Dan E. Moldea v. New York Times Company

H37 anti-marijuana prejudice Order, tration’s 10,502-03. as evi- Final Fed.Reg. at by denced this court’s need to remand their findings These are with consistent the view petition they on four occasions and what only rigorous proof scientific satisfy can prior describe as the Administrator’s “unusu- “currently accepted CSA’s medical use” ally rejecting strident decision” the adminis- requirement. 10,500. Id. at judge’s trative law recommendation that the drug They be rescheduled. also cite various III. Conolusion by present Administrator in reasons, For foregoing petitions the Final Order as evidence of a lack of review are See, objectivity. e.g., 10,502 Fed.Reg. Denied. (“The only favorable evidence that by [petitioners]

found consists of stories (“[s]ick users”);

marijuana id. people are

objective observers, scientific especially when health.”); 10,503

it comes to their own id. at (“Sick men, women and children can be

fooled these experiment claims and drug.... It ais cruel hoax to offer false

hope desperately people.”). ill MOLDEA, Dan E. Appellant, impressed.

We are not The need to remand a ease times several is not evidence v. per agency se of prejudice. Nor do think we YORK COMPANY, NEW TIMES petitioners statements cited show Appellee. unfair, the Administrator was especially when considered in the context of a reason No. 92-7065. preference able rigorous proof scientific United States Court of Appeals, evidence, over anecdotal even reported when District of Columbia Circuit. by respected physicians.

Moreover, Argued Sept. our 1993. review of the record convinces us that find Administrator’s Decided Feb. ings supported by are substantial evidence. (1988) (substantial §

See 21 U.S.C. evi

dence standard applies findings of fact in

rescheduling proceedings). The Final Order length.

canvasses the record at It recites testimony experts of numerous mari

juana’s medicinal prov value has never been

en in sound scientific studies. The Adminis reasonably

trator weight accorded more opinions experts of these than to the testimony

anecdotal laymen and doctors petitioners

on which relied. The Administra

tor noted that

[w]ith one exception, none of [these doc- identify

tors] could under oath the scienti-

fic they studies swore Only relied on.

one had enough knowledge to discuss the

scientific technicalities involved. Eventu-

ally, each one basing admitted he was evidence, on anecdotal on stories

he patients, heard from impres- and on his

sions about drug.

Roger Simmons, DC, Washington, C. ar- gued the cause and filed the briefs for the appellant. Sanford, DC, Washington,

Bruce W. ar- gued the appellee. cause for him With on Hoberman, Henry the brief were S. and Mat- Weber, Washington, thew G. DC. MIKVA, Judge, Before: Chief WALD and EDWARDS, Judges. Circuit Opinion by for the Court filed Circuit Judge EDWARDS.

Dissenting opinion by filed Judge Chief MIKVA. EDWARDS,

HARRY T. Judge: Circuit appeal, challenges Dan E. Moldea grant the District summary judg- Court’s ment in favor of the New York Times Com- (“Times”). pany, Inc. Moldea v. New York Co., (D.D.C.1992). F.Supp. Times journalist investigative Moldea is an and the Orga- author of the book How Interference: nized Crime Foot- Influences Professional (“Interference”), argues ball in which he (“NFL”) League the National Football by organized tainted connections to crime professional gambling. Appellee Times published highly unfavorable review of In- (“the “review”) Times review” or terference Review, in the New York Times Book supplement Sunday daily to the edition of its newspaper.1 Moldea in this suit contends that the Times him review defamed assail- ing journalist. competence as a permitting party Without either conduct discovery, the District Court ruled Times was not be- review actionable libel cause consisted of unverifiable state- ments of the reviewer’s of Moldea’s book, or of statements that no reasonable juror could find to be false. We reverse and reprinted Appendix 1. The full text of the book review at issue in this case is in an to this decision. Story Money, A True Greed and proceedings because the Cain: further remand for Fratricide; Victory: Rea- and Dark Ronald ruling the Times trial erred court gan, Moldea’s most a matter MCA and Mob. review could not be Organized How compe- recent book attacks Moldea’s of law. The review Interference: Football, pub- profes- Crime of his chosen practitioner tence as a Influences Professional sion, lished in 1989 William Morrow Com- archetypically addressed a matter pany. hold that some of law of defamation. We challenged characterizations Interfer- grows highly out of a The instant case jury sufficiently factual that a ence are appeared review of critical falsity. truth or meaningfully determine their Book Review on in the New York Times Further, of the review’s charac- while some September The review was written 1989. irrefutably true and thus not terizations are Eskenazi, sportswriter a for the Gerald actionable, accuracy the of other statements that, prior Moldea contends to the Times. sufficiently open dispute to in the review is review, a publication of the Times he was hold a matter of law that that we cannot respected excellent writer and his book had juror to be no could find them reasonable prospects of success. He had embarked on a express opinion no on the ultimate false. We thirteen-city promotional tour for Interfer- claim, of Moldea’s libel but we con- merits ence included interviews on two na- which clude that it was error for the District Court tionally programs, and broadcast television stage litiga- suit of the to dismiss this at this publisher his had ordered second and third tion. printings anticipation strong of the in of book however, alleges, sales. Moldea that the Finally, trial court we hold that the erred his work both Times review’s attack on de- ruling in that Moldea could not state a claim stroyed public interest in his book and effec- light privacy he for false invasion of tively investigative an ended his career as allege publication “private of did not Moldea, journalist. Appellant F.Supp. further contends information.” at 337. appeared, review he has been un- light since the In order to state a claim for false defamation, publishers able to interest other in his work plaintiff only allege a need lecturer, bookings as a activities to obtain published the defendant untrue facts con- formerly provided significant which him with cerning plaintiff placed him in a false income. light highly that would be offensive to person, not that the defendant

reasonable 24, 1990, August On Moldea filed suit published “private” information. against alleging the Times defamation and light privacy. false invasion of The Times Background

I. summary judgment moved for before either journalist begun discovery. investigative party Moldea is an who had The Times also organized stay discovery, of specializes stories about crime. moved for which was 31, 1992, magazine granted. January He is the author numerous On District articles; newspaper granted summary judgment has in favor of he also authored Court Times, ground on three books addition to the one at issue Moldea’s claim Teamsters, Reb- was not actionable as a matter of law. Mol case: Wars: Hoffa Mob; dea, els, Hunting F.Supp. Politicians and the at 338.3 sought complaint, 2. Our statement of the facts is based on the amend his in which he to add given by upon 'Supreme account in his brief to this Moldea four causes of action based However, Co., are not relevant to court. these facts Court's decision in Cohen v. Cowles Media — U.S. -, appeal, solely our decision in this which is based 115 L.Ed.2d 586 Co., (1991). and the on the written contents of See Moldea v. New York Times express opinion (D.D.C.1992). F.Supp. Times review. We no as to the The trial court re facts, accuracy portrayal of Moldea's but ground permission fused to amend on the to Court on re- leave these issues the District complaint the amended could not withstand a mand. motion to dismiss and so would be futile. Id. grounds Because we remand on other we need separate day, sought the same not address claims to add in In order issued Moldea by appellant complaint, District Court denied a motion his amended but instruct the District

H41 es, ruling The District Court based its on a never wrote ‘an inside information ’ is, essence, finding portions of the Times review sheet. He the writer exception to which Moldea took consisted racing. world horse of statements of nonverifiable Moldea passage contends that this is verifi- work, literary clearly about or were so true ably page false because 139 of Interference juror that no reasonable could find them does reveal that Joe Hirsch wrote for The Thus, false. the trial court concluded that it Morning Telegraph, and publi- because that meaningless party would be for either cation is fact “an inside information sheet.” attempt prove the statements’ truth or (2) Mr. Moldea tells as well Mr. Namath’s falsity jury. before a ‘guaranteeing’ victory Super Bowl complaint, alleged that six shortly III meeting a sinister in a after specific statements in the Times review had bar with a opposition, member Lou him him accusing being defamed Michaels, place- Baltimore Colts’ incompetent practitioner pro- of his chosen pair kicker. The truth is that the almost fession, investigative journalism, by sup- came to blows both had been after porting that accusation with false character- drinking; and well-publi- Mr. Namath’s izations his book. The District Court con- ‘guarantee’ cized quite came about inno- challenged sidered one of the state- cently at a Miami Touchdown Club din- any length. passage ments at In this Esken- ner when thought a asked him he fan if azi, offering praise after faint for some as- the Jets had a chance. I We’ll win. ’ pects Interference, of wrote: it, guarantee replied. Mr. Namath sloppy journalism But there is too much argues passage Moldea that this is false be- pages— to trust the bulk this book’s512 description of cause his of the Namath-Mi- including whopping pages its notes. 61 meeting chaels on of pages 196-99 his book suggestion no meeting makes was phrase sloppy journalism” The “too much anything other than innocent. point was the focal trial of the court’s deci- sion, (3) adjudged description and the court it “a [Moldea] revives the discredited notion literary personal of a per- Rosenbloom, work from one’s that ornery Carroll Moldea, spective.” F.Supp. 793 at Rams, 337. The owner penchant who had a perfunctory District Court ruled in a footnote gambling, play met when he for foul remaining portions that each of the years drowned ago. in Florida 10 supported review was “either a statement of this, Moldea, According passage is verifi- opinion.” fact or a Id. nonverifiable at n. 3. ably page false because 360 of Interference Moldea contends that each of the other investigations states that Moldea’s uncovered challenges five statements he also makes him proving new evidence that Carroll Rosen- appear dishonest, incompetent to be bloom not murdered. by making does so statements about his book (4) also still another recita- [Moldea] offers verifiably

