Interference (65 page)

But, with my career at stake, I felt compelled to respond—even though I realized that I would have to do so without the public support of my publisher.

On September 6, I contacted Washington attorney Tom Green, who advised me to send a letter to Eskenazi, pointing out his mistakes and demanding a retraction. He also instructed me to send a copy of this letter to Rebecca Sinkler, then the new editor of the
New York Times Book Review
.

I sent the letter to Eskenazi and a copy to Sinkler on September 7, stating, in part:

I then listed each of the five charges and my responses to them, concluding the letter: “I ask for a full and prompt retraction of your September 3 review in the
New York Times Book Review
. If this request is not satisfied, I shall take legal steps to remedy this situation, which has already caused tremendous illegal and unfair damage to my reputation and economic harm to my book.”

After Eskenazi did not respond by my September 11 deadline, Green called the office of the
Times
' general counsel on September 13, demanding that the
Times
either retract or correct the review.

David Thurm, an attorney for the
Times
, responded on behalf of the newspaper in a September 22 letter. Thurm attempted to defend Eskenazi's review, taking my complaints and addressing each. In doing so, Thurm actually misquoted the specific wording of my book, twisting what I wrote and did not write.

Personally, I believe that Thurm's letter was the turning point in this dispute. The
Times
had copped its position based on its attorney's response and became immovable, assuming that I would never file suit. And when I eventually did, the
Times
had no choice but to stay the course, hoping to outmaneuver me in court.

Thus, the
Times
had reduced this entire matter to nothing more than a game of chicken.

As for me, I really never believed that Thurm and the
Times
would ultimately stand by Eskenazi's error-ridden review, so I engaged in the fight. In effect, we became like two teenagers in fast cars, drag racing toward the edge of a cliff. Who would jump out first?

Interestingly, I had a previous bout with Thurm in 1987 after the
Times
' right-wing public television critic, John Corry, made false statements in his April 15 column about my appearance on a public television program about my 1986 book about Ronald Reagan. My attorney then, John Sikorski of Springfield, Massachusetts, forced Thurm and the
Times
to run a correction that appeared ten days later.

I had made the
Times
back down then, and I was cocky enough to believe that I could do it again.

When my 1989 attorney, Tom Green, expressed his belief in late September that we could not survive the legal threshold for “protected opinion” to get my case into court, I turned to another lawyer and respected acquaintance, Alexander Greenfeld, a former
New York Times
in-house counsel, who was then a professor of journalism at the University of Maryland. After his lengthy examination of the facts of my case, Greenfeld expressed his legal opinion that I had been clearly libeled by Eskenazi, based on the errors of fact in the review. Also, he brushed off Thurm's response as simply “boilerplate.”

However, Greenfeld warned against litigation and advocated a “journalistic solution.” And I certainly agreed. But even Greenfeld, with all of his connections in New York, could not obtain such a solution. By mid-November, he advised me to send a letter to the editor of the
New York Times Book Review
.

Submitting a letter for publication was the last thing I wanted to do. I wanted the
Times
to correct its own mistakes publicly—which, clearly, it was not going to do. I knew that my letter would be perceived as nothing more than just another response from just another author crying “foul.”

Finally, on November 15—after all efforts to obtain either a retraction, corrections, or a “journalistic solution” failed—I wrote and Federal Expressed a letter for publication to Rebecca Sinkler.
⁴
To my surprise, she did not publish my letter and never responded to me.

Even though I was now thinking about filing a lawsuit, I still tried to get my side of the story out through another publication in a last-ditch effort to avoid litigation. But no one would take on the
Times
and give me the opportunity to air my side of this matter. One journalist flat-out told me, “Dan, I write books, too. Don't expect me to screw myself up with the
New York Times Book Review
.”

Very quickly, this whole matter took on a life of its own. The review was no longer perceived as the biased opinion of one sportswriter with conflicts of interest. Few people could even remember Eskenazi's name. Instead, the perception by many was that I had been exposed and then annihilated by the
New York Times
, the world's most influential newspaper.

Within weeks after the publication of the review—while the 1989 NFL season was in full swing—more than twelve thousand copies of
Interference
were returned to the publisher, which immediately ran for cover, cutting short the advertising budget for my book and leaving me without any forum through which to respond to the
Times
.

In addition, reviews and articles in other newspapers virtually ceased. Invitations to appear on radio and television programs came to a halt. No fewer than three television shows—which were planning to feature my book—canceled their segments with me. One known author was even prevented by his publisher from footnoting passages from my book in his own work as a direct result of the
New York Times
review.

Also, since 1983, I had depended on lecturing at colleges and universities to supplement my income. But, after the publication of the
Times
review, the volume of bookings for my lecture, “The Mafia in America,” went into a tailspin.

