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22 F.3d 310, 62
USLW 2684, 306 U.S.App.D.C. 1, 22 Media L. Rep. 1673 United States Court of
Appeals, District of Columbia Circuit. Dan E. MOLDEA,
Appellant, v. NEW YORK TIMES COMPANY, Appellee. No. 92-7065. Argued Sept. 14, 1993. Decided May 3, 1994. HEADNOTES: Action by author of book against newspaper
publisher for libel and invasion of privacy arising out of published book
review. U.S. District Court for District of Columbia, 793 F.Supp. 335, granted
summary judgment in favor of publisher. Court of Appeals, 15 F.3d 1137,
reversed and remanded. On petition for rehearing the Court of Appeals held: (1)
book review comment is actionable only when interpretations are unsupportable
by reference to work under review; (2) applying that test reviewer’s
assertion that author of book had engaged in sloppy journalism was not
actionable. [*311] [**2] COUNSEL: On Appeal from the United States
District Court for the District of Columbia (No. 90cv02053). Roger C. Simmons argued the cause and filed the briefs for the
appellant. Bruce W. Sanford argued the cause for appellee. With him on the
brief were Henry S. Hoberman, and Matthew G. Weber.
JUDGES: Before: MIKVA, Chief Judge, WALD and EDWARDS,
Circuit Judges. Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. HARRY T. EDWARDS, Circuit Judge: I often have been struck by Justice Stewart’s concurring
statement in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398
U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), a case in which the Court
reconsidered and overruled an earlier decision. Justice Stewart remarked that,
“[i]n these circumstances the temptation is strong to embark upon a
lengthy personal apologia.” Id. at 255, 90 S.Ct. at 1595. This remark
has special poignancy for me now, because it underscores the distress felt by a
judge who, in grappling with a very difficult legal issue, concludes that he
has made a mistake of judgment. Once discovered, confessing error is relatively
easy. What is difficult is accepting the realization that, despite your best
efforts, you may still fall prey to an error of judgment. Like Justice Stewart,
I will take refuge in an aphorism of Justice Frankfurter: Wisdom too often never comes, and so one ought
not to reject it merely because it comes late. Henslee v. Union Planters Nat. Bank & Trust Co., 335
U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J.,
dissenting). ____________ In Moldea v. New York Times Co., 15 F.3d 1137
(D.C.Cir.1994) (“Moldea (I)”), this panel was faced with an
appeal brought by author and investigative journalist Dan E. Moldea in
connection with his defamation action against the New York Times Company, Inc.
(“Times”). Moldea’s lawsuit alleged that appellee
libeled him in a book review (the “Times review” or
“review”) published in the New York Times Book Review, a
supplement to the Sunday edition of its daily newspaper. The review stated that
Moldea’s book, Interference: How Organized Crime Influences
Professional Football (“Interference ”), was marred by
“too much sloppy journalism,” and offered a number of
examples of the work’s alleged journalistic shortcomings. The District
Court granted summary judgment in favor of the Times, ruling that the review in
question was not actionable as a matter of law because it consisted only of
unverifiable statements of the reviewer’s opinion, or of statements
that no reasonable juror could find to be false. Moldea v. New York Times
Co.,
793 F.Supp. 335 (D.D.C.1992). In a 2-1 decision, the panel reversed on the
ground that some of the review’s characterizations of
Moldea’s book were potentially actionable because they were
verifiable, and could not be held to be true as a matter of law. Moldea (I), 15 F.3d at 1146-48. After careful consideration of the Times’ petition for
rehearing and Moldea’s response to that petition, we are persuaded to
amend our earlier decision. The original majority opinion was generally correct
in its statement of the law of defamation. Unfortunately, that opinion failed
to take sufficient account of the fact that the statements at issue appeared in
the context of a book review, a genre in which readers expect to find spirited
critiques of literary works that they understand to be the reviewer’s
description and assessment of texts that are capable of a number of possible
rational interpretations. While there is no per se exemption from defamation
for book reviews, our initial resolution [*312] [**3] of this case applied an
inappropriate standard to judge whether the Times review was actionable. In light of our reconsideration of this case, we hold that the
challenged statements in the Times review are supportable interpretations of
Interference, and that as a matter of law the review is substantially true.