which are false. The five addition- playoff game tion the 1958 between the challenged passages al are as follows: Colts, Baltimore then owned Rosen- (1)Mr. obsessed, bloom, example, Moldea is and the New York Giants. The for that, says Joe Namath. field-goal attempt [Moldea] Colts disdained a rookie, overtime, quarter- as a the New York choosing go Jets’ instead to Hirsch, back roomed they got with ‘Joe who wrote goal touchdown close to the after betting line and an inside implication line. Mr. Moldea’s is information professional sports.’ sheet on wanted to win more than three points point spread. to beat the Heady except revelations — courtly happened Mr. ‘again Hirsch to be the The Colts to send in kick- refused racing reporter Myhra game’ columnist and er to end the with a chief field (now Morning Telegraph Racing goal, complains. The [Moldea] What [Moldea] Form). picked He still is. He never hors- doesn’t state in his text is that Steve light Court to reconsider those claims in of our decision in this case. (D.C.Cir.), Co., 1287, 1292 place-kickers & 838 F.2d among the worst Jones

Myhra was denied, having missed three extra 488 U.S. league, cert. in the (1988). field-goal his points and more than L.Ed.2d 51 half during the attempts season. Po v. Fraternal Order White does It true that the text is Interference lice, (D.C.Cir.1990), circuit F.2d 512 this plaee- expressly state that Baltimore’s actions adopted a framework for defamation among the worst the NFL. Mcker was (Sec to track-the Restatement that tends However, to the book’s discussion a footnote (1977) § (“Restatement”). ond) of Torts playoff game does of the 1958 Colts-Giants provides in defama The Restatement that Baltimore had the second-worst state “(a) actions, wheth tion the court determines year, goal percentage in the NFL that field bearing capable er a communication running back quarterback their while (b) particular meaning, and whether Interference, very turnover rates. had low defamatory.” meaning Restatement 1. Based on the fact that n. 614(1). jury § then determines whether information, argues that this reveals the communication was fact so understood reasonably jury conclude that 614(2). § recipient. Id. its falsely passage in Times review charac- his book. terized precedents apparent This circuit’s and the (5) really bad. For there is some hot Too ly decisions of other courts hold unanimous here, albeit warmed over. stuff “capable whether a statement is of con that this statement can be Moldea contends veying defamatory meaning” question is a being proven false because rather than the court to as a thresh of law for determine over,” significant See, White, 518; book contains e.g., “warmed old matter. 909 F.2d at Piro, 762, new revelations. v. 817 F.2d 779-80 Tavoulareas (en (D.C.Cir.) denied, banc), cert. 484 U.S. II. Disoussion 870, 200, (1987); 98 L.Ed.2d 151 grant Rodney review the District Court’s of We A. Defamation Law of Smolla See, summary judgment e.g., de novo. (1993) Nikoi § n. 4.08 132 (“Smolla”); Restate States, Attorney v. Gen. United 939 F.2d § ment (D.C.Cir.1991). 1065, As case was 1068 this “Defamatory falsity meaning and are dis- solely on basis the written decided tinct elements of the tort of defamation contents of and the Times re- White, separately.” are considered 909 F.2d view, presented pure question are "witha we Thus, defamatory meaning inqui- at 520. whether Moldea can in fact state a law: ry only on a focuses whether reasonable ultimately In claim for defamation. order reader could understand a statement as tend- matter, prevail appellant at trial in this has a ing injure plaintiffs reputation. “It is a appeal number of hurdles to clear. This say publica- when a court can that the presents only question the limited of whether reasonably capable any tion is not defama- proper it was to dismiss his claim at this tory meaning reasonably un- and cannot litigation. stage of the any defamatory that it can derstood sense law, District of a Under Columbia law, rule as a matter of it was not injure is “if it tends to statement Levy (quoting libelous.” Id. at 518 v. Ameri- trade, profession plaintiff communi (D.C. Co., 475, can Mutual Ins. 196 A.2d ty standing, him or lower in the estimation of 1964)); Jones, Liberty Lobby v. Dow see also See, community.” e.g., (also citing Levy). Afro-American 838 F.2d at 1294 649, Publishing Jaffe, v. 866 F.2d Co. (en (D.C.Cir.1966) banc); reasonably Clay Assuming a statement Vereen v. (D.C.1993). borne, 1190, defamatory meaning, capable A.2d 1195 n. 3 of a the trier of actually if it A defendant’s statements must also be shown fact must determine “was under White, preponderance recipient in that to be false of the evi stood sense.” 519; Tavoulareas, complete is a to defa 909 F.2d at 817 F.2d at dence—truth defense 133; See, 779-80; Liberty Lobby, § n. e.g., mation. Inc. v. Dow 4.08 Restatement Smolla

H43 agree § 614. The aforecited authorities statements of can be if actionable convey White, speaker imply provably the de- the intent false fact. See famatory meaning is not relevant at 909 F.2d at 522. inquiry, long recipient stage of the so as the Milkovich, high wrestling school reasonably of the communication could un- argued coach that an newspaper Ohio libeled such. derstand it as him in a implied column which that he had case, In the instant because the Dis perjured in a proceeding. himself state court not, trict ruled that Moldea could as a Court newspaper that, argued because the law, falsity, prove matter of it did not reach published merely expressed material question of whether the Times review opinion open of a writer and accusa capable defamatory meaning. of a We perjury, tion of the column could not be find, however, clearly capa that the review defamatory. Court, however, squarely meaning injure ble of would tend to recognize separate refused to constitutional profession, investigative Moldea his chosen Milkovich, privilege opinion. 497 U.S. at journalism indeed, alleges that the — 21, Rather, 110 S.Ct. at 2707. the Court in that, precisely review did and with devastat “opinion” Milkovich held that an exception ing allegation journalist effect. The that a unnecessary defamation actions was be “sloppy,” and author is or that his book’s existing cause First Amendment principles portrayals of central events are incorrect or protection speech. Spe ensured sufficient misleading undoubtedly satisfies the first ele cifically, the Court stated that its decision prove ment Moldea must to state a claim for Philadelphia Newspapers, Hepps, Inc. v. Thus, defamation.4 we must move on to U.S. S.Ct. 89 L.Ed.2d 783 challenged consider whether the (1986), plaintiff established when a verifiable, so, if are whether a reasonable damages against seeks a media defendant for

