On November 5, after the Times's lead outside counsel, Bruce Sanford—a talented and respected First Amendment attorney with the influential law firm, Baker & Hostetler—filed a motion with the court to stay discovery, Simmons and Sanford faced off for the first time in open court to provide their first status reports to U.S. District Judge John Garrett Penn.
At the end of the hearing, Judge Penn allowed 180 days for discovery—with the understanding that he would reconsider after seeing the Times's anticipated motion for summary judgment.
Two days later, on November 7, Simmons dropped a subpoena on Eskenazi for his sworn deposition. We were confident that Simmons, a skilled and aggressive interrogator, would annihilate Eskenazi under oath. We honestly believed that in the wake of Eskenazi’s deposition, this case would be over. We thought that the Times would beg us to settle.
As I had repeatedly told anyone who would listen, the similarities in tone and substance between the Joe Browne's public statements on behalf of the NFL and Gerald Eskenazi's subsequent review were incredibly striking. From the outset, I had predicted a relationship between Browne and Eskenazi in this matter—especially after I discovered Eskenazi's acknowledgment to Browne in the sportswriter's 1976 book about the New York Giants, There Were Giants in Those Days, a celebration of professional football for which Eskenazi received the full cooperation of both the NFL and the Giants' top management.
In addition, according to documents released by the Times under the required discovery, Eskenazi's personal calendar indicated that he had been scheduled to talk to Browne on the first day of my book tour, July 26, 1989. Soon after, Eskenazi received the assignment from the New York Times to review my book.
Also, Eskenazi had handwritten Browne's name in a margin of his personal notes about Interference, suggesting that Eskenazi had consulted with Browne prior to writing the review. In addition, Eskenazi appeared to have listed and numbered Browne's criticisms of my book in another margin, apart from the rest of his notes. And most of these points wound up in Eskenazi's error‑filled review, suggesting that Eskenazi and Browne had actually worked together on this piece.
As all of the legal maneuvering on both sides continued after the Times submitted its motion for summary judgment on November 30, we prepared for Eskenazi's deposition on Thursday and Friday, December 20 and 21. Well in advance, we had our train and hotel reservations for the anticipated two‑day bloodbath—if it even went that long before the Times unconditionally surrendered.
Throughout December 19, the day before Eskenazi's anticipated day of reckoning, telephone calls and faxed documents burned up the phone lines among the attorneys and me. Roger Simmons seemed so pumped up that I thought he was ready to climb into the ring with Mike Tyson.
Then, just before 5:00 P.M.—while I was in the midst of packing my luggage—Simmons called. Badly shaken, he simply told me, "Judge Penn has just stayed all discovery. Eskenazi's deposition tomorrow has been postponed indefinitely."
I just sat at my desk in total disbelief. Then, I called Mimi, asking if I could take her to a movie and dinner that night—because I would not be going to New York the following day.
On May 29, 1991, I participated on a panel of journalists and attorneys to discuss the topic, “The First Amendment: What’s Its Worth Today?”[1] Warren Burger, the former Chief Justice of the U.S. Supreme Court, served as moderator of this event, which was held at the National Press Club.
During my opening statement, I decided to express my reconstituted view of the media, saying:
Other than the government, I can think of no institution in which the temptations for abuses and the potential for sheer corruption are greater than within the media itself. Yet no other business in American society enjoys the same constitutional privilege that the media enjoys. And no institution in America, not even the government, can wipe out a person's reputation as fast and as thoroughly as the media can.
Now, all of us can speak in broad terms about the principles of the First Amendment being more important than the problems of one individual. Thus, the individual, in view of the overall principle, is viewed as being dispensable and should be willing to be sacrificed. However, speaking from experience, when you—yourself—become the individual expected to be sacrificed, you then develop a little different perspective on such matters. You find yourself in a position where you are literally fighting for your own personal and professional survival. And, at the moment, I am fighting for my life. And I simply refuse to be sacrificed.
Another consequence is that this entire matter has pitted me against former colleagues, like the established pro-First Amendment groups, whose supporters have never met a libel suit they either like or respect—regardless of its merits, regardless of the unjustified personal damage the offending publication has done. As a consequence, these respected groups desperately search for any means available to defend occasionally indefensible abuses of the First Amendment while hanging people, like me, out to dry in the process. Again, the individual is expected to be sacrificed in order to protect the perceived overall principles of the First Amendment.
And, in my particular case—in which I am challenging a review to which I was not permitted to respond—I believe that the First Amendment issues cut both ways. My First Amendment rights have been violated. By the Times refusal to publish my letter, I was not permitted to participate in the full and robust exchange of ideas that the New York Times attorneys now claim that my suit threatens. Where are the First Amendment organizations, which should be questioning the violations of my rights? Again, I am the individual up against a powerful institution; and thus I am the one who has to be sacrificed.
At the same time, I cannot say enough about the pro-First Amendment groups. The Reporters Committee came to my rescue three years ago after I was subpoenaed by several Mafia figures in a federal RICO case in New Jersey and ordered to give up some FBI sources.[2] . . .
But the Reporters Committee and the big media are going to have to stop viewing the First Amendment in absolute terms—because they have developed distorted views of what the First Amendment should and should not protect. Every word, written or broadcast by a journalist, is not necessarily sacrosanct, endowed by a divine spirit and protected from legitimate legal challenge. The media, on occasion, screws up. . . .
When Chief Justice Burger asked me for my recommendations for reform, I replied that I had four:
1. Public disclosure should not be limited to public officials; it should also apply to those who write about them. This disclosure of individual journalists should include details about stock and investment portfolios, incomes, speaking engagements, and other matters which could demonstrate the appearance of or actual conflicts of interests.
2. The Congress should investigate the impact that the increasing corporate concentrations within the media have had on the reporting of the news.
3. The Justice Department's Antitrust Division, asleep now for over ten years, should reexamine recent media mergers and where necessary begin busting these violations to the public trust; and
4. Ultimately, the only checks on the growing and abusive power of the media conglomerates are the courts. The courts are the only places where private individuals can finally demand accountability from First Amendment abuses. Consequently, the courts should provide for a faster track in the hearing of libel suits, thereby creating a balance between media conglomerates and the individual who has been defamed.
After I completed my entire statement, Chief Justice Burger paused for a moment and said, only half-jokingly in front of the large audience which was taken aback by my words, “I would be surprised if you weren’t excommunicated from the press club for what you’ve just said.”
ENDNOTES
[1] The other panelists included First Amendment attorney Leonard Marks, the former head of USIA; Jane Kirtley, the executive director of the Reporters Committee for Freedom of the Press; Barbara Cohen, the chief of CBS’s Washington bureau; Clark Hoyt, Washington bureau chief of Knight-Ridder Newspapers; and James Vicini, who covered the courts for Reuters.
[2] In 1988, the Reporters Committee for Freedom of the Press arranged for attorney Warren W. Faulk of Westmont, New Jersey, to represent me after I was subpoenaed—along with Bill Knoedelseder of the Los Angeles Times—in U.S. v. Vastola, a federal RICO trial in Camden, New Jersey. Attorneys for Gaetano Vastola, a notorious New Jersey Mafia figure, had demanded that we reveal our law-enforcement sources regarding an incident revolving around the MCA case. Of course, both of us refused to cooperate. In the end, our attorneys convinced the trial judge to quash the subpoenas.