In late March, attorneys for the New York Times petitioned the entire eleven‑judge Court of Appeals for the D.C. Circuit for a rehearing of my case, en banc, arguing that its 2‑1 decision "undermines two centuries of jurisprudence protecting literary criticism, . . . [placing] at risk virtually every unflattering review."
In concert with the Times's sky-is-falling brief, prominent Washington attorney Kenneth Starr of Kirkland & Ellis, a former judge with that same appellate court and the former Solicitor General of the United States under President George H. W. Bush, filed an amicus curiae that reeked with the power and prestige of its author.
In his well‑argued brief—which, we believed, completely distorted the facts of our case—Starr represented 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, among many other media organizations.
From the moment of its filing on March 21, my attorneys and I referred to Starr's work with awe, simply calling it, The World Amicus.[1]
The following day, trying to alleviate some of the sting after the filing of The World Amicus, I made a copy of the Ziggy greeting card that my old friend Tim Davis had given me twenty‑one years earlier after my April 1973 arrest at the University of Akron during a protest for student rights while I was student body president. I sent the Ziggy card to Simmons, thanking him for the great fight he was giving me.
Seemingly applicable to our situation, the card still read: "Looks like it's you and me against the World. . . . and I think we're gonna get creamed."
However, after years of receiving passes from the fray, the New York Times and Gerald Eskenazi were finally starting to receive serious criticism for misrepresenting what I had written and not written in my book. For instance:
* Ed Diamond in New York, who had earlier written: "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.'"
* Christopher Hanson in the Columbia Journal Review continued: "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."[2]
* D. T. Max of the New York Observer late wrote: "[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.'"[3]
* Sports journalist Allen Barra, also of the New York Observer, decided: "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. . . . 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."[4]
* John Leonard, the former editor of the New York Times Book Review, insisted in The Nation: "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."[5]
And Steve Love, a reporter from the Akron Beacon Journal, wrote:
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. . . .
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. . . .
Eskenazi did what the mob could not: He killed Moldea.[6]
Actually, while we were turning the corner in this fight and now winning, I was still alive and well. And, for the first time since their review of Interference in September 1989, the mighty New York Times finally found itself on defense.
ENDNOTES
[1] The Association of American Publishers and the PEN American Center filed a second amicus. Poorly researched and presented, this brief—which even got the title of my book wrong, along with numerous other mistakes—paled in comparison to Starr's brief.
[2] Christopher Hanson, Columbia Journalism Review, “Capital Letter: Playing ‘Chicken’ With the First Amendment,” May/June 1994.
[3] D.T. Max, New York Observer, “Moldea Reversal Delights The Times,” May 16, 1994.
[4] Allen Barra, New York Observer, “Some Reviewers Predisposed to Throw the Book at Authors,” May 9, 1994.
[5] John Leonard, The Nation, “Revenge of the Fettuccini,” July 11, 1994.
[6] Steve Love, Akron Beacon Journal, “It’s ironic, but writer’s suit could harm right to criticize,” April 19, 1994.