juror find them to be false. speech concern, public pre there is no sumption defamatory speech is false. A. Actionable Statements Under Milkovich words, “In other the Court fashioned ‘a con and White requirement plaintiff stitutional bear Supreme Prior to the Court’s decision showing falsity, the burden of as well as Co., in Milkovich v. Lorain Journal 497 U.S. ” fault, recovering damages.’ before Milko 1, 2695, (1990), 110 111 1 S.Ct. L.Ed.2d most vich, 16, (quot 497 U.S. at 110 at 2704 S.Ct. recognized dichotomy courts a strict in defa 776, ing Hepps, 475 U.S. at 106 at S.Ct. opinion mation actions between assertions of 1563). See, e.g., and assertions of fact. Ollman v. Evans, (D.C.Cir.1984) (en “loose, 750 F.2d 970 figurative, Milkovich also held that banc), denied, 1127, cert. hyperbolic” generally 471 U.S. 105 or S.Ct. statements are not 2662, (1985). 21, 110 86 L.Ed.2d 278 Under this actionable in defamation. 497 at U.S. practice, only However, special false statements of fact could at 2706. S.Ct. status of defamatory; “opinion” types expression be statements of could these of derives from the defamatory expres not be all protection provided parody because such constitutional for thought protected by sion was imaginative commentary by be the First and other deci White, recognized Amendment. Magazine, As we sions such as Inc. v. Hustler Fal however, wett, rejected practice 46, 876, Milkovich this 485 U.S. 108 S.Ct. 99 L.Ed.2d analysis (1988), recognizes favor of an 41 Cooperative and Greenbelt Pub- plainly distinguish- guished present 4. The record in this case is from those in the case on two Community able from a case such as Creative grounds: report The HUD did not make manifest Pierce, 663, Non-Violence v. 814 F.2d inadequacy prior the connection between the of (D.C.Cir.1987), sug- in which we stated that "a prior research and the CCNV’s role in that re- gestion inaccuracy utilizing inadequate of and of search, here, whereas Eskenazi’s review obvious- n case, defamatory.” research is not In that compe- ly professional is addressed to Moldea’s report HUD insinuated that homelessness statis- tence, and, CCNV, importantly, more unlike Mol- compiled by Community tics for Creative dea, reputation not on factu- does stake its entire ("CCNV”) Non-Violence were not drawn from accuracy. al systematic evidence. These facts can be distin- White, Bresler, light In of Milkovich and it is now lishing Inc. v. U.S. Association sort, (1970), 1537, clear a case the relevant 6, rather 26 L.Ed.2d 6 90 S.Ct. longer simply chal inquiry is no whether a protec- any separate than from constitutional lenged “opinion.” is “fact” or statement Milkovich, 20, at “opinion.” 497 U.S. tion for defamatory re Statements of fact of course 21, In addition to 110 S.Ct. at 2706-2707. (although main actionable truth remains a challenged examining specific statements actions). complete defense in defamation case, petitioner in that the Court liar,” The bald statement “Jones is a “general tenor” of Milkovich noted example, plainly fall would within the class suggest that it the article at issue did factual statements. See Milko hyperbolic figurative. was intended to be vich, 19, at at In 497 U.S. S.Ct. 2706. 21, at 2707. Id. at however, “opinion,” case assertions Thus, the Court in Milkovich concluded analysis required by is more Milkovich breathing space that “the which freedoms of complex. Supreme As in that Court held expression require in ade order survive is may “expressions ‘opinion’ often im case: by existing constitutional quately secured objective ply an Id. at assertion of fact.” of an doctrine without the creation artificial type at 2705. To illustrate this S.Ct. dichotomy ‘opinion’ and fact.” between Id. expression, Milkovich noted that: “If a (citation 19, 110 at 2706 and internal S.Ct. says, speaker my opinion ‘In John Jones is omitted). is so quotations This liar,’ implies knowledge he of facts which opinion relating to matters of statements of lead to the conclusion that Jones told an prov contain “a public concern which do not Thus, unsupported untruth.” Id. state ably will receive false factual connotation” opinion implies defamatory ment of facts protection. full constitutional Id. at 110 can be actionable. Milkovich further held White, 2706; 909 F.2d at speaker S.Ct. at see also that: “Even if the states the facts upon opinion, if which he bases his those incomplete,

facts are either incorrect or or if construing erroneous, the bounds of Milko of them assessment vich, may imply the court in made it clear that statement still a false assertion of White 18-19, fact.” if Id. at 110 S.Ct. at 2705-2706. per opinion” “even a se is actionable it can speaker is not Just as immunized from “reasonably implying prov understood as liability simply prefacing White, otherwise de able facts.” 909 F.2d at 522. The famatory my the words “In determination whether a statement should be ...,” defamatory assessments based prova implying characterized as factual or as speaker on incorrect “facts” stated are “defamatory separate facts is from the ble Thus, my actionable. the statement “In also meaning” inquiry. In White we first held opinion Jones is a liar because he cheats on that the statements at issue in that case were allegation if his taxes” could be libelous capable bearing implied defamatory mean cheating were untrue.5 ings, then went on to consider whether protected were the First Amendment as hand, gives other a a On the when writer imply non-verifiable statements which did not opinion upon that is statement based true White, provable facts. 909 F.2d at 522. See facts that are to or revealed readers which judgment challenged readers, as to whether a already opinions are known to such implies or generally statement asserts actionable facts long are not actionable so as the question such facts is a of law for the court to imply does not otherwise unstated defamatory a matter. determine as threshold See Smol facts. Because un- the reader supported opinions rep- derstands that such § ra 6.10. necessary alleg- damages 5. It is but not sufficient that an suffered actual as a result of the chal- case, edly imply provably lenged libelous statement statements. In the instant we do state Thus, example, plaintiff yet false facts. when a hold that Moldea has as made out his not claim, damages against may present seeks a media defendant for entire or even that he now concern, speech public prove jury, of a he or she must his case to a but that he has stated a prevail "fault” in order at trial. In that we at this to some cases claim cannot hold nonactionable plaintiff may prove stage proceedings. required a also be to that he of these

1145 interpretation journalism,” resent the writer’s sloppy the facts this statement would be presented, and because the reader is free to capable actionable it because of defamato- upon draw his or her own ry conclusions based meaning, reasonably and it can be under- facts, type those of statement is not provable, unstated, stood to rest on albeit actionable defamation. See Phantom In levying facts. charge Publications, Touring, Inc. v. “sloppy journalism,” inescapable it is Affiliated (1st Cir.) 724, (contrasting F.2d Milko- implies Eskenazi certain facts —that Moldea ground vich on the in that plays ease defen sources, fast and loose his with that his dant did not reveal allegations factual bases for his not Everyone are to be believed. opinions and so did not “invite[ ] readers to who charge reads the generally agree will on own-, conclusions”), their draw import. cert. de its —nied, -, 2942, U.S. It is true that “sloppy,” whether book is (1992); L.Ed.2d 567 Potomac Valve & Fit- and indeed whether slop there is “too much” Co., ting, Fitting Inc. v. 829 F.2d Crawford piness, review, as Eskenazi may stated his (4th Cir.1987) (challenged state- subjective involve an element of evaluation. “premises ment not actionable its However, epithet whether an represents a explicit, are and the no reader means “opinion” simply reviewer’s dispositive is not required conclusion”); to share [defendant’s] question before Aus. bare assertion Time, Inc., (9th Lewis v. 710 F.2d practitioner that Moldea is a jour of “sloppy Cir.1983) (no liability for defamation “where precisely nalism” would be analogous to the publication underly- sets [true facts] forth Supreme Court’s example Milkovich: “In ing dishonest”). its statement that someone is my opinion John Jones is a liar.” 497 atU.S. Thus, my opinion the statement “In Jones is 18, 110 S.Ct. at Although “sloppy” 2705. in a a liar because he cheats on his taxes” would may vacuum quantify, be difficult to the term not be actionable if recently Jones had in fact obvious, has aspects ap measurable when evasion, been convicted of tax long so as the plied to investigative journalism. the field of additional, statement did imply unstated (Similarly, an “clumsy accusation of hands” calling bases for might Jones a liar. While it may amorphous itself, be in and of but rea wholly be to attack unreasonable Jones’ ve- agree sonable impli listeners would as to its racity returns, on the basis of his tax applied cations when surgeon).6 brain reader would be free to make his or her own defamatory publicly Given it is dispar presented. assessment of the facts age person’s field, competence in his chosen simply cannot be the case that a writer Application B. the Law to the Facts of may person’s attack a impunity, work with this Case substantiating charges and without facts, “Sloppy merely by arguably imprecise using Journalism” terms. White, per As we held in “even a se

