Intermezzo for my 19-part series about Moldea v. New York Times (1989-1994)

A David and Goliath proxy fight after David published allegations about the NFL and the Mafia

Aug 27, 2023

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(Return to The Works of Dan E. Moldea)

For context, see my 12-part series about my book about the NFL and the Mafia, Interference: How Organized Crime Influences Professional Football.

The reaction to Interference, my book about the NFL and the Mafia, by the sports media, which I had openly criticized for its 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 a reckless and malicious review of my book 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 the 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 over the review, Chris Hanson of the Columbia Journalism Review insisted:

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, wrote: "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), 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 in Washington D.C.

But, on January 31, 1992, a federal judge dismissed the suit. Simmons immediately appealed with the U.S. Court of Appeals for the D.C. Circuit and was masterful during the oral arguments against the Times attorneys in front of the three-judge appellate panel.

On February 18, 1994, the federal appellate court overturned the lower court decision in a strongly worded opinion; thus, reinstating the case. The Legal Times stated:

[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.

Nevertheless, the appellate court's decision touched off a firestorm of apocalyptic editorials and cataclysmic protests from the general media. 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.'"

Another 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 act, the same three-judge panel—citing no new evidence or legal precedents—reversed itself, upholding the lower court dismissal.

"I am amazed," Professor Rodney Smolla, a top First Amendment expert told the Los Angeles Times. 'I've never heard of one like that in my life. I've heard of circuit conflicts but not an interpersonality split."

Summarizing the court's decision in what the appellate judges called Moldea II, 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 me as saying:

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.

In the aftermath of Moldea II, my attorney, Roger Simmons, debated the case on Court-TV with Kenneth Starr, the former U.S. Solicitor General and a one-time member of the D.C. Circuit, who wrote an amicus brief on behalf of 400 media companies in support of the Times.

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.

The New York Times described it as "the day the Supreme Court of the United States said 'no.'"

"Now that the Supreme Court has turned down Moldea v. New York Times, managing with a single 'Denied!' to leave the law on criticism and libel a mess and the Court's cozy relations with the Times uninjured," wrote Carlin Romano in his November 1994 president's letter to the NBCC membership, "we can all return to being wild and (safely) woolly-headed book critics."

For a detailed timeline of the media coverage of this case, see Moldea v. New York Times: The Untold Story.

Notably, the New York Times gave birth to me as an author in a story published by Herbert Mitgang, the literary editor of the Times, on June 29, 1978. . . The Times review by NFL beat reporter Gerald Eskenazi on September 3, 1989, served to destroy me. . . . However, in the Times’ 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.

The New York Times: Pure class.

Here is a catalog of the 19-part series about Moldea v. New York Times, excerpted from the third edition of my memoir, Confessions of a Guerrilla Writer.

Catalog

1/19: A sudden problem

2/19: The review in the New York Times

3/19: Pigs and sausages

4/19: Combat on Nightline

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