During the year following the review, I earned only $300 for work published under my own name. Several prospective publishers of my books, as well as of my magazine and newspaper articles, made an issue of the
Times
review, which had suddenly influenced their opinions of my abilities—despite my long record as a responsible journalist.

In fact, no lawsuits were either threatened or filed against
Interference
. No source quoted in the book ever denied the accuracy of his or her quote.

Consequently, a lawsuit became my only legitimate means of self-defense. I simply refused to allow Eskenazi and the NFL to get away with what they had done to my book without a fight. I believed, then and now, that what Eskenazi and the
New York Times
had done to
Interference
was tantamount to an act of censorship, and the National Football League was the beneficiary of that act.

Moldea v. New York Times

On August 23, 1990—just eleven days before the statute of limitations expired and after a final, failed attempt to persuade the
Times
to come to terms—my new attorneys, Roger C. Simmons of Gordon & Simmons in Frederick, Maryland, and Stephen M. Trattner of Lewis & Trattner in Washington, filed a libel suit on my behalf against the
New York Times
in the US District Court for Washington, DC. Simmons and Trattner saw the crux of the case as those issues revolving around Eskenazi's use of the term “sloppy journalism.”

Our case piggybacked the June 1990 US Supreme Court landmark decision in an Ohio case,
Milkovich v. Lorain Journal Co.
, which stated, in part, that published opinions may be libelous if they are based on provably false facts.

But, if anything, the filing of our suit caused more trouble. Opinion writers lambasted me for going to court, thus making me more of a pariah to my colleagues in the media—despite my years of service as a strong advocate for writers' rights, especially during my tenure as the president of Washington Independent Writers, a founding member of the National Writers Union, and a leader of the 1981 American Writers Congress in New York.

Now casting me in the role of villain, the
Washington Post
, in an August 26, 1990, editorial, stated: “For Mr. Moldea to show that this sort of thing is provably false fact, rather than opinion, would require a large and unwarranted step past anything established in the Supreme Court's handling of the Ohio case.”

Desperate for some recognition of the merits of my case, I attempted to solicit independent studies of
Moldea v. New York Times
by a variety of writers' organizations. Such proposals were sent to the Authors Guild, Investigative Reporters and Editors, and even the National Book Critics Circle (NBCC), among others. All of them refused to take sides, which, in an odd way, I accepted as somewhat of a victory. If the review had been correct, none of these groups would even have hesitated to support the
New York Times
.

NBCC president Jack Miles later wrote in the
Los Angeles Times Book Review
:

In September 1990, before I had started to approach the other writers' organizations, the board of directors of Washington Independent Writers, where I had been president in 1981-82, voted to support my position after its own investigation of the case. According to an article in its newsletter, the
Independent Writer
:

Already, this entire matter had become a classic
Catch-22
situation. This is the way I viewed it: If I ignored the review and did nothing, I would be dead. If I sued and lost, I would be dead with a stake rammed through my heart. But even if I sued, proved the merits of my case, and won, I would still be dead—because I would be seen as limiting the First Amendment.

I began to stay up nights, just trying to figure out how I could come out of this nightmare alive.

The
Times
immediately responded to our suit, filing a motion for summary judgment in November 1990 and proclaiming that my whole litigation jeopardized the “robust exchange of views in the marketplace of ideas.” But, certainly, the
Times
' refusal to publish my letter to the editor—which would have completely averted this litigation—denied me the opportunity to participate in this exchange of views.
⁵

Still, we believed that this case would end in one dramatic moment—when my lead attorney, Roger Simmons, a fierce trial lawyer, deposed Gerald Eskenazi under oath. And we were nearly giddy on December 19, 1990, the day before his scheduled deposition, believing that Simmons's penetrating questions and Eskenazi's honest replies would force the
New York Times
into a complete and unconditional surrender.

However, just before the close of business that same day, the trial judge in our case, John Garrett Penn, blocked Eskenazi's deposition and stayed all discovery in the case until he made a decision on the
Times
' motion for summary judgment. In the end, Simmons would never get the opportunity to question Eskenazi about the review, or about his sweetheart relationships with the NFL and Joe Browne.

Oral arguments over the
Times
' motion were heard in federal court on February 19, 1991.

On January 15, 1992, after Penn still had not ruled on the
Times
' motion, we decided to jump-start court action by filing a controversial motion to renew discovery.
⁶
Specifically, in spite of the continued stay, we asked for permission to depose Arthur Sulzberger Sr., the legendary chairman of the board of the
New York Times
. In Simmons's motion, he stated, “Sulzberger's … relationships with NFL owners and his influence on the
NYT
's book review are central issues in this case.”

In the
Times
' response on January 27, defense attorney Bruce Sanford insisted that Sulzberger “does not have any ‘relationships with NFL owners' … There neither is, nor could be, any legitimate reason for seeking discovery from Sulzberger, and the
Times
would vehemently resist such a transparent attempt to harass the head of the family that controls the
Times
.”