opinion” Further, is actionable it can “reasonably if important we think it to make provable understood as implying law, facts.” 909 clear under the case established Thus, F.2d at 522. if analysis the Times review had our of this case is not altered nothing said more challenged than “Moldea’s work is fact that appeared attempts 6. The dissent opposed "clumsy surgery.” to obscure the issue in brain In the in- by viewing "sloppy journal- case, this case Eskenazi’s stant Eskenazi Moldea not of accused fail- charge nothing ism” as more than an assertion ing amorphous, respect in some value-laden such " that Moldea has written a 'bad' book.” This is writing style; suggested as but rather that he ploy, a convenient it because allows the dissent failed, journalist, present as a to information that analyze dispute generality to at a level of was accurate and that had not been aired before. fact, inapposite to this case. Eskenazi’s as- not, What is at issue in this as the case dissent goes sessment of Moldea to the discrete and fact- says, general quality “a assessment of ... investigative journalist, bound efforts of an an author’s We book.” do not hold that it is clearly the assessment that Moldea’s concludes possible verify to whether Moldea's in work is journalist competent. a work as is less than "sloppy;” fact but that rather this characteriza- distinction, all, There is a after between accus- underlying tion rests on verifiable facts. science,” ing physician practicing a “bad as in a appeared “opinion in an column” in hard case rather than a in review” a “book section, sports a forum well escape newspaper to permit a defendant story. To news personal spirited expressions of merely known for liability libel part in the played in a review fact no published opinion, book but this remarks are Milkovich, an au- simplistic permitting analysis. as 497 U.S. be as Court’s See would by merely (noting herself that court below himself or at 2700 thor to insulate “I determining the words think that prefacing assertions with this fact in had relied on everything that followed calling it ...” nonactionable because article at issue was words, above, opinion. In other Milko- “opinion”). explained nonactionable As that to craft rule hyper- make little sense would which are vich held that statements permitted libelous bolic, satirical, otherwise as evalu- or otherwise marked they appeared in long as go unchecked so literally are to be taken ations not meant genres. In the instant certain sacrosanct they the crite- nonactionable when meet rep- case, injury professional to Moldea’s specifi- Supreme Court ria established anything greater because Esken- is if utation cally addressing portrayals. such appeared in a forum to which review azi’s “sloppy” nec- To assert that Interference of books. For turn for evaluations readers essarily implies that Eskenazi concluded author, review in The New York an a harsh shortcomings sloppy specific it is because of damaging Review is at least as Times Book in the In order for the he found book. incompetence against made as accusations as a matter of review to be nonactionable attorney surgeon legal in a or medical or a law, that it offered true the Times must show journal. judgment support in of its that served facts suggested in reviews as a It has been support opinion. its statement object judgment is avail genre, “the the critic’s audience.” Mr. Chow able to Passages Other in Verifiability of S.A., F.2d Azur New York v. Ste. Jour Times Review Cir.1985). (2d statement, This examples gives several The Times review suggests type of doctrinal ex which some jour- regarded “sloppy of what Eskenazi generally, implies that emption for reviews Interference, five of which Moldea nalism” are, opinion reviews the statements challenges in this suit. We hold that four of definition, premises. Ob based on revealed challenged passages characterize In- the five viously, this cannot be: readers use reviews ways jury meaning- terference at/eat/explore the to decide whether to look fully or false. Each of determine are true object underlying of the review. That the passages is offered as an illustrative these object in the review is not itself is identified supporting reviewer’s “fact” contexts, than in enough. More other jury If “sloppy.” work is were to Moldea’s may actually influence reviewer’s assessment they that Moldea had find that are false and behavior. claim, proved of his libel the other elements certainly suggest do not mean We reasonably hold that it could find then we do that all bad reviews are actionable. We Because we hold that Moldea was libeled. however, hold, that assertions would that of the four verifiable statements two in defamation are not otherwise be actionable law, cannot be deemed true as a matter of transmogrified into nonactionable statements jury, we but rather must be evaluated a book appear the context of when proceedings.7 for further remand this case support strong review. This conclusion finds First, as we find that the review’s Supreme decision Milko Court’s portrays meeting be- in that sertion that Moldea held actionable vich. The statements provable journal- implying can be action- "sloppy unstated facts we hold that the 7. Given that Thus, White, simply able. See 909 F.2d at 522. if the Times ism" attack would be libelous facts, sup- argument supporting that all of the statements if Times’ made that assertion without "slop- simply porting that further its conclusion the of the review offers remainder Interference subjective py” evaluations are nonverifiable opinions, be actionable in libel. then it still would White, nothing appellee's unsupported opinion case. lends to As we noted

H47 fault, depending tween Joe Namath and Lou Michaels as sin- on whether he were found to verifiable, public ister” is and that a reasonable figure. be a juror could conclude that it is false: holding Given our that the review’s charac- Mr. Moldea tells as well Mr. Namath’s verifiable, terization of Moldea’s discussion is ‘guaranteeing’ victory Super III Bowl must we next consider whether a reasonable shortly meeting a sinister in a bar after juror Although could find it false. we ex- opposition, with a member the Lou Mi- press no as to the truth of the re- chaels, place-kicker. the Baltimore Colts’ view’s assertion that Moldea indicates that pair truth The is that the almost came to meeting the Namath-Michaels was “sinis- they drinking; blows both had been after ter,” cannot hold as a we matter of law that it well-publicized Mr. ‘guar- Namath’s page Interference, is true. On 197 of Moldea quite innocently antee’ came about at a states that Michaels him told that his meet- Miami Touchdown Club dinner when a ing “quite with Namath was accidental and thought asked him he Jets had fan if confrontational.” page even On the same ’it, guarantee chance. Well win. I Mr. quotes saying Moldea Michaels as “What we replied. Namath talked relationship about had no to the passage attempts In this Eskenazi support to game,” quotes player present another at suggestion incompetent his that Moldea anis meeting confirming ‘“nothing that journalist by describing one of the book’s game technical’ about the was discussed.” ie., alleged by using a fact to sub- suggestion errors — overt in the book that opinion. argues stantiate his that his meeting could even be construed as “sin- plainly book reveals that the Namath-Mi- “[tjhose ister” is Moldea’s statement meeting chaels was im- innocent.8 The clear who still something insist about plication passage of the review is that Mol- game suspicious call attention” it. dea, through incompetence either an in- or Interference, at reading 197. Based on our mislead, suggests meeting tent Interference, we cannot hold that essentially was “sinister.” This is an factual Times review’s characterization of the book’s claim—either so describes the depiction of meeting the Namath-Michaels meeting or it does not. reasonably could not be found to be false. during argument, In his brief and oral Second, although ques it is a closer appellee’s attempted counsel to demonstrate tion, we also hold that the review’s assertion disputed passages in Moldea’s book that Moldea “revives the discredited notion” do in meeting. describe a “sinister” fact that Carroll Rosenbloom was murdered could However, arguing that the characterizations be found to be false when read the context offered the review are correct is not the book as whole: contending same as are nonverifia- revives the discredited [Moldea] notion indeed, precisely opposite. it is ble— Rosenbloom, ornery that Carroll owner arguments presented by parties both as to Rams, penchant who had a falsity truth statement’s make it clear gambling, play met when he drowned foul that one can adduce evidence on the issue years ago. in Florida 10 jury meaningfully and that a decide it. Any might concerns we drowning otherwise have that Moldea discusses Rosenbloom’s penalized simply pages through Interference, the Times could be 326 of clos- interpretation its reviewer’s ing quoted differs from that his account with observations jury allayed by of a are fact that order from several of Rosenbloom’s friends who However, to win at trial required speculate Moldea would be that he was murdered. prove only falsity, book, page not but also malice or later in on Moldea states agrees 8. The dissent observes that “the statements that statements is that he with what Eskenazi support the review offers to its conclusion that offers as "the truth” about the Namath-Michaels meeting Mr. Moldea mischaracterized the as sin- meeting it was not a "sinister" encounter. —that ister, verifiable, which are themselves are not portray Moldea contends that he did not so challenged by Mr. Moldea." Dissent 1156-57. meeting, not that it was in fact "sinister.” challenge The reason Moldea does these is false because pho- over” material previously unknown located that he has Interference revelations. We con- autopsy important makes new at Rosenbloom’s tographs taken passage is over” inspection to “several clude that the “warmed presented for which he verifiable; however, communi- the text of Mends within the law-enforcement Interference short, that “In characterization is plain makes that this ty.” Moldea then concludes itself substantially presence that Rosen- of some appears to be clear true. The the evidence and was not tragic in a accident in would not ne- bloom died material new Interference por- that gate implication murdered.” some the review’s old news. The Times tion of the book is does in that It could be said Interference all suggest not that review does was murdered suggest fact that Rosenbloom Interfer- over,” merely that but ence is “warmed suspi- mentions his Mends’ the book revelations, though “some” of the book’s time, play. foul At the same there cions of “hot,” in they initially have fact been seem ultimately that Moldea can be no doubt journalistic by previous efforts. revealed conclusively disproved this claims that he has of law theory. cannot hold as a matter We with mathemati- we cannot establish While juror could not find that a reasonable that much of precision cal how Interference in fact mischaracterize the Times review did prove required to Times would be incident. portrayal of this verify this charac- over” in order to Interference’s “warmed requires this circuit The law of terization, reveals that at least Moldea’s book whole, in as a the sense review “be taken sug- specifically portrayals the review read- it be understood in which would present- have in fact been gests are rehashed ers to whom was addressed.” before, enough Afro-Amer- this is and we hold that ed jury Publishing, at 655. A 366 F.2d ican liability Times to avoid for this state- could, generally taking into consideration the that Moldea offered ment. Eskenazi wrote whole, as a find negative tone of the review another of the 1958 Colts- “still recitation” implication the “revives that the intended playoff. Moldea’s discussion of Giants passage was not sim- the discredited notion” published in 1974 game quotes from a book discusses a “discredited no- ply that Moldea suggests Insiders” sus- which that “Football tion,” not reveal what but that Moldea does pect that went for a touchdown the Colts implies well known truth Eskenazi is the very point spread, to beat the issue order in this Rosenbloom’s death. Read about See at addresses. Interference Interference fashion, implies that Mol- the Times review addition, dismisses 90 n. 1. Eskenazi journalist who poor is a indeed —one dea might Rosenbloom suspicions that Carroll that he should accepts versions of events notions,” murdered as “discredited have been or, already disproved; worse know have been previously implying that source has some still, intentionally no- purveys “discredited theory. Moldea in fact discredited that suggest scandal where tions” an effort to length about a 1988 television writes some there is none. special suggested which that Rosenbloom murdered,” id. at “might have been see Third, assertion the Times review’s goes commentaries on this then on discuss is “warmed that material published Chicago special which were is also a verifiable statement offered over” Tribune, Illustrated, Variety, Sports and the support overall verdict that of the review’s By at 360-361. New York Times. See id. journalist: “sloppy” Moldea is a admission, then, own his account Moldea’s really some hot Too bad. For there is surrounding controversy Rosenbloom’s here, warmed over. albeit stuff journalistic drowning cannot be deemed import passage of this is clear: Eskenazi above, “scoop,” although, as noted has, implies points at some in his that Moldea new informa- does contend he unearthed book, has aired rehashed material that been finally laying rumors to rest. tion these practice before other sources. Such Fourth, would, course, the review’s statement badly on an investi- reflect “in his text” journalist. that the Moldea does reveal gative Moldea contends had one of the worst kickers “warmed Baltimore Colts accusation that his book contains

