I never did, and he charged that I omitted specific facts that were clearly in the book.
In a second look at the controversy, Christopher Hanson of the Columbia Journalism Review contended:
Moldea has reason to be upset . . . [A]fter comparing what the book says with what the review says it says, one might conclude that Eskenazi was some distance from Pulitzer territory.
In The Nation, columnist John Leonard, a former editor of the New York Times Book Review, declared:
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 review of it, and if we are to deplore sloppy journalism we must admit that sloppy reviewing is one of its drearier subdivisions.
After the publication of Eskenazi’s review, I requested a retraction, then a correction, and finally the publication of my letter to the editor refuting the review.
The Times denied all my requests.
Carlin Romano, the president of the National Book Critics Circle (NBCC), the trade association for the book-reviewing community, told the Washington Post:
None of the big media outfits seem to take seriously that it may be Moldea who's on the right side of freedom of expression here. His argument—that he and authors like him have little chance to respond to book reviews in major publications—is well taken.
On August 23, 1990, my attorney, Roger Simmons, filed a $10 million libel suit against the New York Times in the U.S. District Court for the District of Columbia.
Deposition denied
On November 5, after the Times's lead outside counsel, Bruce Sanford—a talented and respected First Amendment attorney with the influential law firm, Baker & Hostetler—filed a motion with the court to stay discovery, Simmons and Sanford faced off for the first time in open court to provide their first status reports to U.S. District Judge John Garrett Penn, who had a reputation as one of the slowest judges in the federal judiciary.
At the end of the hearing, Judge Penn allowed 180 days for discovery—with the understanding that he would reconsider after seeing the Times's anticipated motion for summary judgment.
Two days later, on November 7, Simmons dropped a subpoena on Eskenazi for his sworn deposition. We were confident that Simmons, a skilled and aggressive interrogator, would annihilate Eskenazi under oath. We honestly believed that in the wake of Eskenazi’s testimony, this case would be over. We thought that the Times would beg us to settle.
As I had repeatedly told anyone who would listen, the similarities in tone and substance between the pre-publication public statements against me and my work by the NFL’s minister of propaganda, Joe Browne, and Gerald Eskenazi's subsequent lying review were incredibly striking. From the outset, I had predicted a relationship between Browne and Eskenazi—especially after I discovered Eskenazi's acknowledgment to Browne in the sportswriter's 1976 book about the New York Giants, There Were Giants in Those Days, a celebration of professional football for which Eskenazi received the full cooperation of both the NFL and the Giants' top management.
In addition, according to documents released by the Times during discovery, Eskenazi's personal calendar indicated that he had been scheduled to talk to Browne on the first day of my book tour, July 26, 1989. Soon after, Eskenazi received the assignment from the New York Times to review my book.
Also, Eskenazi had handwritten Browne's name in a margin of his personal notes about Interference, suggesting that the sportswriter had consulted with Browne prior to writing the review. In addition, Eskenazi appeared to have listed and numbered Browne's false and misleading criticisms of my book in another margin, apart from the rest of his notes. And most of these points wound up in Eskenazi's error‑filled review, suggesting that Eskenazi and Browne had actually worked together on this submission.
As all the legal maneuvering on both sides continued after the Times filed its motion for summary judgment on November 30, we prepared for Eskenazi's deposition on Thursday and Friday, December 20 and 21. Well in advance, we had our train and hotel reservations for the anticipated two‑day bloodbath—if it even went that long before the Times unconditionally surrendered.
Throughout December 19, the day before Eskenazi's day of reckoning, telephone calls and faxed documents burned up the phone lines between my attorneys and me. Roger Simmons seemed so pumped up that I thought he was ready to climb into the ring with Mike Tyson.
Then, just before 5:00 P.M.—while I was in the midst of packing my luggage—Simmons called. Badly shaken, he simply told me, "Judge Penn has just stayed all discovery. Eskenazi's deposition tomorrow has been postponed indefinitely."
Consequently, because of the notoriously slow pace of Judge Penn’s caseload, Moldea v. New York Times entered a long hiatus.
Sulzberger and DeBartolo
A year later, I had a conference call with my attorneys—Roger Simmons, Steve Trattner, and Ed Law—about Judge Penn's endless delay in ruling on the Times's motion for summary judgment. At that point, we almost didn't care which way Penn went. We just wanted our case moving again.
Regardless of how he decided, the losing side would appeal, and we assumed that, sooner or later, the case would wind up with the U.S. Supreme Court.
