Moldea v. New York Times Co., 92-7065

• Citation: 22 F.3d 310,306 U.S. App. D.C. 1
• Decision Date: 03 May 1994
• Docket Number: No. 92-7065,92-7065
• Parties: , 62 USLW 2684, 22 Media L. Rep. 1673 Dan E. MOLDEA, Appellant, v. NEW YORK TIMES COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 310

22 F.3d 310

306 U.S.App.D.C. 1, 62 USLW 2684, 22

Media L. Rep. 1673

Dan E. MOLDEA, Appellant, v. NEW YORK TIMES COMPANY, Appellee.

No. 92-7065.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 14, 1993.

Decided May 3, 1994.

On Appeal from the United States District Court for the District of Columbia (No. 90cv02053).

Roger C. Simmons argued the cause and filed the briefs for the appellant.

Bruce W. Sanford argued the cause for appellee. With him on the brief were Henry S. Hoberman, and Matthew G. Weber.

On Appellee's Petition for Rehearing

Before: MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

I often have been struck by Justice Stewart's concurring statement in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), a case in which the Court reconsidered and overruled an earlier decision. Justice Stewart remarked that, "[i]n these circumstances the temptation is strong to embark upon a lengthy personal apologia." Id. at 255, 90 S.Ct. at 1595. This remark has special poignancy for me now, because it underscores the distress felt by a judge who, in grappling with a very difficult legal issue, concludes that he has made a mistake of judgment. Once discovered, confessing error is relatively easy. What is difficult is accepting the realization that, despite your best efforts, you may still fall prey to an error of judgment. Like Justice Stewart, I will take refuge in an aphorism of Justice Frankfurter:

Wisdom too often never comes, and so one ought not to reject it merely because it comes late.

Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting).

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In Moldea v. New York Times Co., 15 F.3d 1137 (D.C.Cir.1994) ("Moldea (I)"), this panel was faced with an appeal brought by author and investigative journalist Dan E. Moldea in connection with his defamation action against the New York Times Company, Inc. ("Times"). Moldea's lawsuit alleged that appellee libeled him in a book review (the "Times review" or "review") published in the New York Times Book Review, a supplement to the Sunday edition of its daily newspaper. The review stated that Moldea's book, Interference: How Organized Crime Influences Professional Football ("Interference "), was marred by "too much sloppy journalism," and offered a number of examples of the work's alleged journalistic shortcomings. The District Court granted summary judgment in favor of the Times, ruling that the review in question was not actionable as a matter of law because it consisted only of unverifiable statements of the reviewer's opinion, or of statements that no reasonable juror could find to be false. Moldea v. New York Times Co., 793 F.Supp. 335 (D.D.C.1992). In a 2-1 decision, the panel reversed on the ground that some of the review's characterizations of Moldea's book were potentially actionable because they were verifiable, and could not be held to be true as a matter of law. Moldea (I), 15 F.3d at 1146-48.

After careful consideration of the Times' petition for rehearing and Moldea's response to that petition, we are persuaded to amend our earlier decision. The original majority opinion was generally correct in its statement of the law of defamation. Unfortunately, that opinion 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 they understand to be the reviewer's description and assessment of texts that are capable of a number of possible rational interpretations. While there is no per se exemption from defamation for book reviews, our initial resolution of this case applied an inappropriate standard to judge whether the Times review was actionable.

In light of our reconsideration of this case, we hold that the challenged statements in the Times review are supportable interpretations of Interference, and that as a matter of law the review is substantially true. Accordingly, we affirm the District Court's grant of summary judgment in favor of the Times.

I. BACKGROUND

The facts of this case are fully explained in Moldea (I), so we need only briefly sketch them here. The instant case grows out of a highly negative review of Interference written by New York Times sportswriter Gerald Eskenazi, and published in the New York Times Book Review on September 3, 1989. ¹ Moldea contends that prior to the publication of this review he was a respected author and journalist, and that both he and his publisher anticipated that Interference, his fourth book, would be a success. Appellant alleges that the review's harsh critique of Interference destroyed the book's prospects for commercial success, and effectively ended his career as a writer as well, because he is now unable to interest other publishers in his work. Appellant also claims that, because of the review, he can no longer obtain bookings for lectures and other public appearances, activities which formerly provided him with significant income.

