April 24, 2000
Kenneth Starr on Moldea v. New York Times
By Dan E. Moldea
On February 18, 1994, a three-judge panel for the U.S. Court of Appeals, D.C. Circuit, ruled, 2-1, in my favor in the libel case, Moldea v. New York Times--which challenged an error-filled review of my 1989 book, Interference: How Organized Crime Influences Professional Football. Gerald Eskenazi, a Times sportswriter who has covered the National Football League for nearly forty years, wrote the review.
In the wake of the appellate court's decision--which followed a bitter four-year legal battle during which my attorney, Roger Simmons, and I were relentlessly portrayed as villains in the media--a reporter for the Washington Post accurately quoted me, saying, "We are about to see a demonstration of raw power coming at us like a rifle shot."
In late March 1994--in the midst of a firestorm of apocalyptic and cataclysmic newspaper editorials about this ruling--attorneys for the New York Times petitioned the entire eleven-judge court of appeals for a rehearing of the case, en banc, arguing that the decision "undermines two centuries of jurisprudence protecting literary criticism, . . . [placing] at risk virtually every unflattering review."
At the same time as the filing of the Times's brief, prominent Washington attorney Kenneth Starr, a former Reagan-appointed judge with Court of Appeals for the D.C. Circuit and an ex-Solicitor General of the United States under President Bush, filed an amicus that reeked with the power and prestige of its author. In this brief--which, we believe, completely distorted and misrepresented the facts of our case--Starr spoke on behalf of his clients, which included the Newspaper Association of America, Dow Jones & Company, the Associated Press, Scripps Howard, the Copley Press, the Christian Science Monitor, Time Inc., U.S. News & World Report, the New Yorker, Magazine Publishers of America, the Society of Professional Journalists, among hundreds of other media organizations. My attorney and I simply called Starr's brief "The World Amicus."
Then, on May 3, in an unprecedented moment in American jurisprudence, the same judges--Starr's former colleagues on the D.C. Circuit--reversed their February 18 decision, stating in an opinion known as Moldea II: "Indeed, some bad reviews may be written with an aim to damage a writer's reputation. There is nothing that we can do about this, at least not without unacceptably interfering with free speech."
When interviewed by the New York Times, I commented about this extraordinary turn of events, saying: "These judges spent over six months reviewing the case history as well as my book. On that basis, they ruled in our favor. Since then, the only new contribution has been the avalanche of misleading articles and editorials overreacting to this decision. I think it's legitimate to question what impact all of that had on this very bizarre reversal."1
Three days after the appellate court's reversal, Roger Simmons appeared on Court-TV to debate Kenneth Starr. Legal correspondent Fred Graham moderated.
After laying out the issues of the case, Graham spoke of my accusation against the judges, alleging that they had allowed the media criticism of Moldea I to influence their sudden decision to reverse.
Here is the transcript of the debate between Simmons and Starr:
Graham: Well, let's ask Ken Starr. What else did change other than all this criticism?
Starr: I think in all honesty, Fred, the court had a fuller understanding of the implications of its opinion. It's first opinion was very far reaching. It was a monumental opinion. It was a dynamite opinion. And I don't think that the court apprehended what it had done. And that may seem odd, but it happens. Judges are very busy--
Graham: Morning after? [laughing]
Starr: Morning after. And then the Times comes in and says, 'Here is what the court has done.' It was supported by media interests, indicating 'This is very far reaching.' And the court has, perhaps, overread--as I think it did, and Roger is a wonderful lawyer but I disagree with him on the state of the law. I think the panel opinion, the divided panel opinion, had just misapprehended what the law was. They got it wrong the first time. And, then, to their great credit they said, 'We goofed. We made a mistake, and we're going to get it right.' And they did.
Graham: Now, those two judges who switched, Judge Harry Edwards and Pat Wald, they are both strong-minded judges. They had to know when they issued the first 'monumental decision' that people were going to look at it and analyze it. And then, suddenly, they changed their mind. Is there any precedent? I don't know a precedent for this.
