On August 23, 1990, Roger Simmons filed a $10 million libel suit—Moldea v. New York Times—in the U.S. District Court for the District of Columbia. In our complaint, Simmons charged that the September 3, 1989, review, written by Times sportswriter Gerald Eskenazi, was "intended to protect the NFL by personally attacking Moldea, discrediting his reputation and smearing his good name as an investigative reporter."
Specifically, the suit cited seven errors and misrepresentations in the review, which were the basis for Eskenazi's claim that I had engaged in "sloppy journalism." Among our examples was the reviewer's allegation that my book "revives the discredited notion that Carroll Rosenbloom . . . met foul play when he drowned in Florida 10 years ago," when, in fact, I had written, "The evidence appears to be clear that Carroll Rosenbloom died in a tragic accident was not murdered."
The following day, after an AP wire story, Washington Post book‑chat columnist David Streitfeld published a lengthy article on the front page of the Style section. He quoted a senior attorney for the New York Times and three prominent First Amendment lawyers, all of whom attacked the merits of our case. However, in his depiction of me as a crazy person, he failed to quote—or even identify—my attorney, Roger Simmons, anywhere in the article.
Then, having some fun with the idea of a disgruntled author filing a libel suit over a review, Streitfeld concluded: "And if, in the end, he loses the case? [Moldea said,] 'I guess that means I'm a sloppy journalist and I'm dishonest and everything else.'"
On August 26, 1990, two days after the Streitfeld story, the Washington Post published an editorial: "Suing the Reviewer," attacking me and my suit against the Times. In this editorial—which was mostly based on Streitfeld's own sloppy reporting—the Post, articulating its fear of the linkage of my case to the earlier Milkovich decision by the Supreme Court, wrote:
That fear now takes a faintly absurd but still troublesome twist with the lawsuit of writer Dan Moldea against the New York Times, which Mr. Moldea accuses of having libeled him by publishing a negative review of his book. . . . [Moldea's] claim of factual falsity [against the Times] seems something of a stretch. The review does, as he charges, accuse him of 'sloppy journalism'; it goes on to give a string of examples, including spelling errors. . . .
However, the Washington Post conveniently omitted from the Streitfeld story and its editorial that the Post had misspelled the same names in its own newspaper.
Hearing me complain about the unfairness of the biased reactions in the press to our litigation, Simmons laughed and simply advised me to grow some very thick skin as quickly as possible, because this was just the beginning. He added that—despite my long career as a good guy, investigating some of the most dangerous bad guys in the country, alone, as an independent writer—I would now be cast in the media as a villain. And I would have to learn how to live with that.
"I thought you understood this," Simmons chided me. "The press has a vested interest in the outcome of this case. Do you really expect them to report it fairly?"
Although I had no second thoughts about filing the case, I did find myself in a Catch‑22 dilemma: If I had ignored the review and did nothing, I would be dead, branded by the New York Times as a sloppy journalist. If I sued but lost, I would really be dead with a stake rammed through my heart. But even if we proved the merits of our case and won, I'd still be dead—because I would be viewed as wreaking havoc on the First Amendment.
I began to lose sleep again, just trying to figure out how I could come out of this situation alive and still in one piece.
On the public‑relations front, I put together a press kit, which contained a copy of Interference, a statement about the case, my letter to the editor that the Times refused to publish, and some biographical material.
Even though the nature of this fight emboldened me to work even harder, Mimi seemed to absorb most of the impact of all the bad news. I repeatedly gave her opportunities to leave me, so that she could find some degree of peace and serenity in life, knowing that she couldn't find much of either with me. But, incredibly, Mimi continued to stand by me.
Meantime, coming to my short‑term financial rescue, my old friend, the former chief investigator for the U.S. Senate Permanent Subcommittee on Investigations, Phil Manuel—now president of the Philip Manuel Resource Group, a successful Washington private investigations firm—asked me to come to work as a consultant for him on one of his cases. And my booking agents, Bob Katz and Jodi Solomon, had nailed down three new lectures for me at Michigan Technological University, Valparaiso University, and the University of Central Florida—for which I cleared an additional $7,000.
Focusing my attention on my libel suit, I organized my files for easier access and began logging in everything relevant to the Times case. If I had been a chronology freak before, I had now evolved into a timeline monster. Everything I had ever done, was in the midst of doing, or would do in the future had a place in some topical chronology.
And, then, trying to give Roger Simmons and his associates everything they could possibly use during the case, I started a series of memoranda for their consideration. During the first few weeks, I wrote memos on such subjects as: "Prior Conflicts with the New York Times," "Reviving the Carroll Rosenbloom Murder Theory," "The NFL's On‑the‑Record Reactions to Interference," "Preliminary Background Report on Gerald Eskenazi," "Corrections Published by the New York Times," "Killed NFL Investigations," "Alleged Fixed Professional Football Games," and even my "1975‑1989 Federal Income Tax Returns," among others, which would total over 700 memoranda by the end of the case.
On September 5, the WIW board of directors, led by WIW president Tim Wells, passed a resolution, saying, in part:
Overt misstatements of fact, when published in a book review, should be viewed in the same light as misstatements of fact that appear in any other section of the newspaper, or any other forum. If such errors appear in a review and are brought to the attention of the publisher and conclusively demonstrated beyond a reasonable doubt, the publisher has a moral and ethical obligation to either retract any libelous portions of the review or to provide the author in question with the opportunity for a rebuttal.
Further, we believe such misstatements of facts are apparent in a review . . . published by the New York Times on September 3, 1989, that dealt with Dan Moldea's book, Interference: How Organized Crime Influences Professional Football.
Later, the WIW board generously voted to give me $5,000 from its Writers Defense Fund to pay my required retainer to my attorney, allowing me to use the money I still had for my war chest.
Meantime, Roger Simmons sprayed the terrain with subpoenas for discovery, going after files held by William Morrow, the National Football League, and, of course, the New York Times and Gerald Eskenazi. My publisher, William Morrow, was the only party that cooperated fully. Attorneys for the others vigorously resisted our attempts to secure their files.
Actually, I prayed that we would find something in the NFL files that could make it culpable in our complaint. We wanted to find some way to bring the NFL in as a defendant—even if it meant dropping our complaint against the Times.
We believed that what the Times had done to Interference was tantamount to an act of censorship, and that the National Football League was the beneficiary of that act.
But, for now, in order to get to the NFL, we had to get past the Times.