In a highly unusual move, a U.S. appeals court here reversed itself Tuesday and ruled that the New York Times cannot be forced to pay damages for publishing a harshly critical book review.
The ruling nullifies a controversial opinion issued by the court in February that appeared to open the door to libel suits against critics who pan movies, plays, restaurants, books or anything else offered to the public.
Judge Harry Edwards, reversing his earlier opinion, declared that he now believes “spirited critiques of literary works” must be shielded from libel suits, except when they launch a false “personal attack” on the author.
The case is a $10-million lawsuit filed against the newspaper by Dan E. Moldea, author of a book linking organized crime to the National Football League. A book reviewer had written last September that Moldea was guilty of “sloppy journalism.”
Moldea’s lawsuit had been revived by the appeals court in a 2-1 ruling. “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 surgeon in a legal or medical journal,” Judge Edwards wrote in the original ruling.
In response, critics and columnists dealt Edwards plenty of harsh criticism and at least a few accusations of incompetence. For example, columnist James J. Kilpatrick slammed the decision but conceded that he was thinking twice about “what I myself write about fat-headed federal judges.”
By Tuesday, Edwards had switched sides and joined the critics of his original opinion. In a 20-page ruling, Edwards confessed to an “error of judgment.”
“There is a long and rich history in our cultural and legal traditions of affording reviewers latitude to comment on literary and other works,” Edwards wrote. “While a bad review necessarily has the effect of injuring an author’s reputation to some extent . . . , criticism’s long and impressive pedigree persuades us that--while a critic’s latitude is not unlimited--he or she must be given the constitutional ‘breathing space’ appropriate to the genre.”
Judge Patricia Wald switched sides with Edwards for a 3-0 ruling. The new decision, at least for now, kills Moldea’s lawsuit.
Lawyers for the New York Times praised the judge’s reversal as “courageous.” Moldea denounced it as “very bizarre.”
“I am amazed,” said Prof. Rodney Smolla, a libel expert at the College of William and Mary. “I’ve never heard of one like that in my life. I have heard of circuit conflicts (within an appeals court) but not an interpersonality split in one judge,” he joked.
Other lawyers said that, while it is quite unusual, it is not unprecedented for judges to change their mind and retract an earlier opinion.
The lawyer who represented Moldea said that he will ask the full 11-member U.S. Circuit Court of Appeals for the District of Columbia to reconsider the decision. Failing that, he will ask the Supreme Court to hear the case.
“We waited four years for a trial. Now they’ve jerked it away, and that hurts,” said Roger Simmons, Moldea’s attorney.
Throughout his legal fight, Moldea has said that he sued the newspaper over what he considered false and misleading statements in its book review, not over the sharp criticism itself.
A veteran investigative reporter, Moldea drew links between the mob and the NFL in his 1989 book, “Interference: How Organized Crime Influences Pro Football.”
But on Sept. 3, New York Times sports writer Gerald Eskenazi panned the book and said that it was full of “errors and unfounded insinuations.” For example, the reviewer wrote, Moldea “revives the discredited notion that (former Los Angeles Rams owner) Carroll Rosenbloom met foul play” when he drowned off a Florida beach.
Moldea’s suit notes, however, that his book concludes by saying: “In short, the evidence appears to be clear that Rosenbloom died in a tragic accident and was not murdered.”
Citing this and five other examples, Moldea maintains that he was damaged by the reviewer’s false statements about his book.
His claim was boosted by a 1990 Supreme Court ruling which said that opinion columnists are no longer immune from libel suits. If they make factually false and hurtful statements--"Smith lied in his testimony,” for example--they too can be subjected to a libel suit, just like a news reporter.
In the February opinion, Judge Edwards and his colleagues had said that jurors should review the evidence and decide who is telling the truth: the author or the reviewer.
In the new opinion, however, they say that the reviewers should be protected in their right to evaluate books, without facing second-guessing by a jury.