On August 24, 1990, Moldea filed suit against the Times alleging defamation and false light invasion of privacy. The Times moved for summary judgment before either party had begun discovery, and, on January 31, 1992, the District Court granted the Times' motion based solely on the texts of the review and of Interference itself. The trial court ruled that Moldea's claim was not actionable as a matter of law because the portions of the Times review challenged in his suit either were statements of opinion about a literary work, or were so clearly true that no reasonable juror could find them to be false. Moldea, 793 F.Supp. at 338.

In the District Court and on appeal, Moldea alleged that six specific statements in the Times review had defamed him by accusing him of being an incompetent practitioner of his chosen profession, investigative journalism, and by supporting that accusation with false characterizations of his book. We held in Moldea (I) that one of these passages was a statement of opinion that implied defamatory facts because it accused Moldea of being an incompetent journalist. That statement read:

But there is too much sloppy journalism to trust the bulk of this book's 512 pages--including its whopping 64 pages of footnotes.

See Moldea (I), 15 F.3d at 1145-46. Moldea (I) went on to hold that the remaining statements Moldea challenged were offered by Eskenazi as factual examples of Interference 's alleged "sloppiness," and that "[i]n order for the review to be nonactionable as a matter of law, the Times must show that it offered true facts in support of its judgment that served to support its statement of opinion." Id. at 1146.

Our earlier decision in this case held that three of the five remaining statements challenged by Moldea on appeal were not actionable in defamation. Of the three nonactionable passages, two were incontrovertibly true statements based upon facts revealed in the text of Interference, while the third was a supported statement of opinion. See id. at 1146-49. Moldea (I) held, however, that two of the challenged passages in the Times review were verifiable, and that a reasonable juror could conclude that they were false. First, the review stated:

Mr. Moldea tells as well of Mr. Namath's 'guaranteeing' a victory in Super Bowl III shortly after a sinister meeting in a bar with a member of the opposition, Lou Michaels, the Baltimore Colts' place-kicker. The truth is that the pair almost came to blows after they both had been drinking; and Mr. Namath's well-publicized 'guarantee' came about quite innocently at a Miami Touchdown Club dinner when a fan asked him if he thought the Jets had a chance. 'We'll win. I guarantee it,' Mr. Namath replied.

Second, the review opined that:

[Moldea] revives the discredited notion that Carroll Rosenbloom, the ornery owner of the Rams, who had a penchant for gambling, met foul play when he drowned in Florida 10 years ago.

Our initial opinion in this case concluded that a reasonable juror could find that the Times review had mischaracterized Interference 's portrayal of each of the foregoing two events. Accordingly, we held that it was error for the trial court to grant summary judgment at so early a stage of this litigation.

II. DISCUSSION

A. The Importance of Context

Moldea (I) noted that, "under the established case law, our analysis of this case is not altered by the fact that the challenged statements appeared in a 'book review' rather than in a hard news story." Moldea (I), 15 F.3d at 1145-46. This statement is correct insofar as it suggests that there is no per se exemption from defamation for book reviews. Even the Times concedes this point in its Petition for Rehearing. See Petition for Rehearing at 4 ("No one doubts that a book review can be actionable."). A writer may not commit libel at will merely by labelling his work a "review." Moldea (I) is short-sighted, however, in failing to take account of the fact that the challenged statements were evaluations of a literary work which appeared in a forum in which readers expect to find such evaluations. As the Supreme Court has recognized, writers must be given some leeway to offer "rational interpretation" of ambiguous sources. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 519, 111 S.Ct. 2419, 2434, 115 L.Ed.2d 447 (1991). Thus, when a reviewer offers commentary that is tied to the work being reviewed, and that is a supportable interpretation of the author's work, that interpretation does not present a verifiable issue of fact that can be actionable in defamation.

The fundamental framework established in Moldea (I) for defamation actions is sound, and we do not modify it in this decision. As we stated in our initial...