H49 claim, es, league in the is a factual but because it never wrote ‘an inside information defamatory: is, essence, is trae it cannot be sheet.’ He in the writer the for world racing. horse [Moldea] also still another recita- offers playoff game the 1958 tion between the passage The a competing description offers Colts, then owned Baltimore Rosen- Morning of The Telegraph adequately which bloom, and the New York Giants. The explains the basis for opinion the reviewer’s field-goal attempt Colts disdained a in “sloppy” that Moldea is having for character- overtime, choosing go instead to for publication ized that as an “inside informa- they got goal touchdown close to the after tion Although sheet.” expressed the implication Mr. line. Moldea’s is that passage might defamatory have a im- wanted to win more than three plication in the context of this article —that points point spread. to beat the incompetent journalist Moldea is an is—it ‘again Colts The to send in kick- refused not permits actionable because it the reader Myhra game’ er to end the awith field upon evaluate facts which it is based. goal, complains. [Moldea] [Moldea] What argues Moldea passage is false be- doesn’t state in his text is that Steve cause does reveal that Hirsch Interference among Myhra place-kickers was the worst Morning wrote for Telegraph The and that league, having in the missed three extra erroneously the review suggests that he did points field-goal and more than his half not agree do so. While we that the review attempts during the season. does not clear that make Moldea notes the juror disagree No reasonable with the publication wrote, exact for which Hirsch assertion. It above is true that Moldea gist real challenged passage is that quotes the Baltimore coach the text of inaccurately Moldea Morning describes The saying as “We did have a not Telegraph, that he not fails to name it. Interference great placekicker” denying that he had C. The Incremental Harm Rule attempted point spread by going to beat the touchdown, 90, for a but Mol- Some of the factual evidence with Interference dea not state in his does text that Steve supports which the review Times its asser Myhra among place-Mekers was the worst “sloppy” tion that plainly is is Interference Rather, league. only it a footnote to above, true. As noted Eskenazi is correct game his discussion of the Colts-Giants that Moldea did not “in reveal his text” that states that Baltimore had the second- Myrha among Colts kicker Steve goal percentage worst field in the NFL. See addition, worst the NFL in 1958. In at 444 n. Moldea does contest not the review’s asser tion that book contains “several errors in Finally, the review’s criticism of In spelling.” therefore must consider We description ’s Morning The terference potential whether the can avoid Times liabili Telegraph as an “inside sheet” is information ty ground on the that some of its factual not merely verifiable because it offers Esken claims are true. publication azi’s of that evaluation in contrast Moldea’s, and reveals the bases for factual squarely rejected This circuit argu- has disagreement: its ment that a false statement made obsessed, example, Mr. Moldea is among other ones cannot true actionable says with Joe Namath. [Moldea] “incremental harm” does rookie, the New York Jets’ quarterback plaintiffs reputation. Liberty Lobby, Inc. Hirsch, roomed with ‘Joe wrote a who Anderson, (D.C.Cir. 1563, v. 746 F.2d betting line and an inside 1984), grounds, on other vacated U.S. information professional sports.’ sheet on (1986), 91 L.Ed.2d 202 Heady except then-judge if Scalia held that even some of revelations —

courtly happened Mr. Hirsch qualities correctly to be the that were attributed to racing reporter plaintiffs columnist and derogatory “are fact much more chief (now Morning Telegraph Racing challenge, than the under the lat- Form). He picked still is. He never hors- ter cannot be to be harmless. Even said of his work are criticisms reputation, of the review’s remaining good public outcast’s be, may valid, minor inaccuracies.9 though it it is marred scope limited in inconsequential.” as a matter of law a trial court can find When substantially challenged publication is that a in Masson v. Supreme held Court true, may properly grant judgment — it then U.S. -, Inc., Magazine New Yorker However, in of this a case for the defendant. 2432, -, 2419, L.Ed.2d 447 115 falsity multiple sort, truth or of in which the (1991), does First Amendment questions of fact presented are defamatory statements liability preclude jury’s province to plaintiffs jury, it the harm to a the is incremental that cause free to though publication the states suffi- reputation, left determine whether if harm doctrine adopt the incremental plain- ciently so as to have defamed false remand from Su Inc., to do so. On choose Haynes Knopf, A 8 v. tiff. See Alfred Masson, the Ninth preme decision Cir.1993) Court’s (7th (“Ordinarily F.3d 1228 think that Cali that it did not noted Circuit is work question whether harm adopt the incremental would fornia substantially although erroneous true rule, decision in Lib quoted this court’s jury.”). is for the some details support Lobby its obser erty v. Anderson simply a seemed vation that the doctrine Light Priva- False Invasion D. Moldea’s of Maga v. New Yorker “bad idea.” Masson cy Claim (9th Cir.1992). Inc., F.2d 898-99 zine 960 vein, long ago this court held In a similar Finally, agree with Moldea’s contention we necessarily even “[p]artial truths are not applied court an incorrect the- lower law, for mitigating in of the this branch light invasion dismissing his false standard may when he be the more successful defamer District Court stated privacy of claim. The truth.” baits the hook with Afro-American claim, plaintiff to recover for such Publishing, 366 F.2d at 655. Afro-American private publication show “must informa ver- Publishing upheld a lower court’s libel places light.” him in a false Mol tion which despite presence of true statements dict dea, F.Supp. (citing Dresbach v. in that case. This in the article at issue (D.D.C. Co., Doubleday F.Supp. & in the held that the false statements court added). 1981)) (emphasis Based on this erro in the challenged publication “were critical law, of the the District neous statement article,” impact and that total light Moldea’s false claim on Court dismissed be read as a whole and article at issue must publication over grounds that “the be viewed in the manner it would 28,000 private not a copies of is Interference average Id. reader. event.” Id. at 338. is, however, gen truth” “Substantial erally regarded as a defense to defamation. of the District of Columbia The law Jones, See, e.g., Liberty Lobby v. Dow light privacy is concerning false invasion (“Slight expres F.2d at 1296 inaccuracies (Seoond) based on the Restatement provided that the defam are immaterial sion of that cause of action. See Torts’ definition substance.”) (citing atory charge true in is Garfinckel’s, 492 A.2d 580 v. Vassiliades f); § cmt. 581A Smolla Restatement White, (D.C.1985); 909 F.2d at 522. see also case, Times § 5.09. In the instant can § 652E defines the tort as fol Restatement that the review is not establish on remand lows: merely by proving that some nonactionable falsely gives publicity to a matter One who support its claims it makes to of the factual places the other concerning another “sloppy” are assertion liability subject to to the light false Conversely, must do more true. privacy, if invasion of his although the other for simply establish that bulk than proving malice or fault. See generally publi- more difficult time the case that when a It is also minor errors of is found to contain cation § 5.09[2]. Smolla fact, plaintiff will have a much a defamation

H51 (a) light false which the other was the case is remanded for proceedings further placed highly would be offensive to a consistent opinion. with this person, reasonable It is so ordered.

