On Thursday, May 5—just before Time magazine and its subsidiary, Entertainment Weekly, named me in their separate editions as "Loser of the Week"—I decided to take off for the weekend and get away from the telephone. I flew home to Ohio to take my mom out to dinner for Mother's Day and to play golf with my college buddies. Among my family and friends in Akron, no one could have cared less about Moldea v. New York Times.
The following night, Roger Simmons, still defending me as passionately as ever, appeared on Court‑TV to debate Kenneth Starr, the author of The World Amicus. Host Fred Graham moderated.
After the issues were laid out, Graham spoke of my criticism of the judges for allowing the media criticism in the wake of Moldea I to influence their decision.
Graham: Well, let's ask Ken Starr. What else did change other than all this criticism?
Starr: I think in all honesty, Fred, the court had a fuller understanding of the implications of its opinion. Its first opinion was very far reaching. It was a monumental opinion. It was a dynamite opinion. And I don't think that the court apprehended what it had done. And that may seem odd, but it happens. Judges are very busy—
Graham: Morning after? [laughing]
Starr: Morning after. And then the Times comes in and says, "Here is what the court has done." It was supported by media interests, indicating, "This is very far reaching." And the court has, perhaps, over read—I think it did, and Roger is a wonderful lawyer but I disagree with him on the state of the law. I think the panel opinion, the divided panel opinion, had just misapprehended what the law was. They got it wrong the first time. And, then, to their great credit they said, "We goofed. We made a mistake, and we're going to get it right." And they did.
Graham: Now, those two judges who switched, Judge Harry Edwards and Pat Wald, they are both strong‑minded judges. They had to know when they issued the first "monumental decision" that people were going to look at it and analyze it. And then, suddenly, they changed their mind. Is there any precedent? I don't know a precedent for this.
Starr: Judges change their minds. You will see—to Judge Edwards's credit—when he begins the second opinion, he talks about quoting . . . that "wisdom sometimes comes late," and that it's better that it comes late than never at all. And judges need to be open minded about this. So I think this—by the way, Fred—is a great tribute to the court. And I feel very, very strongly that the court institutionally should be viewed as not having catered and not been courageous to stick up for what it thought was right—but being open minded enough to take a second look.
Simmons: No one, I think, to my knowledge, would ever begin to criticize the intellectual integrity and the capability of Judge Edwards and Judge Wald. They are two of the finest judges in the country. There is no doubt about it. I think the question here that got created was what exactly the Supreme Court case in 1990—the Milkovich case, which preceded the filing of our complaint by about four months—what it really means. That's the critical issue. We see Milkovich as cleanly and clearly and specifically wiping away the difference between opinions and normal news reporting. And the Milkovich case—
Graham: Well, pardon me for interrupting. You're going to the issue here, and we'll go there in a minute. But it does seem—Do you know of any precedent like this?
Simmons: This is, I think, sui generis. It stands on its own.
Graham: Yeah.
Simmons: It's unique. There are certainly instances—as Mr. Starr well points out—where judges will change their mind, where they've seen—missed a case, missed a precedent or something very different about a case that is brought to their attention. This is a case where the judges looked at it for six months before they ruled on the opinion. There was a vigorous oral argument. There was a 2‑1 split on it. There was vigorous debate within the court over how it would come out. And they came out passionately for Dan Moldea.
Graham: Uh‑huh.
Simmons: Ten weeks later, they came out rather ambiguously for the New York Times. And, I think, what it points to is a need for clarification of this area of the law.
Meantime, continuing to misrepresent what my case was all about—the provably false facts contained in Eskenazi's review—the New York Times published a self-congratulatory editorial, celebrating its big win against little me on May 7, "Critical Freedom," in which the newspaper embraced God and country, as well as the First Amendment, saying:
The Court of Appeals judges have rebounded with sensitivity, and with courage, given the difficulty of changing judicial minds. The whole society, freer to speak and argue about matters of public concern, is the winner.
