On October 3, in another unprecedented moment in judicial history that brought Moldea v. New York Times to an anticlimactic conclusion, the U.S. Supreme Court refused to review any of the nearly 1,700-newly-petitioned cases pending before it, including our case. Thus, once and for all, I was denied my day in court. In addition, we were never allowed to take a single deposition, including that of the reviewer, Gerald Eskenazi.
On its front page the next day, the New York Times described it as "the day the Supreme Court of the United States said 'no.'"[1]
Amidst all of the comment and analyses that followed, a thoughtful and responsible editorial in the Los Angeles Times stated:
Moldea's claim was that errors made by the reviewer amounted to libel against the author. In fact, the review did contain some errors; Moldea did have some valid points. The Court of Appeals first ruled that the errors in the review could constitute libel. But then, months later, the court, to general amazement, reversed its decision, stating that it had "failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review. . . ."
Was this distinction raised by the New York Times the one that persuaded the high court, or was it something else? At this point, we do not know. The Moldea case was settled without that point having been nailed down. . . . Claiming our First Amendment freedom to criticize legal briefs and court decisions, we suggest that the complex matter of responsibility to fact even within the expression of opinion deserves further attention.[2]
As the winners of this war, the Times's partisans took the opportunity to dance on my head—just as I would have danced on theirs had I won. David Streitfeld of the Washington Post talked to an associate of Bruce Sanford, reporting: "Reacting to yesterday's high court action, Henry Hoberman, outside counsel for the Times, said that 'opinion writers and commentators are now safe from would‑be censors and opinion police like Dan Moldea.'"[3]
However, Streitfeld added: “While many commentators were of the opinion that the review in this case shouldn't be used to rewrite the First Amendment, some still felt that Eskenazi was—well, sloppy.”[4]
Streitfeld went on to quote Christopher Hanson, who had written about the case in the Columbia Journalism Review, saying: “Moldea has reason to be upset. After comparing what the book says with what the review says it says, one might conclude that Eskenazi was some distance from Pulitzer territory.”
The Post reporter concluded his story with a quote from me:
"Now I have to get a life," [Moldea] said yesterday. His career has rebounded; he is publishing a book in the spring on the police investigation into the murder of Robert Kennedy. Presumably, the Times will review it.
"I'm sure they'll be very fair," Moldea said.
Immediately after hearing the news, former NBCC president Jack Miles of the Los Angeles Times, who would win a Pulitzer Prize in 1996 for his book, God: A Biography, faxed me a very kind personal letter that meant a great deal to me.
I wrote him back, saying, in part:
Personally, I feel like a guy who has been slugging down a fifth of gin every day for the past five years, and now I have to stop, cold turkey. This case has already lasted longer than World War II, and now I am preparing to put it behind me. . .
Anyway, the bad news is: It's over. The good news is: It's over.
Borrowing a scene from David Mamet's film, Things Change, I taped quarters to each of the letters I sent to my attorneys—Roger Simmons, Steve Trattner, and Ed Law—and wrote:
There is an old Sicilian proverb: "It takes a big man to appreciate the value of a small coin."
Enclosed is a small coin. If you are ever in any trouble or in need of something I can help you get, please drop this small coin in a telephone and call me. You guys are the best fighters I have ever seen in my life, and you have successfully brought my career back to life.
I will always be grateful.
Also, on the day of the decision, I wrote a note to both Bruce Sanford and George Freeman, simply saying to the victorious attorneys for the Times: "Congratulations. And thank you for a great fight."
ENDNOTES
[1] Linda Greenhouse, New York Times, “High Court Opens Its Fall Session By Refusing Cases: All Appeals Are Denied,” October 4, 1994.
[2] Editorial, Los Angeles Times, “Libel in Reviews: The Book Is Still Open,” October 10, 1994.
[3] David Streitfeld, Washington Post, “Moldea Appeal Rejected: Justices Refuse to Hear Book Review Case,” October 4, 1994.
[4] David Streitfeld went to work for the New York Times in December 2007.