(b) knowledge the actor had of or acted disregard falsity reckless as to the APPENDIX publicized light matter and the false From Review, The New York Times Book in which placed. the other would be September 3, 1989, page 8:

Comment “a” § to Restatement 652E ex- Unsportsmanlike Conduct? plains that, privacy torts, unlike the other by Gerald Eskenazi light claim depend false does not on the publication private (Gerald facts: Eskenazi, sportswriter for the New Times, York currently working with Carl

The form privacy invasion covered on autobiography) Yastrzemski his the rule stated in this Section not does depend public First, on making any con- got facts I’ve tangled admit a financial cerning private life of the individual. connection to the National League. Football contrary, My On is essential to the rule wife’s first cousin psychiatrist married in stated this Section that pub- the matter whose father sold his plumbing business to a concerning lished plaintiff company is not true. eventually became Warner Communications. And the owners of several great There is a overlap deal of be football piece teams have a of Warner. tween causes of action for defamation Is that clear? light. false and The Restatement notes that light false tort addresses in situations you Now understand crazy- the kind of plaintiff which a appear is made to to be quilt tie-ins Dan E. Moldea makes “Inter- is,” “otherwise than he when such a false ference” explain how organized crime and highly characterization would also be offen cozy. the N.F.L. are to a person. sive reasonable Restatement course, Of Moldea, Mr. previous whose § Publicity cmt. b. 652E that is actionable Victory: books include “Dark Ronald Rea- light generally a false claim will be action Mob,” gan, MCA and the has a built-in safe- able in defamation well. A plaintiff may as guard if questioned he is about tactics or only recover on one of the two theories based claims, sources or league, conclusions: the he on single publication, plead but is free to defense, will loyal “send its front line of note, them the alternative. See id. We sportswriters, to attack messenger.” In however, plaintiff may that a not avoid the words, other he has shielded himself ad- proof strictures of the burdens of associated by people vance criticism from like me. resorting defamation to a claim really Too bad. For there is some hot light false invasion. See Cohen v. Cowles here, stuff in albeit over. His exam- — warmed Co., -, -, Media U.S. 111 S.Ct. Super ination ticket-selling of the 1980 Bowl 2513, 2519, (1991); 115 L.Ed.2d 586 Hustler Frontiere, involving Georgia scandal the mul- Magazine, Falwell, 46, 56, Inc. v. 485 U.S. Rams, timillionaire Angeles owner of the Los 876, 882, (1988). L.Ed.2d husband, Dominic, and her pris- who went to The District Court erred requiring Mol- evasion, on for greed tax shows that has no to show that publicized dea the Times had truly bottom line. And disturbing he raises private concerning facts him. We therefore questions about connections between some light remand Moldea’s false claim for further may owners and friends who be mob-con- proceedings. nected, newspapers well as about

television regularly pander shows that people sports who bet on But events. there III. CONCLUSION sloppy journalism is too much to trust above, For the reasons judg- discussed bulk of this pages including book’s 512 its — ment of the District Court and whopping pages reversed of notes. in kicker “again refused to send

The Colts goal, he game” with a field Myhra to end the obsessed, example, with Mr. Moldea is he doesn’t state his text complains. What rookie, says as a He Joe Namath. among Myhra was the worst is that Steve quarterback roomed with New York Jets’ league, having missed place-kickers in the Hirsch, betting line and who wrote “Joe more than half his points extra three professional sheet on inside information field-goal attempts during the season. sports.” connec- may well be some insidious There courtly Heady except that the revelations — guys and the N.F.L. the wise tion between racing happened to be the colum- Mr. Hirsch “Interference,” may again, there not. Then Morning reporter Tele- and chief nist insinuations, and unfounded with its errors Form). (now Racing He still is. graph raises the issue. Mr. Moldea does settle horses, “an picked never wrote He never questions, blunted his own sword but has essence, is, in information sheet.” He inside of truth. racing. of horse the writer for the world MIKVA, Judge, dissenting: Chief of Mr. Namath’s Mr. Moldea tells as well victory Super III “guaranteeing” a Bowl I. IntROduction shortly meeting in a bar with after a sinister Supreme Court found the di- When the Michaels, opposition, a member of the Lou chotomy opinion “artificial” between fact and place-kicker. The truth the Baltimore Colts’ Journal, 1, in Milkovich v. Lorain U.S. pair after is that the almost came to blows 2695, 2705, 111 L.Ed.2d S.Ct. they drinking; and Mr. Na- both had been (1990), cloudy out a area of First it aired “guarantee” well-publicized math’s came way that Amendment law a has been quite innocently at a Miami Touch- about relatively easy helpful for other courts to and him if dinner when a fan asked he down Club manage. I am concerned that the extra di- thought win. the Jets had a chance. “We’ll placed by today’s deci- mension on Milkovich it,” guarantee replied. I Mr. Namath surgery causes some troublesome on the sion fan, yet claims to a football Mr. Moldea impact its artistic First Amendment and on ignorance apparent, nalveté is as is his his expression. Analogizing a book review that sports knowledge, several errors basic while complains that the author of the book under diligence spelling question call into at jour- engaged sloppy in “too much review has simple fact-checking. misspells the name He charge surgeon nalism” to a that a brain has (Howard Trophy of a Heisman winner Cassa- hands”, “clumsy Maj.Op. equate is to dy), top thoroughbred trainer in the malpractice. piano a recital with medical (D. Lukas) Wayne and the United States al- The First Amendment literature has (Steve president of York the New Jets Gut- ways recognized sharp between distinction man). intended to inform and those communications seeking appeal that to the artistic senses. Mu- He revives the discredited notion Car- criticism, one, Rosenbloom, epithets ornery is rife with roll owner sical Rams, by composers, penchant gambling, denigrating met efforts various who had violinists, saxophone players. play singers, foul in Florida 10 and when he drowned years are conceived to involve the ago. He also offers still another reci- None them playoff game tation of the between the stuff of defamation. Even late President Rosenbloom, Colts, by challenged the criticism of his Baltimore then owned Truman daughter’s singing zingers of his dis- some and the New York Giants. Colts overtime, own, by field-goal attempt claims of defamation. Paint- dained a but architects, ers, designers, play- go sculptors, choosing instead to for a touchdown after makers, fiction they got goal wrights, poets, Mr. movie and close to the line. Moldea’s sharp had com- implication they that wanted to win writers —all of them have say their work. To points point more than three to beat ments made about spread. every those comments is actionable as one of

H53 Accordingly, guides “[b]oth defamation because could be shown to as to the ‘fact v. unstated, upon provable, Milkovich, albeit defama- “rest non-fact’ distinction created facts,” tory open up is to the entire arena pro- the future evolution of state law to. tection, artistic criticism to mass defamation suits. body jurisprudence rich devel- If Mr. the statement Moldea wrote a oped during courts lower the last two defamatory, sloppy book is so would be a decades under ‘opinion’ the rubric of the sloppy statement that Bette Midler wore doctrine remains alive and well.” Smolla, dress, sloppy Oliver Stone made supra § 6.03[7][d]. film, sloppy or that Itzak Perlman had a safeguards The historical afforded reviews technique, played or that Lincoln Steffens stem from the fact that the realms of analyses with his fast and loose of reform artistic, literary, endeavors, culinary politicians. many peo- I have no doubt that ready yardsticks there are few with which to reading derogatory ple such criticism of their Moreover, opinions measure the of critics. might strong feelings favorite artists have approach literary readers and artistic criti grave about the criticism. I have doubt that expectation opinions cism with the defamation suits should be used as the arbi- they express objective are not meant as literary ter of such and artistic tastes. Rather, implications statements or of fact. Admittedly, reviewing quite book is not “[cjertain editorials, reviews, politi formats — “clearly subjective” as other forms of artistic cartoons, signal cal letters to the editor — criticism. There are statements about a anticipate departure reader to from what is capable being proven book are more actually known the author as fact.” Mil Chagall false than similar a statements about kovich, (Bren 32, 110 supra, at S.Ct. at 2712

