Libel Case Over Book Review Troubles Publishers

AFTER a negative review of his book in the New York Times in 1989, investigative journalist Dan Moldea decided to sue the newspaper for $10 million in damages. A district court judge decided he could not, but recently, without ruling on the merits of the case, a three-judge federal appeals court in Washington, D.C., reversed that decision and said Mr. Moldea could proceed with his suit.

The case, not widely known until the second ruling, has begun to rattle the publishing industry over the potential for libel in book reviews.

Charges review ended career

Moldea charges that the Times, considered by the book industry to have the most influential book review section in the United States, effectively ended his career as journalist and author when it published the negative review.

In the review Moldea was called a ``sloppy journalist,'' and cited for ``ignorance of basic sports knowledge.'' Moldea's book, ``Interference: How Organized Crime Influences Professional Football,'' was published by William Morrow & Company.

The book was reviewed by veteran Times sportswriter Gerald Eskenazi.

``Right now, I wouldn't touch this case with a 10-foot pole,'' said the publicity director of a major New York publishing company, who did not want to be identified. ``The implications for publishing and criticism could be enormous.''

The book editor of a major East Coast newspaper said, ``I have no comment because I walk a tightrope between the needs of book publishers, advertising, and reviewers.''

Sven Birkerts, an author and literary critic who has written many reviews for the New York Times and other newspapers, said, ``I'm a little skeptical about Moldea's contention that a bad review in the Times is a career blocker unless it was a front page [of the book section] dismissal. But the Times doesn't run Page 1 dismissals.''

Mr. Birkerts said that even prior to this case, there was already ``constraint'' among book reviewers.

``My view of the whole reviewing climate is that things are too chummy and benign,'' he said. ``The arts really thrive when the swords are flashing.''

``This case is not about the First Amendment,'' said Moldea in a phone interview. ``If a writer [book reviewer] bases his opinions on a series of false `facts' that are defamatory, then he loses his opinion privileges. That is what this case is about.''

But dissenting judge Abner Mikva of the US Court of Appeals said the ruling would ``open up the entire arena of artistic criticism to mass defamation suits.'' The lower court had ruled that the Times review was an ``unverifiable opinion and is, thus, not actionable under libel law.''

However, in a 1990 ruling, the Supreme Court said statements of opinion were not entirely protected against libel suits. This ruling reversed the previous long-held judicial view of how libel law applies to opinions. The appeals court, basing its decision on this Supreme Court ruling, said the Moldea case could now go before a jury if the review was based on possibly untrue factual statements, and that it could have harmed the plaintiff's professional career.

Protection for opinion

In a statement, the Times said it was disappointed in the ruling, ``which we feel has been wrongly decided, because it does not give sufficient constitutional protections for expressions of opinion in a review.''

Judge Harry Edwards of the appeals court said a review calling a journalist ``sloppy'' was not much different from describing a brain surgeon as having ``clumsy hands.''

His view was that both descriptions could be the basis for libel.

But Judge Mikva again disagreed. ``If the statement that Mr. Moldea wrote a sloppy book is defamatory,'' he said, ``so would be a statement that Bette Midler wore a sloppy dress or that Oliver Stone made a sloppy film.''

Moldea said he spent seven years working on the book, but that after the Times review appeared, ``I couldn't get any contracts,'' either for more books or for lecturing.

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