Starr: Judges change their minds. You will see--to Judge Edwards's credit--when he begins the second opinion, he talks about quoting Justice Stewart that 'wisdom sometimes comes late,' and that it's better that it comes late than never at all. And judges need to be open minded about this. So I think this--by the way, Fred--is a great tribute to the court. And I feel very very strongly that the court institutionally should be viewed as not having catered and not been courageous to stick up for what it thought was right--but being open minded enough to take a second look.
Simmons: No one, I think, to my knowledge, would ever begin to criticize the intellectual integrity and the capability of Judge Edwards and Judge Wald. They are two of the finest judges in the country. There is no doubt about it. I think the question here that got created was what exactly the Supreme Court case in 1990--the Milkovich case, which preceded the filing of our complaint by about four months--what it really means. That's the critical issue. We see Milkovich as cleanly and clearly and specifically wiping away the difference between opinions and normal news reporting. And the Milkovich case--
Graham: Well, pardon me for interrupting. You're going to the issue here, and we'll go there in a minute. But it does seem--Do you know of any precedent like this?
Simmons: This is, I think, sui generis. It stands on its own.
Simmons: It's unique. There are certainly instances--as Mr. Starr well points out--where judges will change their mind, where they've seen--missed a case, missed a precedent or something very different about a case that is brought to their attention. This is a case where the judges looked at it for six months before they ruled on the opinion. There was a vigorous oral argument. There was a 2-1 split on it. There was vigorous debate within the court over how it would come out. And they came out passionately for Dan Moldea.
Simmons: Ten weeks later, they came out rather ambiguously for the New York Times. And, I think, what it points to is a need for clarification of this area of the law.
Graham: All right--
Starr: But they came out enthusiastically in favor of one point that I think they had--notwithstanding the care and attention that it got in round one--that there was one very important principle. It's a basic principle of human communication. And that is the context of the statement matters. And the first opinion had simply swept that aside and said, the Supreme Court in this Ohio wrestling coach case [Milkovich] said context really doesn't matter that much. And I think--with all due respect to Judge Edwards's first opinion--that was a misreading of what the Supreme Court said. There was language in the opinion--Milkovich was not the most carefully-crafted opinion in the history of the Supreme Court, so there was language there that could lead a court astray. I think they were led astray by some loose language in Milkovich.
Simmons:Milkovich is very specific. The test that is applied--that should be applied in this case, Ken, is and was whether or not the facts asserted in the review, the column, or the article are verifiable or not. This panel has moved away from that test and said not whether they're verifiable or not, not whether a reasonable juror could find them true or false, depending on evidence, but now the plaintiff has to go back to the old standards that were enunciated in Ollman that were rejected, specifically rejected in Milkovich. And you have to look at what you call context, but really what the court called--the context here is a book review is exempt, basically.
Graham (to Simmons): Well, now, let me ask you here: Isn't that the point? Wouldn't you agree that, traditionally, the law has permitted book reviews and columns, punditry, a little more leeway as far as expressing such views as 'this is sloppy journalism.'
Simmons: Some courts have; some haven't.
Graham: But shouldn't the law do that?
Simmons: I don't agree with that for one reason. This country has moved towards a situation where we have very concentrated press, a situation where people, like Dan Moldea, don't have the opportunity to get their viewpoints across--the way, for example, a Henry Kissinger or a Norman Mailer do. When the New York Times came out with a book review that said that his book contained things that absolutely were not in there or were misstatements about what was in the book, Dan went to the New York Times--and went specifically to Mr. Eskenazi, who had written the article--and asked him to please print these corrections. And the Times first rejected the correction request, and then they rejected his opportunity and his request to print a rebuttal piece. Where does he get the chance to have his side heard?
Graham: But if Mr. Simmons's view of the law prevails, we really would not have book reviews and criticism as we've known it, would we?
Starr: I agree with that. I think Roger--and you can see what a good lawyer he is and he was very persuasive the first time around--but I think his view of the law is quite pernicious. It's quite dangerous to the idea of robust, creative views with respect to that with which Mr. Moldea put out in the public place. He chose to insert himself into the world of ideas and concepts and to be very provocative. His entire thesis--a very provocative thesis--was how organized crime has infiltrated into, has interfered with professional football. You can bet your bippy that that is the kind of subject that is going to get a lot of people very interested and very upset. And some strong views will be expressed. And you're quite right: Traditionally, book reviews and other forms of criticism have been viewed as an opportunity to express themselves. Now, one very important thing: I fully and completely disagree with the observation that there is now an exemption, that anything goes in a book review. The opinion makes that very clear that that is not so and rearticulates a standard that makes lots of sense. And the standard, very briefly, is can that statement that is under challenge--that your client does not like--can it be viewed as a rationale interpretation of the text itself.