Accordingly, we affirm the District Court’s grant of summary judgment
in favor of the Times. I. BACKGROUND The facts of this case are fully explained in Moldea (I), so we
need only briefly sketch them here. The instant case grows out of a highly
negative review of Interference written by New York Times sportswriter Gerald
Eskenazi, and published in the New York Times Book Review on September 3, 1989.
[FN1] Moldea contends that prior to the publication of this review he was a
respected author and journalist, and that both he and his publisher anticipated
that Interference, his fourth book, would be a success. Appellant alleges that
the review’s harsh critique of Interference destroyed the
book’s prospects for commercial success, and effectively ended his career
as a writer as well, because he is now unable to interest other publishers in
his work. Appellant also claims that, because of the review, he can no longer
obtain bookings for lectures and other public appearances, activities which
formerly provided him with significant income. FN1. The
full text of the Times review is reprinted as an appendix to our opinion in
Moldea (I). On August 24, 1990, Moldea filed suit against the Times alleging
defamation and false light invasion of privacy. The Times moved for summary
judgment before either party had begun discovery, and, on January 31, 1992, the
District Court granted the Times’ motion based solely on the texts of
the review and of Interference itself. The trial court ruled that
Moldea’s claim was not actionable as a matter of law because the
portions of the Times review challenged in his suit either were statements of
opinion about a literary work, or were so clearly true that no reasonable juror
could find them to be false. Moldea, 793 F.Supp. at 338. In the District Court and on appeal, Moldea alleged that six
specific statements in the Times review had defamed him by accusing him of
being an incompetent practitioner of his chosen profession, investigative
journalism, and by supporting that accusation with false characterizations of
his book. We held in Moldea (I) that one of these passages was a statement of
opinion that implied defamatory facts because it accused Moldea of being an
incompetent journalist. That statement read: But there is too much sloppy journalism to trust the bulk of this book’s 512 pages—including its whopping 64 pages of footnotes. See Moldea (I), 15 F.3d at 1145-46. Moldea (I) went on to hold that
the remaining statements Moldea challenged were offered by Eskenazi as factual
examples of Interference ’s alleged “sloppiness,”
and that “ [i]n order for the review to be nonactionable as a matter
of law, the Times must show that it offered true facts in support of its
judgment that served to support its statement of opinion.” Id. at
1146. Our earlier decision in this case held that three of the five
remaining statements challenged by Moldea on appeal were not actionable in
defamation. Of the three nonactionable passages, two were incontrovertibly true
statements based upon facts revealed in the text of Interference, while the
third was a supported statement of opinion. See id. at 1146-49. Moldea (I)
held, however, that two of the challenged passages in the Times review were
verifiable, and that a reasonable juror could conclude that they were false.
First, the review stated: Mr. Moldea tells as well of Mr. Namath’s
‘guaranteeing’ a victory in Super Bowl III shortly after a
sinister meeting in a bar with a member of the opposition, Lou Michaels, the
Baltimore Colts’ place-kicker. The truth is that the pair almost came
to blows after they both had been drinking; and Mr. Namath’s
well-publicized ‘guarantee’ came about quite innocently at a
Miami Touchdown Club dinner when a fan asked him if he thought the Jets had a
[*313] [**4] chance.