window, play. or a But I do even Shaw not nan, J., dissenting). public The nature of the know how courts could ever check the slide work review under allows readers to arrive slope majority opinion down the the opinions. at their own today. “sloppiness” creates The standard of protection The current constitutional of verifiable, is this context not no matter opinion nonverifiable of can be examples reject what are used to sustain or privilege traced to the common law of fair charge. the comment. Due to a concern that defamation discourse, public suits would stifle valuable II. Disoussion recognized the common law as an affirmative “ A. Historical Protection Artistic and of defense to a defamation action ‘the honest Literary Criticism. expression opinion legiti- of on matters of Potentially defamatory opin- public upon statements of mate interest when based a true ” Milkovich, appearing long privileged ion reviews have been af- or statement of fact.’ 13, 2702, significant protection supra, forded quoting from defamation 110 S.Ct. at 1 F. liability, James, privilege Harper § first the common law of & F. Law of Torts 5.28 (1956). and, recently, by fair comment general, privileged more First In was comment Rodney See, e.g., public Amendment doctrine. A. when it “concerned a matter of con- (1993) cern, facts, Smolla, § upon privileged rep- 6.12[7] was true or Law of Defamation (“As authors, general journalists, principle, opinion speaker, resented the actual of the solely and artists of purpose invite criticism their work and was' not made for the of product, 10-11, position causing and ... the mainstream is harm.” Id. at 110 S.Ct. at clearly 2702, opinion citing § to construe such criticism as Restatement Torts of comment.”). Milkovich, (1938). Underlying privilege or fair while declin- the was de- “intuitive, ing privilege protect to carve out a distinct for all sire evaluative state- “opinion,” proved statements that could be labeled ments that could not be either true significantly pro- rigorous reasoning did not alter these earlier false the deductive did, simply, judicial process.” tections. What Milkovich was the Mark A. Franklin & Bussel, inquiry away shift the from whether a state- Daniel J. Burden in Plaintiffs “opinion” Falsity, ment could be said to be and to- Awareness and 25 Wm. Defamation: Maey (1984). 825, wards whether the statement is verifiable. & L.Rev. opinion announced Gertz. fit tween fact and of art and literature reviews Critical Evans, supra, court at v. privilege, and Ollman comment neatly the fair within degree guidance provide some tempted to successfully employed have critics numerous distinguish by setting a flexible test out Generally, actions. defamation it defend account opinion that took into ing fact from on true that are are based facts such reviews factors, including mean the readily several common review itself or in the either stated used, degree to which ing language the of the the reference to to the reader available verifiable, malice, context the statement work, reflect without are offered occurred, and the broad which statement opinion of the and nonverifiable the honest fits. Post, in which the statement er social Washington context v. In Fisher reviewer. Oilman’s, implicitly rejected “total instance, (D.C.1965), Milkovich privi- A.2d 385 test in ity of the circumstances” favor gallery lege applied to a review of alleged de single inquiry into whether being the art “so exposition that criticized as The fac famatory is verifiable. paintings that statement badly hung among commercial meaning, tors set forth Ollman —common completely they might have is quality what relevant, only to the but context —remain And in v. destroyed.” Id. at 336. Sullivan verifiability (D.C.Cir.1944), bear on extent Meyer, this court 141 F.2d journal- statement. fair comment for a ruled it was plaintiff as the “author ist to characterize simplified thus Court Milkovich defeatist, anti-Jewish book.” of a identifying protected opinion by sin- task upon gling verifiability as the sole out factor Supreme deci- Beginning with Court’s focus. But as with fact which courts should Sullivan, Times v. 376 U.S. sion in York New opinion, separating line verifiable (1964), 11 L.Ed.2d always statements is from non-verifiable began to privilege fair comment nature noted, As one commentator has self-evident. By stating that the Constitution change. “[vjerifiability property is not a that either requires a defense of fair comment “that Rather, or does not obtain. does expressions must afforded for honest be varying property may present privileged, upon as well based Schauer, Language, degrees.” Frederick F. 30, fact,” true, n. 84 of Id. 292 statements Truth, Essay Amendment: the First An and 30, the for first time at 732 n. Court the S.Ct. Canter, Harry Memory in 64 Va.L.Rev. protecting a constitutional basis for of hinted at (1978). 263, 279 opinion. The Court reaffirmed statements of dichotomy “fact-opinion” in v. Rob- this Gertz Sloppy B. “Too Journalism.” Much Inc., 323, 2997, Welch, ert 418 U.S. (1974), in 41 where stated L.Ed.2d before us confirms primary statement by dicta that point. sloppy” might “Too be the taken specific that the book is full of some to [ujnder mean no First Amendment there is the inaccuracies, charge plaintiff factual the perni- thing a false idea. such as However disprove by providing clear for support seem, may depend for cious an we Others, in the found the book. statements of not on the conscience its correction however, sim- might interpret the statement competition judges juries but on the of and imply a “bad” ply to that the author wrote But there is no other ideas. constitutional book, clearly subjective non-provable in false statements of value fact. view, sloppy my In “too much assessment. 339, thus at 3006. Gertz Id. at S.Ct. journalism” in a lies contained book review the dis principle “elevated to constitutional poles, two but far somewhere between those opinion, had fact and which tinction between too close to the nonverifiable end of fair comment.” formed the basis of the doctrine liability. spectrum defamation to warrant Evans, v. F.2d 970 Oll man banc) (D.C.Cir.) (en denied, Applied profession or contained 471 U.S. to another cert. (1985). context, charge sloppiness of another S.Ct. 86 L.Ed.2d Milkovich, A that a struggled might indeed actionable. claim to lower courts to Prior operation, for “sloppy” illusory distinction be- doctor botched apply somewhat the

H55 instance, susceptible would to verification plaintiff, prevail .be defendants should in eases patient’s recovery, reference to the the like this where the verifiability of the state- doctor, overall record of the or some other ments at issue is doubtful. See su- Smolla, objective 6.07[2], measurement. product Or if a § pra, Accordingly, phrase the “too were said to be “sloppy” manufactured in a sloppy journalism” much used in a book re- (or perhaps aptly, manner, more “shoddy”) view to describe one’s writing style or re- producer might the prove be able to other- subjective search methods is simply too to be by demonstrating, wise example, verified and protected therefore should be product accepted conforms industry speci- to under Milkovich. acceptably fications or has an low defect rate. This supported, think, conclusion is I However, only by imprecision vintage the the inherent of fair comment eases dis phrase sloppy” above, “too coupled when cussed but also its recent First use to firmly pushes precedent. describe book Amendment In White v. Frater Police, (D.C.Cir. statement at protective issue under the nal Order um- 909 F.2d 512 of 1990), First, brella of opinion. non-verifiable implication understanding common police officer “sloppy” positive the word had illegal tested piece drugs as used to writing engaged describe a bribery is one was actionable challenges objective clearly charge verification. The because proven could be dictionary itself, defines true or “sloppy” this context false. impli Milkovich “carelessly put together performed; cation that wrestling lack- coach committed ing sound perjury similarly construction.” subject New Webster En- to verification. cyclopedic Dictionary English eases, Lan- involved those (7th 1971) guage added). though ed. (emphasis opinion, cloaked as have a factual denoting concepts Words perjured such as basis. Either the coach careless- himself or soundness, though ness and he didn’t. possi- sometimes Either Detective White tested objectify, typically positive ble are or not. judg- evaluative There is little room for interpretation. ments that person will differ person. My from understanding of the What sloppiness? constitutes sloppy principle How Milkovich types is that these sloppy? too spelling Should factual assertions escape errors suffice or should not defama grievous lapses liability are more simply tion pref research neces- are sary? In eyes? whose my aced the words “in opinion.” Because of the sub- jective term, nature of recipient of a cases, That present concern is not like charge sloppiness usually will be hard- one, subjective that involve evaluations pressed disprove that insufficient care was plaintiffs performance, particularly given to the work. .. they appear when in a review. In Cole v. Westinghouse Co., Inc., Second, Broadcasting the 386 overall tenor of the review (1982), Mass. suggests 435 N.E.2d 1021 that for in the reviewer was not as much stance, Supreme the Judicial specific concerned with Court of Massa misstatements of ob- chusetts held jective and nonactionable statements re verifiable facts as he was with markably similar to what those at issue In he saw here. as Mr. Moldea’s fundamental ease, a terminated prove reporter television failure to the of the thesis book—his failure, brought against a defamation action produce to his for “smoking gun” linking employer issuing mer organized the statement bottom, NFL crime. At the firing the newscaster’s was a expresses review result of his uniquely subjective evalu- “sloppy irresponsible and reporting.” Hold quality ation of the of While Interference. ing that the statement could not form the. might another reader disagree that Mr. Mol- action, of ball, basis a defamation the court dea fumbled the it is difficult to see how subjective its stressed nature: prove one the reviewer’s assessment wrong as it is largely particular based on his ... [T]he made [the statements de- Furthermore, tastes and standards. only can expressions fendant] be viewed as proving the burden of allegedly that an opinion de- regarding of reporting Cole’s abili- famatory statement is false lies with reporter the ties. sloppy Whether a is proved true that can be or connotes facts techniques is a mat- bad irresponsible of a coach’s general A meaning these false. assessment The opinion. ter of of an author’s book— specu- ability quality the of open to imprecise and statements —or as characterized does not. They cannot be lation. They proved cannot assertions of fact. creation of a whole- I advocate the do not false. privilege ap- for statements sale defamation added). (emphasis at Id. 435 N.E.2d My literary artistic criticism. pearing in Times, Inc., correct, course, it Gambling colleagues are

