How Powerful Interests Make Books Vanish
Author Dan Moldea on the policing of our literary culture.
After the publication of a lying review of my book, I wanted opinion writers to be held to the same standards of accuracy and honesty as news reporters. The result? My book and I became “forbidden.”
On August 18, 1989, William Morrow and Company published my fourth book, Interference: How Organized Crime Influences Professional Football. The work contained well-documented evidence of the Mafia’s penetration into the multibillion dollar world of professional football, including new information about mobbed-up team owners, killed investigations, and even fixed games.
Anticipating a public relations problem, the National Football League had already reacted strongly to my work, initiating attacks against me seven months before the book’s release date. In response to the NFL’s assault, I aggressively defended Interference during a first-rate, 13-city media tour arranged by William Morrow.
Meantime, no libel suits were either threatened or filed against Interference. No source quoted in the book denied the accuracy of his or her quote. In fact, during my entire, 40-year career—which has included eight controversial true-crime books—I have never had to defend myself in a defamation suit for anything I have ever said or written.
However, I predicted in the prologue to Interference that, upon publication, the NFL “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.”
Indeed, on September 3, 1989, the week before the NFL season began, Gerald Eskenazi, a New York Times sportswriter who had covered the National Football League for three decades, reviewed my book for the New York Times Book Review. In this review, Eskenazi grossly misrepresented the facts contained in my work, concluding that my book contained “sloppy journalism,” a charge that, if true, could end a nonfiction author’s career.
But the reviewer had based his opinion on a series of provably false facts. In other words, he made statements of fact that were simply not true. Incredibly, he claimed that I stated facts I never did, or that I omitted other facts that were clearly contained 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.’”
After reading Eskenazi’s false and misleading review, I immediately wrote to the reviewer and asked for a retraction, citing the errors he made in the review. He did not reply.
I then retained an attorney who called the Times’s chief in-house counsel and asked that the Times publish corrections. The Times refused.
In a mere effort to defend myself against the false charges against my work in Interference, I wrote a letter to the editor of the New York Times Book Review, who refused to publish my defense.
Finally, I tried to get my side of the story out through other publications. But, given the task of going up against the New York Times, no one would give me the opportunity to do so.
Unfortunately, with my career in serious jeopardy, a lawsuit became my only means of self-defense. And from the moment that my attorney, Roger Simmons, filed the suit on my behalf, I knew that, though the legal process, my work in Interference would be subjected to standards that the New York Times did not even hold its own reporters.
What the Times did in its review was tantamount to an act of censorship of my work. And the National Football League was the beneficiary of that act.
Our case piggybacked the June 1990 US Supreme Court landmark decision, Milkovich v. Lorain Journal Company, 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 and high-handedly proclaiming that my litigation jeopardized the “robust exchange of views in the marketplace of ideas.” Certainly, the Times’s refusal to publish my letter to the editor—which would have completely averted this litigation—denied me the opportunity to participate in this cherished “exchange of views.”
From the outset of the filing of this suit, editorials and op-ed columns relentlessly brushed me off as a thin-skinned author with “a wounded ego,” who simply received a bad review, and then retained a top legal gun to challenge the right of all reviewers and opinion writers to state their opinions freely and fully. This was simply not true. And, as a longtime writers’ rights activist, I resented being placed in a position where I was constantly forced to deny such an unfair charge.
The obvious tactic employed by the media was to punish me for having the audacity to defend myself, while the reviewer and his newspaper which started all of this, as well as the National Football League, were given a complete pass from the fray.
To no one’s surprise, in January, 1992, US District Judge John Garrett Penn—in a narrow view of Milkovich—granted the Times’s motion and dismissed our case.
Then, on February 18, 1994, after over six months of study and debate, the federal appellate court for the D.C. circuit shocked the media world when it overturned Penn’s ruling. The court of appeals passionately ruled, 2–1, in my favor, immediately causing an onslaught of cataclysmic editorials and shoddy op-ed columns, led by, among others, the Washington Post and the Boston Globe, which was owned by the New York Times. (In an editorial, the Globe had actually fabricated a quote from me—for which it had to publish a correction.)
Completely ignored by these usually responsible publications was the key passage of the appellate opinion, which stated: “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 nonactionable 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 standards of accuracy and honesty as news reporters. That was the principle upon which my attorney and I based our lawsuit.
In support of the ruling, the Legal Times published an article on March 14 that clarified the decision by stating, “[T]he Moldea ruling will most likely prompt book reviewers to do more factual homework, a habit the First Amendment cherishes. And to the extent the decision chills reviews that maliciously and factually mislead the reader—the proof required for damage recovery when the book author is a public figure—it chills what ought to be chilled.”
Then, on May 3, the appellate court suddenly and inexplicably reversed itself in the midst of a firestorm of editorials and op-ed criticism of its first decision. Without any new evidence, legal precedents, or oral arguments, the judges sheepishly issued a new unanimous opinion: “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 this bizarre and unprecedented reversal, created an exemption from libel for opinion writers when they engaged in “mischievous intent,” as the court now called it. News reporters and nonfiction authors had no such exemption and continued to be held to a “malice” standard.
Essentially, the court of appeals did nothing less than declare an open season for unchecked criticism on authors and their published works.
Nevertheless, the New York Times concluded in its self-congratulatory May 7, 1994, editorial 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.”
However, the Times’s original failure to publish my letter to the editor in response to its false and misleading review of my book—as well as my reply to its May 7 editorial—denied me the opportunity to participate in this “spirited argument.”
Notably, the responsible reporting of some publications countered at least some of the op-ed nonsense in the aftermath of the reversal.
For instance, in the Nation, journalist Carlin Romano wrote:
Moldea v. New York Times is the most provocative First Amendment case in years. It offers subtle facts and complicated philosophical questions about the respective verifiability of facts and evaluations. It pits deeply entrenched legal ideals against each other: the “breathing space” that criticism needs to be effective, and the right of an individual to defend his reputation. Perhaps most singularly, it exhibits the Times, normally on the noble side of free-expression controversies, confronting its raw power in the marketplace of ideas, particularly in regard to books . . .
Learning to love Moldea v. Times as a watershed libel ruling requires bringing together the facts of the case, the legal analysis they generate and the realities of power politics in book reviewing. It isn’t a pretty picture . . .
Appreciating why Moldea v. Times turned into such a mess requires reflection on a too-little-pondered subject: how the Times, as a matter of practice rather than policy, often discourages free expression.
Writing for the Columbia Journalism Review, reporter 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.”
Sadly, after its release in 1989, Interference did not have much of a life. And I appreciate Open Road Media for resurrecting this book from the dead 25 years later as part of its Forbidden Bookshelf series.
Dan E. Moldea, a specialist on organized-crime investigations since 1974, bestselling author, and independent journalist, has published eight nonfiction books including The Hoffa Wars: Teamsters, Rebels, Politicians and the Mob and Interference: How Organized Crime Influences Professional Football. He is currently at work on his ninth true-crime book.