Graham (to Starr): But if your view prevails, ultimately--and it's going to the Supreme Court--it will mean, won't it that you can make mistaken, wrong, false statements in a book review that would subject you to being sued and recovery in an article?
Simmons (interrupting Starr): Fred, you go beyond that. The panel, specifically, in the closing passage says the test they've adopted here: not just mistaken but maliciously-wrong book reviews, with lies and libel in them, under the test they've adopted, will go unchecked. Those are their very words. That is the problem.
Graham (to Starr): Malicious falsehoods are okay in a book review under your formulation?
Starr: I don't think so. I think the formulation is: as long as you can find this rooted in the text of the book itself or the thing being referred to. Let's cut through this. What Judge Edwards said is: It will not do in the guise of a book review to say, this person, Dan Moldea, is a complete liar, a drug addict--to make any kind of accusation against his character. Absolutely not, completely actionable. So to, anything that you're describing--
Simmons (interrupting): But, Ken, the key here is the reviewer here was a set-up. He was tied into the NFL. He was their mouthpiece, and he talked to the NFL to get their viewpoint. That was never told to the world. This was supposed to be a neutral review, and the Times advertised it that way. And that is the fact--
Starr (interrupting Simmons): But that gets us, I think, to a critical point, and that is, let's assume, arguendo, that that is meritorious. What's the response to that? In my view--and I think that this is the historic role of the First Amendment--if people are going to insert themselves, they get out and say, 'I'm going to attack this newspaper for what it's done. I'm going to criticize them.' And the correct response is not to go higher with a very able lawyer and file a lawsuit.
Simmons (responding): The proof--
Graham: We have run out of time, I'm sorry, here. But you're going to take this up.
Simmons: I will appeal it.2 The proof of the pudding that we didn't impact on the First Amendment was the drumbeat of adverse opinions written between the first and the second Moldea opinions.
Regarding one of the many consequences from this case: Much has been said and written, claiming that I later became involved in the OIC leaks controversy in an effort to take revenge on Kenneth Starr--for his role in Moldea v. New York Times. But in my Affidavit on OIC Leaks, I explained my previous experience with Starr, adding:
"Despite this encounter, I have never harbored any grudge against Starr, for whom my attorney and I had great respect. In fact, I believe that any reasonable person would agree that I was extremely fair to Starr in my book, A Washington Tragedy: [How the Death of Vincent Foster Ignited a Political Firestorm]--even though I was critical of the manner in which [Robert] Fiske was fired and Starr was hired for the job as independent counsel [on August 5, 1994]."
In short, if I had maintained any long-term resentment towards Starr for interfering with my life, I had a clear opportunity to take it out on him in my book--which I completed before the allegedly illegal OIC leaks became an issue. Instead, I stayed faithful to my responsibilities as a journalist, remaining fair and objective. In the end, I praised Starr and his staff for their work on the Foster case.
Saying that, I stand by the motives behind my participation in the OIC leaks investigation, as I described them in my sworn affidavit. (Also see: "The list of the 24 now-infamous, allegedly illegal OIC leaks.")
1. Five years later, the dissenting judge in Moldea I, Abner Mikva, now retired from the bench, was extremely candid about the issue of media pressure and its impact on his two colleagues during Moldea v. New York Times. In a June 14, 1999, article for the Legal Times, Mikva wrote: "I wish I could claim that my eloquence, either in my dissent or otherwise, persuaded my colleagues to change their minds. It was more likely the drumbeat of criticism begun in the editorials of the Washington Post and the New York Times about the 'serious threat' to the First Amendment posed by the original decision. While my dissent was quoted widely in those editorials, the panel ignored it when the second Moldea opinion held that book reviews are entitled to special protection."
2. The following October, the U.S. Supreme Court allowed Moldea II to stand.