In order to jump‑start Judge Penn, Simmons filed a motion to lift his order to stay discovery, concentrating, in part, on a direct personal connection I had discovered and documented between Arthur Sulzberger, the publisher and chairman of the New York Times, and the mobbed‑up Edward J. DeBartolo, Sr., the owner of the San Francisco 49ers.
A Times attorney responded with fury in his January 27, 1992, opposition to our motion, stating:
Moldea makes the wholly preposterous suggestion that former New York Times publisher Arthur Ochs Sulzberger would be an important witness. His statements in support of this theory are not merely speculative, but patently false. Sulzberger has not been to a professional football game since the Giants left New York some 18 years ago, does not have any "relationships with NFL owners." . . . There neither is, nor could be, any legitimate reason for seeking discovery from Sulzberger, and the Times would vehemently resist such a transparent attempt to harass the head of the family that controls the Times.
Obviously, we disagreed with the Times lawyer, as well as with his non-denial denial that did not even address our claim. We had hard evidence of the association between Sulzberger and DeBartolo, which, indeed, had nothing to do with football. And we believed that the Times actually knew what we had.
Just four days after receiving the Times's reply, Judge Penn uncharacteristically moved quickly and shut everything down on January 31 by granting the Times's motion for summary judgment.
Officially, our case was now dismissed—and we could not have been happier.
Moldea I and Moldea II
Three days later, Roger Simmons filed our notice of appeal to the U.S. Court of Appeals for the D.C. Circuit, already realizing that nothing about our case against the powerful New York Times would be routine.
On September 14, 1993, Simmons was both magnificent and masterful during the oral arguments in front of our three-judge appellate panel: Harry Edwards, Abner Mikva, and Patricia Wald.
Here is how Roger viewed our case:
[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.
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.
On February 18, 1994, in a strongly worded ruling that rocked the legal and media communities, our appellate panel voted two-to-one to overturn Judge Penn’s lower court decision.
I knew without asking that Judge Abner Mikva—a former U.S. congressman from Chicago who was close to the powerful Korshak family—had been the dissenter, based on his statements during the oral arguments. No doubt, Mikva had completely ignored my harsh criticisms of Sidney Korshak in Interference, not to mention what I had earlier written about Korshak, one of three principal characters in my 1986 book, Dark Victory, about the Mafia in Hollywood.
Korshak, according to a series of articles in the New York Times about the mob attorney in 1976, was the link between the legitimate business world and organized crime.
Writing the majority opinion, Judge Edwards stated:
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. . . .
[I]f the Times review had said nothing more than 'Moldea's work is sloppy journalism,' this statement would be actionable because it is capable of defamatory meaning, and it reasonably can be understood to rest on provable, albeit unstated, defamatory facts."
Reporter David Savage of the Los Angeles Times observed:
[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. . . .
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.
The Legal Times noted:
[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.
Paul Barrett of the Wall Street Journal—in a long feature article, aptly headlined, "Author Who Sued Over Scornful Review Is Now Scorned by the Publishing World"—added:
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.
Media critic Edwin Diamond of New York continued:
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.
D. T. Max of the New York Observer explained:
[T]he judge found that Mr. Eskenazi, as a reviewer, had the obligation to be as factually accurate as a writer “of a hard news story” in statements affecting Mr. Moldea's reputation. Without judging the facts as such, the court . . . found that since it was probable 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. . . . “I may be crazy, but I'm not stupid,” said the author, . . . “I wasn't looking for a way to commit suicide by suing the New York Times.”
In the aftermath of defeat, George Freeman, a senior attorney for the New York Times, gave an astonishing comment to Debra Gersh of Editor & Publisher: "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."
Mercifully, the reinstatement of the case by the court of appeals brought a new phenomenon to this fight. Suddenly, real journalists—like Weinberg, Hanson, Leonard, Romano, Savage, Barrett, Diamond, Max, and Gersh, among many others—were writing about our side of the controversy.
But recognizing that this fight was far from over and realistic about what was on the horizon after our big victory, I told the Washington Post, “We are about to see a demonstration of raw power come at us like a rifle shot.” (Emphasis added)
As I predicted, the appellate court's decision touched off a firestorm of apocalyptic editorials and cataclysmic protests from outraged opinion writers and the usually docile book-chat crowd. The Wall Street Journal reported, "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.'"