Of course, to the New York Times, that "critical freedom . . . to speak and argue about matters of public concern" applied to everyone but me. Just as it had done after its false review about my book, the Times again refused to publish my response. In my unpublished reply to the Times editorial, I stated:
Contrary to what the New York Times has bullied its readers to believe—that this litigation is merely over the use of the term 'sloppy journalism' in a vacuum—my suit really questions whether reviewers with conflicts of interest can voice their hidden agendas with the publication of probably false facts that are merely disguised as opinions. In short, my attorneys and I believe that opinion writers should be held to the same standard of accuracy and honesty as news reporters. . . .
The New York Times asserts in its May 7 editorial that the appellate court's second opinion safeguards "spirited argument," adding: "The whole society, freer to speak and argue about matters of public concern, is the winner."
Ironically, your newspaper's original failure to publish my letter to the editor in response to a false and misleading review of my book denied me the opportunity to participate in this "spirited argument." Had I been given the opportunity to respond, I never would have filed this lawsuit.
Writing on my behalf, Roger Simmons stated in his own letter to the Times:
I must say I am not particularly surprised that the New York Times would not want to publish Dan Moldea's reply to its false editorial about him and his case inasmuch as the Times has never desired to publish his view of the controversy. The Times obviously does not want to permit Dan Moldea to participate in the free exchange of ideas in the marketplace.
Soon after realizing that, once again, the Times would not publish either of our responses, I wrote an article about the case for the Los Angeles Times.[1] This op‑ed piece served as the basis for my speech at a symposium at the 1994 American Booksellers Association in Los Angeles, which had been arranged and sponsored by the National Book Critics Circle. The event pitted Roger Simmons and me against Times attorney Bruce Sanford and three other supporters of the New York Times.
In both the speech and my article, which was published on the same day of the symposium, I explained:
In effect, the appellate court, in its virtually unprecedented act, created an exemption from libel for opinion writers when they engage in "mischievous intent," as the court now calls it. News reporters and nonfiction authors have no such exemption and continue to be held to a "malice" standard.
In other words, a person expressing an opinion may deliberately set out to make misstatements of fact without the critic’s victim having any recourse.
In the midst of the debate at the ABA, Carlin Romano, the president of NBCC and the moderator of this slugfest, stunned everyone in the large meeting room when he suddenly came out publicly for our side. It was a show-stopping moment.
Later, Romano wrote in his lengthy two‑part series about my case in The Nation:
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.[2]
Even according to Bruce Sanford's own account of the ABA event in his 1999 book, Don't Kill the Messenger, Simmons and I had won over the audience:
What interested me most about the afternoon was not the reprise of the legal arguments, which sounded the same familiar melodies as the courts were hearing, but instead the responsive chords which Moldea was finding with the audience of authors, publishers, bookstore owners and affiliated denizens of the book world. Whenever Moldea would rant against the power of the Times Book Review to make or break a book with a positive or negative review, the audience would nod in agreement as if a flashing "Nod Now" sign had been turned on from the podium.[3]
Once again, Sanford had created a fantasy about what really happened. In fact, Simmons and I—along with NBCC president Carlin Romano—swung this sophisticated, book‑savvy crowd to our point of view because, for the first time, they had heard our side of the story. Regardless of Sanford's subsequent rationalizations, the audience simply did not buy his defense of the Times's actions, especially its decision not to publish my letter to the editor, which would have averted all of this.
ENDNOTES
[1] Dan E. Moldea, Los Angeles Times, “Can a Bad Book Review Ruin a Writing Career?” May 29, 1994.
[2] Carlin Romano, The Nation, “Paper Chase – I,” June 6, 1994; and Carlin Roman, The Nation, “Paper Chase – II,” June 20, 1994.
Romano's two-part series infuriated many in The World Amicus crowd, because he had placed his prestige as NBCC president on the line. In lieu of blindly accepting the New York Times's spin on the unfolding events, Romano courageously had done his own investigation, interviewing the principals on both sides of the dispute. And the results of his independent probe, which supported our point of view, were startling.
[3] Bruce W. Sanford, Don’t Shoot the Messenger” (Free Press, 1999), pp. 186-189.