Sticks and Stones : Can a Review Be So Bad It Is Libelous?

“It is safe to assume,” John Leonard, a former editor of the New York Times Book Review, has written, “that every writer has read every word of every review, and will never forgive you.”

Bill Henderson made Leonard’s comment the epigraph to his “Rotten Reviews: A Literary Companion” (Pushcart Press: 1986), a collection in which, as Anthony Brandt wrote in the introduction, “one of the pleasures . . . is watching the great being terribly wrong about the great”: Zola about Baudelaire, Stein about Pound, Emerson about Austen, Shaw about Shakespeare, and on and on.

If slightly malicious humor is the chief pleasure of the collection, its chief reassurance is that literary virtue seems to triumph in the end. But does it, always? Near the end of his introduction, Brandt calls the cackling to a brief halt with the following thought: “All of this has a serious side. . . . Rotten reviews hurt, for one thing: And if they don’t, perhaps, affect sales, they do affect literary reputations, which, as most authors will agree, are more important than sales in the end.”

Cold comfort it must be to a writer to be told to trust the marketplace of ideas if by the time the marketplace renders its judgment the writer is long since dead or ruined. Can there be no earlier redress of genuine grievance? If a final judgment must be left to the ages, can a timelier intervention at least rescue a career? Until recently, the answer would clearly have been negative. But now an aggrieved writer has brought suit against the New York Times Book Review. If he has his way, the face of book reviewing in this country may change.

On Sept. 3, 1989, the New York Times Book Review published a review of “Interference: How Organized Crime Influences Professional Football” (William Morrow) by Dan E. Moldea, a journalist specializing in organized crime. The review alleged a string of factual errors in the book and closed:

“There may well be some insidious connection between the wise guys and the NFL. Then again, there may not. ‘Interference,’ with its errors and unfounded insinuations, does not settle the issue. Mr. Moldea raises the questions, but has blunted his own sword of truth.”

Four days later, Moldea wrote the reviewer, Gerald Eskenazi, a New York Times sportswriter, charging that Eskenazi had seriously misreported what Moldea had written. Eskenazi’s errors about the book amounted to libel against the book’s author, Moldea said, and he demanded “a full and prompt retraction.” Otherwise, he promised to “take legal steps to remedy this situation, which has already caused tremendous illegal and unfair damage to my reputation and economic harm to my book.”

On Nov. 15, 1989, having failed to win a retraction or other correction, Moldea wrote a letter of about 750 words to Rebecca Sinkler, editor of the New York Times Book Review, refuting five alleged errors in the review by quoting from the book. For example:

“ Charge : Leading the reader to believe that I claimed that Super Bowl III in 1969 was fixed, Eskenazi wrote that I charged that there was something premeditated and ‘sinister’ about a meeting in a Miami bar between (New York Jets quarterback Joe) Namath and Baltimore Colts place-kicker Lou Michaels during the week before the game. He added that I failed to point out that the meeting ‘almost came to blows.’

“ Response : This is not true. I wrote in the second paragraph on page 197: ‘(Lou) Michaels told me that the meeting at a Miami bar/restaurant was quite accidental and even confrontational.’ Michaels’ statement was corroborated during my interview with Jets’ player Jim Hudson, who accompanied Namath to the bar. Further, I never claimed that the 1969 Super Bowl was fixed. To the contrary, I produced evidence on pages 194 and 198-99 discrediting the theory by Colts’ player Bubba Smith that it was.”

When the Times declined to publish this letter, Moldea sued--unsuccessfully: On Jan. 31, 1992, U.S. District Court Judge Garrett Penn granted summary judgment in favor of the Times. On Feb. 17, 1994, however, a three-judge U.S. appeals court reinstated Moldea’s lawsuit by a 2-1 vote. Summary judgment, as in the earlier ruling, is granted when the facts of a case are not in dispute and a decision may be rendered on the law alone. On appeal, Moldea claimed that the facts were indeed in dispute--not the facts about Super Bowl III, it must be noted, but the facts about what Moldea said about Super Bowl III. To sustain his appeal, the court had to find not just that these facts were in dispute, but that it mattered that they were in dispute.

This is just what the appeals court did find. Its opinion states with regard to one of Moldea’s several charges:

“The clear implication of the review passage is that Moldea, either through incompetence or an intent to mislead, suggests that the meeting was ‘sinister.’ This is an essentially factual claim--either ‘Interference’ so describes the meeting or it does not.” The judges note that the New York Times “attempted to demonstrate that the disputed passages in Moldea’s book do in fact describe a ‘sinister’ meeting. However, arguing that the characterizations offered in the review are correct is not the same as contending that they are non-verifiable--indeed, it is precisely the opposite.”

Can an Opinion Be False?

In 1990, the U.S. Supreme Court ruled in Milkovich vs. Lorain Journal that even statements of opinion can be libelous if they contain “false and defamatory” facts. Until Moldea vs. New York Times, however, no one had claimed that a negative statement about a book could, by implication, constitute a “false and defamatory” statement about the book’s author. It is the novelty of this claim that may yet make the Moldea case one of historic importance for American book reviewing.