An article in The Nation added, "Contributing to the pile-on tactics, both big corporate media and putative defenders of free expression strafed Moldea from the start, with little attempt to understand Moldea's side of the case."
Then, on May 3, 1994, just eleven weeks after the controversial opinion and in an unprecedented moment in American jurisprudence, the same three-judge panel—citing no new evidence or legal precedents and without another hearing—suddenly reversed itself, sided with the Times, and unanimously upheld the lower court’s dismissal of the case.
Once again writing the published opinion, Judge Edwards wrote in what he called Moldea II:
In a 2‑1 decision, the panel reversed on the ground that some of the review's characterizations of Moldea's book were potentially actionable because they were verifiable, and could not be held to be true as a matter of law. . . .
The original majority opinion was generally correct in its statement of the law of defamation. Unfortunately, that opinion 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 they understand to be the reviewer's description and assessment of texts that are capable of a number of possible rational interpretations. (Emphasis added)
“This is impossible to understand,' College of William and Mary law professor Rodney Smolla, an expert on the First Amendment, told the Washington Post. “The first time around, . . . Chief Judge Abner Mikva had strongly dissented, which means they argued this out, thought this out, thrashed it out . . . It's inexplicable."
Summarizing the court's reckless decision, the Wall Street Journal noted:
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,” [a judge] asserted.
In its own report on Moldea II, the New York Times quoted my criticism of the appellate panel. I angrily declared:
These judges spent over six months reviewing the case history as well as my book. . . . On that basis, they ruled in our favor. Since then, the only new contributions have 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.
The Washington Post also noted the shock caused by the decision and referred to my complaint about the three judges, writing:
[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'”
Five years later, Mikva would completely contradict that statement.
The Supremes say “no”
In the aftermath of Moldea II, my attorney, Roger Simmons, debated the case on Court-TV with Kenneth Starr, who wrote an amicus brief on behalf of 400 media organizations in support of the Times.
We called it “The World Amicus.” (Notably, four years later, I became embroiled in another controversy with Ken Starr.)
On August 1, 1994, Simmons filed a Petition for Writ of Certiorari with the United States Supreme Court.
Two months later, on October 3, in another unprecedented moment in judicial history, The High Court refused to review any of the nearly 1,700 newly petitioned cases pending before it, including Moldea I and Moldea II.
The New York Times described it as "the day the Supreme Court of the United States said 'no.'"
NBCC President Carlin Romano of the Philadelphia Inquirer wrote:
Learning to love Moldea v. New York 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. . . .
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.
Indeed, if the beneficiary of this “bizarre reversal” had been an oil company or pharmaceutical concern, the media would have demanded a federal investigation into the circumstances of this tragic decision.
But, because media organizations were its beneficiaries, they sat back and did nothing.
Five years after the decision, Judge Mikva published a story in the June 14, 1999, edition of the Legal Times, that agreed with my theory of what had happened and contradicted his earlier remarks, writing in part:
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.”
For a detailed timeline of the media coverage of this case, see Moldea v. New York Times: The Untold Story.
A final word: My homage to the New York Times
Notably, the New York Times gave life to me as an author in a story published by Herbert Mitgang, the literary editor of the Times, on June 29, 1978. I have always considered it my professional birth certificate. . . . The Times review by NFL beat reporter Gerald Eskenazi on September 3, 1989, essentially served to destroy me right in the heart of my career as an investigative journalist and author. . . . However, the Times’s two very favorable reviews of my next book about the murder of Senator Robert Kennedy—by Christopher Lehmann-Haupt, the Times chief literary critic, on May 25, 1995, and by author and journalist Gerald Posner on June 16, 1995—effectively resurrected me from the dead.
Here is a catalog of the 19-part series about Moldea v. New York Times, excerpted from the 2020 third edition of my memoir, Confessions of a Guerrilla Writer, upon which much of this column was based.
1/19: A sudden problem
2/19: The review in the New York Times
3/19: Pigs and sausages
5/19: A game of chicken
6/19: “I’ll give you a good fight!”
7/19: At war with the New York Times
8/19: Joe Browne and Gerald Eskenazi
9/19: Cooke v. Washingtonian
10/19: A slow judge makes a fast decision
11/19: The U.S. Court of Appeals
12/19: “Reversed and remanded”
13/19: “Beyond a Bad Review”
14/19: Kenneth Starr and The World Amicus
15/19: An unprecedented reversal: Moldea II
16/19: The Simmons-Starr debate
17/19: The Supreme Court says "no"
18/19: Alien Ink