On Friday, February 18, Debbie Wise, Roger Simmons's executive assistant, called to tell me that the U.S. Court of Appeals had rendered a decision in our case against the New York Times. Simmons and Ed Law were not in their offices—and she couldn't reach Steve Trattner—so she was not completely sure how "reversed and remanded" applied to our case.
It sounded like good news to me, as if the court had reversed the lower-court decision and remanded the case to trial. I called Tom von Stein, my close friend and another Thursday night poker buddy, at the Securities and Exchange Commission where he worked as a top attorney in its enforcement division. Von Stein believed that it was good news, too, but we both wanted confirmation. Von Stein ran off to the federal courthouse to get the paperwork.
After von Stein left his office, reporter David Streitfeld of the Washington Post called and officially gave me the news. Reading the AP and Reuters stories as they were coming off the wire, he said that the federal appellate court had ruled, 2‑1, in our favor, restoring all three counts of our case.
I knew without asking that Judge Abner Mikva—a former U.S. congressman from Chicago who was close to the Korshak family—had been the dissenter, based on his statements during the oral arguments. No doubt, Mikva had completely ignored my harsh criticism of Sidney Korshak in Interference, not to mention what I had earlier written about Korshak in Dark Victory.[1]
Although I was extremely happy with the court’s decision, I trembled a bit, knowing that the media would hardly be celebrating our big victory. In fact, when Streitfeld asked me for comment, I simply told him, "We are about to see a demonstration of raw power coming at us like a rifle shot."[2]
After my conversation with Streitfeld, von Stein called and started faxing the opinion to me. However, because my telephone and fax machine were the on the same phone line—which also had Call Waiting—any fax transmission was disrupted by the incoming calls. For the next few hours, von Stein tried and retried to fax the opinion—but to no avail. The flood of calls from the media and friends who heard the good news precluded my ability to receive the 39‑page opinion and dissent.
During the late morning, after they messengered the opinion to me, Simmons, Steve Trattner, Ed Law, and I had a conference call—in which I heaped praise on them. This was their victory, which had been led by Roger Simmons.
But, again, even though all of us were thrilled by the panel's opinion, we remained relatively subdued, not knowing exactly what lay ahead. No one even suggested breaking out the champagne.
One reason for our reticence was that we had read and understood the opinion. Judge Harry Edwards, who had written it, stated that four of the five statements of fact contained in the review—including Eskenazi's false claim that my book "revives the discredited notion that Carroll Rosenbloom . . . . met foul play"—could be meaningfully determined by a jury to be true or false.
That, we appreciated.
However, Judge Edwards also insisted: "[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."
Although grateful for the overall decision, I shuddered when I first read it, because it appeared that Judge Edwards had taken the controversy over the term "sloppy journalism" to an extreme—much further than even Roger Simmons sought.
All we had ever wanted was our day in court to present our evidence. But now, suddenly, we found ourselves at the hub of a potentially dangerous First Amendment issue.
The following day, the New York Times and the Washington Post published articles, featuring their predictable negative spin about our case.
However, David G. Savage, a reporter for the Los Angeles Times appeared to understand that something more was happening, writing:
[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. . . . [Roger C. Simmons,] who represented Moldea praised the ruling as a "victory for the small guy" against the most powerful force in book publishing.[3]
Predicting the general media's reaction to the decision, 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:
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. . . . 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.[4]
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.[5]
George Freeman, the Times's senior attorney, commented 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."[6]
Indeed, the reinstatement of the case by the court of appeals had brought a new phenomenon in our case. Suddenly, real journalists—like Savage, Barrett, Diamond, and Gersh, among many others—were now asking for our side of the controversy, as well as our documentation, which we had always made available to the media.
During the late morning of Friday, February 25, author Tim Wells, the former president of WIW, called and asked me if I would be willing to meet that afternoon with a Mafia figure about whom he wanted to write a book. Of course, I agreed to attend the meeting, which had been set for 5:00 P.M. at Quigley's, a restaurant near American University, just up the street from my home. Wells said he would pick me up at 4:30.
Getting ready for the meeting with this mob guy, I put on a pair of blue jeans, black cowboy boots, a black‑linen shirt, buttoned to the top, and a black leather jacket. I looked like the Prince of Darkness.
When Wells arrived at my apartment, he said that there had been a change of plans, and that the meeting had been moved to the Sign of the Whale, another popular Washington watering hole on M Street. I threw on a long dark gray overcoat and got into his car and went downtown. We parked in a lot on 19th Street, strolled across M, and into the restaurant. Wells walked ahead of me, and I followed him.
In the back room, instead of meeting a Mafia guy, I stepped into a surprise party with scores of cheering authors, journalists, attorneys, and trusted friends, toasting and celebrating our David and Goliath victory.
ENDNOTES
[1] A good friend of mine, author Gus Russo, published a fascinating and remarkably detailed biography about Sidney Korshak: Supermob: How Sidney Korshak and His Criminal Associates Became America’s Hidden Power Brokers (Bloomsbury, 2006).
[2] David Streitfeld, Washington Post, “Suit Over Book Review Reinstated,” February 19, 1994.
[3] David G. Savage, Los Angeles Times, “Libel Suit Is Reinstated for Book Review in N.Y. Times,” February 19, 1994.
[4] Paul M. Barrett, Wall Street Journal, “Author Who Sued Over Scornful Review Is Now Scorned by the Publishing World,” April 7, 1994.
[5] Edwin Diamond, New York, “Can You Prove the Hollandaise Was Curdled? – The Legal Uproar Over a Times Critic,” April 18, 1994.
[6] Debra Gersh Hernandez, Editor & Publisher, “$10 million lawsuit against N.Y. Times revived on appeal,” March 19, 1994.