At issue, obviously, is the extent to which every book review must also be a report on the facts of the book. If a reviewer gets those facts wrong, can the review be not just negative but also demonstrably false? And depending on the mistakes made, can a review be defamatory in its effect on the author?

Eskenazi wrote of Moldea’s book that “there is too much sloppy journalism to trust the bulk of this book’s 512 pages,” a statement Moldea regarded as falsely bringing his reputation for accuracy into question. Chief Judge Abner Mikva, dissenting from the decision of the appeals court, disagreed with Moldea: “If the 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.” But Judge Harry Edwards, writing for the majority, agreed with the plaintiff at least to the point of recognizing the question as legitimate: “Although sloppy in a vacuum may be difficult to quantify, the term has obvious, measurable aspects when applied to the field of investigative journalism, just as the term clumsy would with a brain surgeon.” At issue, clearly, is the question of whether Eskenazi’s characterization of the book--”sloppy journalism”--was based on demonstrably erroneous reporting.

Mikva also argues the majority opinion is “unwise . . . to ignore altogether the effect of the communicative vehicle upon the audience.” The dissenting judge maintains that readers will understand that a report coming in a book review is not to be taken with the same seriousness as a report elsewhere. The Washington Post in an unsigned editorial Feb. 24 took the same tack, defending the New York Times by citing a 1984 case in which the court observed: “It is well understood that editorial writers and commentators frequently resort to the type of caustic bombast traditionally used . . . to stimulate public reaction.” The Post comments: “We were not thrilled by this description . . . but we were relieved that the distinction between facts and opinions was maintained.”

Correcting the Record

Just what sort of responsibility to the facts does a book reviewer or other opinion writer incur? Judge Mikva agrees with his two colleagues that “it would be unwise ‘to craft a rule that permitted otherwise libelous statements to go unchecked so long as they appeared in certain sacrosanct genres.’ ” Very well: How is even this level of responsibility to be enforced?

The duty to refrain from false or defamatory statements cannot, obviously, require journalists to be infallible. An innocent mistake may always be corrected, and most publications--newspapers, in particular--correct errors far more quickly and prominently nowadays than they once did. An author’s intent in demanding a correction, however, may be simply to discredit a review. There is always a decision to be made by the editor about when a retraction is in order (for the correction of factual error), when a letter to the editor should be printed (for a statement of differing opinion or interpretation), or when no action is necessary. A letter, though it may also serve as correction, may be discounted by readers as an aggrieved author’s opinion, which is precisely why many authors find this remedy deficient.

Moldea has stated for the record that if the New York Times Book Review had published his letter, not an overlong one by prevailing standards, he would not have sued. Times counsel George Freeman confirmed that the Times knew this but declined to publish the letter anyway, on principle, finding its charges baseless. Rebecca Sinkler further explained that the New York Times Book Review seeks to protect reviewers from authors’ bias just as it protects authors from reviewers’ bias.

Late in 1991, Moldea asked the National Book Critics Circle to take a public position in support of his suit. I was president of the NBCC at the time and forwarded his request to the NBCC board, a body of 24 book editors and free-lance critics. I also spoke to George Freeman and Rebecca Sinkler at that time so as to be able to present their side of the dispute to the NBCC board.

After much consideration, the board decided to take no position on the matter. Thinking as reviewers faced with the prospect of future litigation if their work struck an author as defamatory, some on the board tacitly sided with the New York Times, which had written in its brief: “It is not unreasonable to expect that if Moldea’s lawsuit is permitted to continue, critics may become timid. For the threat posed by protracted and expensive litigation surely will encourage reviewers to ‘steer far wider’ of dangerous zones. . . . To the extent that criticism becomes flannel-mouthed or perfunctory, all of us, authors included, are impoverished.”

Others on the board, perhaps thinking of their vulnerability as authors to essentially unaccountable reviewers, tacitly sided with Moldea, who claims: “If I win this case, the worst that can happen is that reviewers and other opinion-writers will suddenly have a responsibility to be accountable for what they write. Any writer who cannot live with that should not be in this profession.”

Unlike the NBCC, however, the court must decide between these contending positions. The New York Times has asked the entire 15-judge appeals court to review the decision made by three of its members. If it affirms the three judges’ decision, then the case will be remanded to the district court for rehearing, this time before a jury. If the jury finds that Moldea has suffered libel, a further determination must then be made as to whether he deserves the $10 million he seeks in punitive damages. At this point, his case will require a judgment about the power of even an uncorrected, defamatory review in the New York Times Book Review to destroy a book. If the three judges’ opinion is overruled, Moldea says he will appeal to the U.S. Supreme Court.

Moldea alleges that after Eskenazi’s review and, even more, after he brought suit, publishers were loath to consider his work, afraid to be on the wrong side of a newspaper that could do so much harm or good to their future products. This is even more difficult to quantify; but before this case has come to its conclusion, this too may be debated in open court, and much of literary America may be hanging on every word.