In v. Stuart permit- (D.N.J.1982), a book review unwise “to craft a rule F.Supp. would be go charged that its un- statements plaintiffs gaming manual ted otherwise libelous the they appeared # 1 fraud ever in certain long “the so as publication and sale was checked Maj.Op. 1146. The gambling public.” genres.” at upon the sacrosanct perpetrated unwise, however, equally ig- of a book majority context held that the court reasonably review, altogether could not the effect of the communica- statement nore the (“... accusing au- actually upon the audience. See Id. as tive vehicle be understood fact), rather, (a but altered analysis of this is not thor of fraud verifiable our case appeared reviewer. Id. challenged statements simply the fact was ”). above, explained review.’ As at 172. a ‘book history contrary long to a this view runs Azur, Likewise, v. Jour in Mr. Ste. Chow recognizes jurisprudence which defamation (2d Cir.1985), a defamation F.2d 219 offered, generally and rea- that reviews are review of the involving an unfavorable action subjective, received, sonably statements of as by a Chinese restau- service food and offered fact. opinion rather than Re- non-verifiable six rant, ruled that five of the Second Circuit liability escape should defamation viewers pro- were challenged in the review assertions smuggle they attempt to unless opin- tected as non-verifiable the author verifiable facts about under only in the review that statement ion. The not the guise of Such is case criticism. as concerned the court viewed verifiable here. in which the restaurant number of dishes Peking Id. at 226-27. As its served Duck. Secondary Statements. C. statements, noted that the court to the other challenged passages As for the other approaches a review with average reader “an majority Moldea, two that cause Mr. per- one knowledge that contains views_” regarding the result, concern those the most are Id. 227-28. As son’s meeting between Joe Na- alleged “sinister” “incapable of found the statements the court “revival” Lou and the math and Michaels at 229. being proved false.” Id. play involved allegations that foul might analog to case be the Another Rosenbloom. of Rams’ owner Carroll death morning quarterback” “Monday traditional view, my The “sinister” statement newspa- sports column section implication that Mr. the review’s calls for the head per. If the local columnist meeting incompetent play-call- painted Namath-Michaels resignation for coach’s opinion. protected, is non-verifiable reasonably understand “sinister” ing, should the reader dictionary as it is used opinion The “sinister” personal defines the column to reflect the ill-fortune or ninety-nine “presaging context as trou- out sportswriter. Whether the Collegiate New disagree Ninth Dic- agree or with ble.” Webster’s of a hundred readers (1984). here is not wheth- opinion tionary is The issue the assessment is immaterial. “presaged trouble”— clearly meeting repre- it so er fact non-verifiable because fixing Superbowl III —but whether subjective interpretation of one sents the given fairly to have Moldea be said if the Mr. can person. The case be different would impression. The reviewer ex- readers that expressed opinion, without stat- columnist an drunk, This conclu- basis, pressed opinion he did. paid that ing that the coach was its sion, readily available to referees, up the basis of which to show off the or failed such, all, As and his alone. opinions is the reviewer’s of these practice all week. Each false, proven just opinion cannot be as an Mr. Moldea by contends saying person disposition that a has a “sinister” or he “revived” the allegations, Rosenbloom expression implies “sinister” facial cannot be review proven that Mr. actually sub- them, scribes to false. Had the review stated that when fact Mr. Mol- he acknowl- edges in the book allegations dea meeting by using mischaracterized the have been discredited. But sinister, even if the word we to allegation then such an were take “revive” to mean dignify “to or credit” proven could be my false. But while col- (or if the review words), used exact those I leagues are correct that the “sinister” char- am still not convinced that the statement debate, open acterization is to debatable does would because, be actionable like the “sinis- Moreover, not mean verifiable. the state- characterization, ter” it is prov- based not on ments that the support review offers to its able but on facts an interpreta- non-verifiable conclusion that Mr. Moldea mischaracterized tion of one may reviewer. disagree We meeting sinister, which are themselves interpretation upon reading book, verifiable, are not challenged by Mr. Moldea. but prove we cannot it false. 2. The allegation. Rosenbloom Ro- allegation III. senbloom also is not independently Conolusion actionable. It is supported by either refer- If Mr. Moldea takes issue with the New ence to the book or non-verifiable York book, Times’ characterization his depending upon meaning gives what one to remedy should not lie in a defamation suit. the word “revive.” The common understand- rely He should reviewers, instead on other ing of “revive” as it is used the review is to itself, and the prove book to worthy his work “bring back” or “renew the mind or memo- of its Today’s claims. holding, fear, I ab- ry.” See Webster’s Collegiate Ninth New solves Mr. Moldea and respon- others (1984). Dictionary words, sibility may In other to and significantly revive affect the free- simply dom with which go “recall” or “discuss reviewers about anew.” their Therefore, jobs. legal Fear of reprisal unlike charges of “sloppiness” threatens to cause behavior, or “sinister” reviewers retreat to rhetorical ex- qualita- which involve cess instead of assessments, explaining gripe tive their and the statement that Mr. attempting support it by reference to the Moldea “revived a discredited notion” is work review. under Such result would chill largely value-neutral. It can be verified lively informative public and discourse looking so, to the book Doing itself. howev- that frequently accompanies publication er, reveals that Mr. Moldea does in fact of an influential book. “bring back” or admittedly “discuss anew” surrounding old accusations Mr. Rosen- The current controversy that surrounds a See, e.g., death. bloom’s at 324 review of Catharine Only MacKinnon’s (“In funeral, the wake of Rosenbloom’s nu- is a point: Words case in often review— questions merous positive arose about negative the circum- in inspiring —succeeds death, of his stances which challenged have discussion and emotion over the relevant sub- ject the contention that greater he drowned matter to a degree accident. than the It suggested work Streitfeld, some that itself. See David Rape by Rosenbloom murdered_ might have been Written Word?: Sparks Book Review Could Ro- Debate, Pornography senbloom’s death anything been Jan. have Post, but Wash. reasons, 1994 For ready impu- Cl. these not, drowning? accidental If it was there tation of factual assertions in ar- awas whole cast of characters who would reviews, tistic literary pro- and rather than means, have had the opportunity, mo- tecting artists, actually the writers tive.”); (Nevertheless, at 325 rumors foul dangerous strikes me as their collected play persisted.”). light of these passages, reputations and no service to connoisseurs of review’s statement that Mr. “re- criticism. vived” the patently accusations is accurate thus cannot be the basis for defamation reviewing is an art books form liability. almost old as civilization. The im- more uphold the I would juries to ordain. book, more controversial

portant the judgment summary grant of court’s district be most hesitant should Courts reviews. the Times. in favor of in this most delicate an arbiter’s role assume speech. Amendment While of First area review” speech as “book

designation of automatically exempt it from

should “opinion” label laws, any than more

libel “sloppiness” of speech, other

enshrines left to the should be work reviewer’s judges determine, than for rather

readers

Case Details

Case Name: Dan E. Moldea v. New York Times Company

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 18, 1994

Citation: 15 F.3d 1137

Docket Number: 19-1044

Court Abbreviation: D.C. Cir.