Libel Suit Is Reinstated for Book Review in N.Y. Times : Law: Appeals court allows $10-million action, saying criticism is held to same standard as news stories. Writer on NFL had been called ‘sloppy.’

A U.S. appeals court reinstated a $10-million lawsuit Friday against the New York Times for publishing a harshly critical book review, a decision libel experts said could make critics think twice about panning a book, play, movie or restaurant.

In a 2-1 opinion, the court said that a reviewer’s comment that a book on the National Football League and organized crime contained “too much sloppy journalism” could be the basis for a libel verdict if a jury concludes the statement was false.

Book reviews, like news stories, can result in damage verdicts “if they imply a provably false fact,” Judge Harry Edwards wrote.

Unless overturned on appeal, the ruling will give author and investigative reporter Dan E. Moldea a chance to convince a jury that his book was factual and accurate, not sloppy.

“For an author, a harsh review in the New York Times Book Review is at least as damaging as accusations of incompetence made against an attorney or a surgeon in a legal or medical journal,” Edwards added.

But the dissenting judge complained that the opinion “opens up the entire arena of artistic criticism to mass defamation suits.”

“If a statement that Mr. Moldea wrote a sloppy book is defamatory, so would be a statement that Bette Midler wore a sloppy dress, or that Oliver Stone made a sloppy film, or that Itzhak Perlman had a sloppy technique,” wrote Chief Judge Abner Mikva in his dissent.

Friday’s ruling illustrates a new trend in libel law. Since 1990, courts have increasingly held critics and opinion writers to the same strict standards for accuracy as news reporters.

Before then, critics, columnists and editorial writers generally were seen as immune from libel suits because their words were labeled opinion, not fact.

But the Supreme Court threw out that distinction in 1990, ruling that false statements of fact in an opinion column can be the basis for a libel verdict.

“Simply couching a statement--’Jones is a liar’--in terms of opinion--’In my opinion, Jones is liar’--does not dispel the factual implications contained in the statement,” wrote Chief Justice William H. Rehnquist in the case of Milkovich vs. Lorain Journal.

Friday’s decision relied heavily on that high court opinion. In recent years, other judges have permitted damage suits against restaurant reviewers and news commentators who misstated the facts in the midst of a harsh commentary.

But one leading libel expert said he feared that applying strict libel law to critics and commentators could force them to muffle their opinions.

“This sends a message that it is open season on reviewers who make candid, acerbic comments,” said Rodney Smolla, a First Amendment expert at the College of William and Mary. “If you think a book or play was really bad, you would have to think twice about saying that. “My question is, do we want these decisions made in a courtroom, or do we want to let these matters be settled in the marketplace of reviews?”

But a lawyer who represented Moldea praised the ruling as a “victory for the small guy” against the most powerful force in book publishing.

When Moldea’s book, “Interference: How Organized Crime Influences Professional Football,” first appeared in 1989, it gained quick attention and had good prospects for selling well, according to his lawsuit.

But on Sept. 3, 1989, the New York Times printed a sharply critical review by Times sports writer Gerald Eskenazi, which said that the book was full of “errors and unfounded insinuations.”

For example, Eskenazi wrote: “(Moldea) revives the discredited notion that Carroll Rosenbloom, the ornery owner of the (Los Angeles) Rams, met foul play when he drowned in Florida 10 years ago.”

Judge Edwards noted, however, that while Moldea quotes friends of Rosenbloom who believe he was murdered, he concluded this section by saying: “In short, the evidence appears to be clear that Rosenbloom died in a tragic accident and was not murdered.”

Said Roger C. Simmons, the author’s attorney: “We believe we can prove that kind of assertion (by Eskenazi) had no factual basis. And it had a devastating impact on (Moldea’s) career.”

He noted that Moldea sent a letter of reply to the New York Times soon after Eskenazi’s review appeared, but it was not printed.

“If they had printed his reply, there would never (have) been a case,” Simmons said.

In a statement, the New York Times said that it would ask the full appeals court to reconsider the ruling by the three-judge panel. If that fails, the newspaper could ask the Supreme Court to hear the case.

“We are very disappointed in the majority’s ruling, which we feel has been wrongly decided because it does not give sufficient constitutional protection for expressions of opinion in a review,” the New York Times said.