On Tuesday, May 3, at 9:00 A.M., Roger Simmons called and told me that the U.S. Court of Appeals had issued a second opinion regarding our case. Unclear about what had happened, he instructed me to go to the courthouse and get a copy.
I ran out the door, grabbed a cab, and went downtown. When I arrived at the clerk's office, I saw a sheet of paper taped to the wall, stating, "Opinions filed May 3, 1994 in the following . . . ." Only naming Moldea v. New York Times, the announcement noted that the new opinion had been written by Judge Edwards who also wrote the first opinion.
Under the category "Action," the word "Affirmed" appeared.
"Affirmed," I said out loud to myself. "That sounds like good news."
I walked into the clerk's office, smiling, gave the person behind the counter my name, and asked for a copy of the opinion.
When the clerk handed me the document, I opened it to the first page. Edwards began by recalling Justice Potter Stewart's statement in the wake of a U.S. Supreme Court's decision to reconsider and overrule an earlier decision. Edwards wrote:
This remark has special poignancy for me now, because it underscores the distress felt by a judge who, in grappling with a very difficult legal issue, concludes that he has made a mistake of judgment. . . . Like Justice Stewart, I will take refuge in an aphorism of Justice Frankfurter:
"Wisdom too often never comes, and so one ought not to reject it merely because it comes late."
I stopped reading momentarily and murmured to myself, "Where the hell is he going with this?"
Continuing, Edwards stated:
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. . . .
Reading that, I clearly remembered Edwards writing in his first opinion that the "analysis of this case is not altered by the fact that the challenged statements appeared in a book review rather than in a hard news story."
Then, Edwards dropped the bomb:
In light of our reconsideration of this case, we hold that the challenged statements in the Times review are supportable interpretations of Interference, and that as a matter of law the review is substantially true. Accordingly, we affirm the District Court's grant of summary judgment in favor of the Times.
I glanced up towards the counter and saw several people looking at me and then quickly look away.
Then, as the clerk offered me a few extra copies of the opinion, he said quietly, "I'm sorry, Mr. Moldea."
I smiled and replied, "Hey, I fought the law, and the law won."
The smile on my face disappeared within seconds after I walked out of the clerk's office. I then went to a nearby pay phone, called Simmons, and gave him the bad news—which he had already heard from a barrage of reporters who had called since we last talked. I was so numb that I don't even remember the specifics of what either of us had said during this conversation.
By the time I reached the elevator, I had a pretty good idea of what was going to happen to me after Edwards's latest opinion—which he called Moldea II—became public. But, even though I expected the opinion writers to tear me apart once again, I also anticipated the continued involvement of news reporters who would certainly investigate and ask questions about this incredible reversal.
Returning home, I heard my telephone ringing as I walked up the stairs. I didn't rush to get it, allowing my answering machine to record the message instead.
When I entered my apartment, I sat down on the couch as Noodles, my golden retriever, came over to me. She always seemed to know intuitively when I was in distress. For the next few minutes, as more calls came in, I stroked the fur on Noodles's back while looking around my living room, fully expecting to lose what little I had left.
After I finally decided to get up and face the music, the first call I returned was to Tamar Lewin, a reporter for the New York Times, who had called for comment. I gave Lewin what would become my mantra for the rest of the day:
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 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.[1]
The following day, the media coverage told the story. Paul Barrett in the Wall Street Journal wrote:
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. . . .
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 asserted.[2] [Emphasis added.]
In a turnabout of his own, David Streitfeld of the Washington Post wrote a surprisingly fair article about the judges' reversal, quoting Carlin Romano, the president of the National Book Critics Circle, saying: “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.”
Streitfeld also received comments from the attorneys on both sides:
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." . . .
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. . . . "[3]
Did anyone agree with me that the judges caved to outside pressures?
Streitfeld quoted respected First Amendment expert Rodney Smolla of the College of William & Mary's School of Law: "This is impossible to understand. . . . They argued this out, thought this out, thrashed it out . . . It's inexplicable."
Also, reporter Joan Biskupic, who covered the courts for the Post, wrote on May 5:
[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." . . .
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 [Patricia] 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."[4]
Five years later, Mikva, then retired from the bench, was extremely candid about the impact of media pressure on Judges Harry Edwards and Patricia Wald, his two colleagues during Moldea v. New York Times. In a June 14, 1999, article for the Legal Times, Mikva, confirming what I had alleged, wrote:
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.[5]
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 ruling.
But, because media organizations were the beneficiary, they sat back and did nothing.
ENDNOTES
[1] Tamar Lewin, New York Times, “In Reversal, Appeals Court Dismisses Libel Suit Against Times,” May 4, 1994.
[2] Paul M. Barrett, Wall Street Journal, “In Rare Reversal, Court Blocks Libel Suit Over Book Review,” May 4, 1994.
[3] David Streitfeld, Washington Post, “Judges Switch Sides in Libel Suit,” May 4, 1994.
[4] Joan Biskupic, Washington Post, “In Libel U-Turn, Judge Admits Starting In the Wrong Direction,” May 5, 1994.
[5] Abner J. Mikva, Legal Times, “Oh, Never Mind,” June 14, 1999.