Moldea v. New York Times Co.

• Decision Date: 18 February 1994
• Docket Number: No. 92-7065,92-7065
• Citation: 15 F.3d 1137,304 U.S. App. D.C. 406
• Parties: , 62 USLW 2526, 22 Media L. Rep. 1321 Dan E. MOLDEA, Appellant, v. NEW YORK TIMES COMPANY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1137

15 F.3d 1137

304 U.S.App.D.C. 406, 62 USLW 2526,

22 Media L. Rep. 1321

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 Feb. 18, 1994.

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

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

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

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

Opinion for the Court filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Chief Judge MIKVA.

HARRY T. EDWARDS, Circuit Judge:

In this appeal, Dan E. Moldea challenges the District Court's grant of summary judgment in favor of the New York Times Company, Inc. ("Times"). Moldea v. New York Times Co., 793 F.Supp. 335 (D.D.C.1992). Moldea is an investigative journalist and the author of the book Interference: How Organized Crime Influences Professional Football ("Interference"), in which he argues that the National Football League ("NFL") is tainted by connections to organized crime and professional gambling. Appellee Times published a highly unfavorable review of Interference ("the Times review" or "review") in the New York Times Book Review, a supplement to the Sunday edition of its daily newspaper. ¹ Moldea contends in this suit that the Times review defamed him by assailing his competence as a journalist.

Without permitting either party to conduct discovery, the District Court ruled that the Times review was not actionable in libel because it consisted only of unverifiable statements of the reviewer's opinion of Moldea's book, or of statements that no reasonable juror could find to be false. We reverse and remand for further proceedings because the trial court erred in ruling that the Times review could not be defamatory as a matter of law. The review attacks Moldea's competence as a practitioner of his chosen profession, a matter archetypically addressed by the law of defamation. We hold that some of the challenged characterizations of Interference are sufficiently factual that a jury could meaningfully determine their truth or falsity. Further, while some of the review's characterizations are irrefutably true and thus not actionable, the accuracy of other statements in the review is sufficiently open to dispute that we cannot hold as a matter of law that no reasonable juror could find them to be false. We express no opinion on the ultimate merits of Moldea's libel claim, but we conclude that it was error for the District Court to dismiss this suit at this stage of the litigation.

Finally, we hold that the trial court erred in ruling that Moldea could not state a claim for false light invasion of privacy because he did not allege the publication of "private information." Moldea, 793 F.Supp. at 337. In order to state a claim for false light defamation, a plaintiff need only allege that the defendant published untrue facts concerning the plaintiff that placed him in a false light that would be highly offensive to a reasonable person, not that the defendant published "private" information.

I. BACKGROUND ²

Moldea is an investigative journalist who specializes in stories about organized crime. He is the author of numerous magazine and newspaper articles; he also has authored three books in addition to the one at issue in this case: The Hoffa Wars: Teamsters, Rebels, Politicians and the Mob; The Hunting of Cain: A True Story of Money, Greed and Fratricide; and Dark Victory: Ronald Reagan, MCA and the Mob. Moldea's most recent book is Interference: How Organized Crime Influences Professional Football, published in 1989 by William Morrow and Company.

The instant case grows out of a highly critical review of Interference that appeared in the New York Times Book Review on September 3, 1989. The review was written by Gerald Eskenazi, a sportswriter for the Times. Moldea contends that, prior to the publication of the Times review, he was a respected writer and his book had excellent prospects of success. He had embarked on a thirteen-city promotional tour for Interference which included interviews on two nationally broadcast television programs, and his publisher had ordered second and third printings of the book in anticipation of strong sales. Moldea alleges, however, that the Times review's attack on his work both destroyed public interest in his book and effectively ended his career as an investigative journalist. Appellant further contends that, since the review appeared, he has been unable to interest other publishers in his work or to obtain bookings as a lecturer, 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. The Times also moved for a stay of discovery, which was granted. On January 31, 1992, the District Court granted summary judgment in favor of the Times, on the ground that Moldea's claim was not actionable as a matter of law. Moldea, 793 F.Supp. at 338. ³

The District Court based its ruling on a finding that the portions of the Times review to which Moldea took exception consisted only of statements of nonverifiable opinion about a literary work, or were so clearly true that no reasonable juror could find them false. Thus, the trial court concluded that it would be meaningless for either party to attempt to prove the statements' truth or falsity before a jury.

In his complaint, 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. The District Court considered only one of the challenged statements at any length. In this passage Eskenazi, after offering faint praise for some aspects of Interference, wrote:

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

The phrase "too much sloppy journalism" was the focal point of the trial court's decision, and the court adjudged it "a description of a literary work from one's personal perspective." Moldea, 793 F.Supp. at 337. The District Court ruled in a perfunctory footnote that each of the remaining portions of the review was "either a supported statement of fact or a nonverifiable opinion." Id. at n. 3.

Moldea contends that each of the other five statements he challenges also makes him appear to be incompetent or dishonest, and does so by making statements about his book which are verifiably false. The five additional challenged passages are as follows:

(1) Mr. Moldea is obsessed, for example, with Joe Namath. [Moldea] says that, as a rookie, the New York Jets' quarterback roomed with 'Joe Hirsch, who wrote a betting line and an inside information sheet on professional sports.'

Heady revelations--except that the courtly Mr. Hirsch happened to be the racing columnist and chief reporter for The Morning Telegraph (now The Racing Form). He still is. He never picked horses, never wrote 'an inside information sheet.' He is, in essence, the writer for the world of horse racing.

Moldea contends that this passage is verifiably false because page 139 of Interference does reveal that Joe Hirsch wrote for The Morning Telegraph, and because that publication is in fact "an inside information sheet."

(2) 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.

Moldea argues that this passage is false because his description of the Namath-Michaels meeting on pages 196-99 of his book makes no suggestion that the meeting was anything other than innocent.

(3) [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.

According to Moldea, this passage is verifiably false because page 360 of Interference states that Moldea's investigations uncovered new evidence proving that Carroll Rosenbloom was not murdered.

(4) [Moldea] also offers still another recitation of the 1958 playoff game between the Baltimore Colts, then owned by Rosenbloom, and the New York Giants. The Colts disdained a field-goal attempt in overtime, choosing instead to go for a touchdown after they got close to the goal line. Mr. Moldea's implication is that they wanted to win by more than three points to beat the point spread.

The Colts 'again refused to send in kicker Myhra to end the game' with a field goal, [Moldea] complains. What [Moldea] doesn't state in his text is that Steve Myhra was among the worst place-kickers in the league, having missed three extra points and more than half his field-goal attempts during the season.

It is true that the text of Interference does not expressly state that Baltimore's place-kicker was among the worst in the NFL. However, a footnote to the book's discussion of the 1958 Colts-Giants playoff game does state that Baltimore had the second-worst field goal percentage in the NFL that year, while their quarterback and running back had very low turnover rates. Interference, at 444 n. 1. Based on the fact that Interference reveals this information,...