The Nation : PERSONAL PERSPECTIVE : Can a Bad Book Review Ruin a Writing Career?

On Aug. 18, 1989, William Morrow & Co. published my fourth book, “Interference: How Organized Crime Influences Professional Football.” It contained well-documented charges of the Mafia’s penetration into the multibillion-dollar world of professional football, including new information on illegal gambling and fixed games.

Anticipating a public-relations problem, the National Football League had attacked me seven months before the book’s release. Yet, no libel suits were either threatened or filed against “Interference.” No source quoted in the book denied the accuracy of his or her quote.

But as I wrote in my book’s prologue, the NFL, upon publication, “will remain aloof from the charges, deny them from afar, and then send its front line of defense, the loyal sportswriters, to attack the messenger.”

On Sept. 3, 1989, the week before the NFL season began, Gerald Eskenazi, a New York Times sportswriter who has covered the NFL for three decades, reviewed my book for the newspaper’s Book Review. In his article, Eskenazi grossly misrepresented the facts in my book, concluding that it contained “sloppy journalism,” a charge that, if true, could end a nonfiction author’s career.

The reviewer, however, based his opinion on a series of provably false assertions--i.e., he made statements of fact that were simply not true. Eskenazi claimed I stated facts that I never did, or that I omitted other facts that were clearly in my book.

For example, as New York magazine observed: “(Eskenazi charges that): ‘(Moldea) revives the discredited notion that Carroll Rosenbloom . . . met foul play when he drowned in Florida 10 years ago.’ In fact, Moldea interviewed witnesses who were at the scene, obtained the autopsy photos and concluded on Page 360 of ‘Interference’: ‘Rosenbloom died in a tragic accident and was not murdered.’ ”

Writing for the Columbia Journalism Review, Christopher Hanson stated: “Moldea has reason to be upset . . . (A)fter comparing what the book says with what the review says it says, one might conclude that Eskenazi was some distance from Pulitzer territory.”

After reading Eskenazi’s review, I wrote to him and asked for a retraction, citing his errors. He did not reply.

I retained an attorney who called the Times’ chief in-house counsel and asked for a correction. The Times refused. It is worth noting that two years earlier, in April, 1987, the Times had been forced to print a correction regarding a previous review of my work.

In an effort to defend myself, I wrote to the editor of the Book Review, who never responded. I then tried to get my side of the story out through another publication, but no one gave me the opportunity. To this day, not one reporter has done a story that simply compares what the book says vs. what the Times said it says.

Unfortunately, a lawsuit became my only means of self-defense.

In August, 1990, after countless publishers, agents and colleagues, among others, continued to throw this false review in my face, I retained attorney Roger C. Simmons, who took my case on a contingency-fee basis. After notifying the Times that we were about to sue and still receiving no response, a suit was filed with the U.S. District Court in Washington. We charged that publication of the review had destroyed my career.

Our case piggybacked the June, 1990, U.S. Supreme Court decision, Milkovich vs. Lorain Journal, which stated, in part, that published opinions may be libelous if they are based on provably false facts. The Times immediately engaged our suit, filing a motion for summary judgment, proclaiming that this litigation jeopardized the “robust exchange of views in the marketplace of ideas.”

Certainly, the Times’ refusal to publish my letter to the editor, which would have completely averted the suit, denied me the opportunity to participate in this “exchange of views.”

Since the suit was filed, editorials and Op-Ed columns have relentlessly portrayed me as a thin-skinned author with “a wounded ego” who simply received a bad review and, thus, retained a top-legal gun to challenge the right of all reviewers and opinion writers to state their opinions freely and fully. This is not true. As a longtime writers’ rights activist, I resent being forced to deny such a charge.

In January, 1992, U.S. District Judge John Garrett Penn--in a narrow view of Milkovich--granted the Times’ motion and dismissed our case. Then, on Feb. 18, 1994, after six months of study and debate, the federal appellate court overturned Penn’s ruling. The result was an avalanche of editorials and Op-Ed columns fiercely condemning and misrepresenting the ruling.

Completely ignored in all these articles was the key passage of the appellate opinion: “We certainly do not mean to suggest that all bad reviews are actionable. We do hold, however, that assertions that would otherwise be actionable in defamation are not transmogrified into non-actionable statements when they appear in the context of a book review.”

Essentially, the appellate court stated that opinion writers should be held to the same standard of accuracy and honesty as news reporters.

Then on May 3, the appellate court inexplicably reversed itself. Without the benefit of any new evidence, legal precedent or oral argument--but following the firestorm of editorial and Op-Ed criticism of their first decision--the same judges wrote: “Indeed, some bad reviews may be written with an aim to damage a writer’s reputation. There is nothing that we can do about this, at least without unacceptably interfering with free speech.”

In effect, the appellate court, in its virtually unprecedented act, created an exemption from libel for opinion writers when they engage in “mischievous intent,” as the court now calls it. News reporters and nonfiction authors have no such exemption and continue to be held to a “malice” standard. Under this double standard of journalism, readers will never be sure whether a published opinion is based on real facts--because opinion writers have no responsibility to be accountable for what they write.

Essentially, the court of appeals--in a decision that will surely be reviewed by the U.S. Supreme Court--has done nothing less than declare an open season for unchecked criticism on authors and their published works.

In a May 7 editorial, the New York Times self-righteously concluded that the appellate court’s second opinion safeguarded “spirited argument,” adding: “The whole society, freer to speak and argue about matters of public concern, is the winner.”

Again, the Times’ failure to publish my letter to the editor in response to a false and misleading review of “Interference”--as well as my reply to its May 7 editorial--have denied me the opportunity to participate in “spirited argument.”

This is not journalism; this is corporate tyranny.*