Libel in Reviews: The Book Is Still Open : Supreme Court decision affirms First Amendment rights, but clarification is needed

The free expression of opinion is democracy’s oxygen. Choke it off and democracy begins to die. That’s why we applaud the U.S. Supreme Court decision last week to let stand an appeals court opinion in favor of the New York Times and against author Dan E. Moldea, who had filed a lawsuit claiming he was libeled in a 1989 review of his book on football, “Interference.” We hope all forms of opinion will be more secure because of this decision in a case of literary opinion.

For years in American jurisprudence it has been understood that the expression of opinion enjoys a greater immunity from charges of libel than does the reporting of fact. But greater immunity does not equal total immunity, as the court made clear in a much-noticed 1990 decision (Milkovich vs. Lorain Journal Co.). To give an example: If John Jones is in fact not a liar, the first three words in the sentence “In my opinion John Jones is a liar” do not guarantee immunity from libel charges.

Moldea’s claim was that errors made by the reviewer amounted to libel against the author. In fact, the review did contain some errors; Moldea did have some valid points. The Court of Appeals first ruled that the errors in the review could constitute libel. But then, months later, the court, to general amazement, reversed its decision, stating that it had “failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review, a genre in which readers expect to find spirited critiques of literary works . . . that are capable of a number of rational interpretations.”

Note that Moldea II, as the Appeals Court termed its reversal, said virtually nothing about context other than that the article was a book review. But Moldea I had stated that genre alone could not determine whether a statement was libelous, and Moldea II confirmed this principle.

In declining to review the latter decision, the Supreme Court may have had in mind one of the other considerations of context advanced by the New York Times. Arguing against the Court of Appeals’ initial decision for Moldea, the newspaper said: “The decision utterly fails to recognize the difference between a subjective evaluation of a writer’s work and a direct, defamatory statement about the writer himself. The consequences for book reviews can hardly be overstated. Literary--or law--reviews that find books--or a brief--to be ‘badly reasoned,’ or ‘written poorly,’ become as actionable as a review that states ‘the author’s alcoholism has clearly affected his work.’ ”

Was this distinction raised by the New York Times the one that persuaded the high court, or was it something else? At this point, we do not know. The Moldea case was settled without that point having been nailed down. So perhaps free speech might be more honorably and effectively defended if we had a better case to guide us. Claiming our First Amendment freedom to criticize legal briefs and court decisions, we suggest that the complex matter of responsibility to fact even within the expression of opinion deserves further attention.