‘We’ll win. I guarantee it,’ Mr. Namath replied. Second, the review opined that: [Moldea] revives the discredited notion that
Carroll Rosenbloom, the ornery owner of the Rams, who had a penchant for
gambling, met foul play when he drowned in Florida 10 years ago. Our initial opinion in this case concluded that a reasonable juror
could find that the Times review had mischaracterized Interference’s
portrayal of each of the foregoing two events. Accordingly, we held that it was
error for the trial court to grant summary judgment at so early a stage of this
litigation. II. DISCUSSION A. The Importance of Context Moldea (I) noted that, “under the established case law, our
analysis of this case is not altered by the fact that the challenged statements
appeared in a ‘book review’ rather than in a hard news
story.” Moldea (I), 15 F.3d at 1145-46. This statement is
correct insofar as it suggests that there is no per se exemption from
defamation for book reviews. Even the Times concedes this point in its Petition
for Rehearing. See Petition for Rehearing at 4 (“No one doubts that a
book review can be actionable.”). A writer may not commit libel at
will merely by labelling his work a “review.” Moldea (I) is short-sighted,
however, in failing to take account of the fact that the challenged statements
were evaluations of a literary work which appeared in a forum in which readers
expect to find such evaluations. As the Supreme Court has recognized, writers
must be given some leeway to offer “rational interpretation”
of ambiguous sources. See Masson v. New Yorker Magazine, Inc., 501
U.S. 496, 519, 111 S.Ct. 2419, 2434, 115 L.Ed.2d 447 (1991). Thus, when a
reviewer offers commentary that is tied to the work being reviewed, and that is
a supportable interpretation of the author’s work, that interpretation
does not present a verifiable issue of fact that can be actionable in
defamation. The fundamental framework established in Moldea (I) for defamation
actions is sound, and we do not modify it in this decision. As we stated in our
initial opinion, the Supreme Court’s decision in Milkovich v.
Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990),
and this court’s decision in White v. Fraternal Order of Police, 909 F.2d 512
(D.C.Cir.1990), make clear that there is no wholesale exemption from liability
in defamation for statements of “opinion.” Instead,
statements of opinion can be actionable if they imply a provably false fact, or
rely upon stated facts that are provably false. See generally Moldea (I), 15 F.3d at 1143-45. In Milkovich, the Supreme Court rejected the argument that
an accusation of perjury was nonactionable merely because it was offered as the
writer’s “opinion.” In that case, a high school
wrestling coach argued that an Ohio newspaper libeled him by printing a column
which alleged that he had perjured himself in his testimony to a state court
concerning his role in an altercation between his team and an opposing squad at
a wrestling match. The column stated that: “Anyone who attended the
meet … knows in his heart that Milkovich … lied at the
hearing.” Milkovich, 497 U.S. at 5, 110 S.Ct. at 2698. Although
the statements at issue in Milkovich appeared in an “opinion
column” in a newspaper sports section, the Court found no relevance in
this fact in reaching its decision, apparently because an accusation of perjury
is not the sort of discourse that even arguably is the usual province of such
columns. [FN2] Sports columnists frequently offer intemperate denunciations of
coaches’ play-calling or strategy, and readers know this and
presumably take such railings with a grain of salt; [*314] [**5] but an
accusation of criminal conduct is a classic libel, and so Milkovich did not
even pause to assess the effect that the column’s context may have had
on those who read it. FN2. Milkovich did briefly address whether the
“general tenor” of the column negated the impression that the
“writer was seriously maintaining that petitioner committed the crime
of perjury,” 497 U.S. at 21, 110 S.Ct. at 2707, but this assessment
had to do with whether the statements at issue in that case were intended as
hyperbole, not with the genre in which they appeared. The Court’s
decision in Milkovich provided that “loose, figurative, or
hyperbolic” statements generally are not actionable in defamation, but
this status derives from the constitutional protection afforded to parody,
satire, and other imaginative commentary, not from a privilege for
“opinion.” See Moldea (I), 15 F.3d at 1143-44. In Moldea (I), this court observed that Milkovich made no mention of
the fact that the statements at issue in that case appeared in a sports column,
and took that fact to mean that context was irrelevant in the instant case. We
now recognize, however, as has the First Circuit, that Milkovich did not
disavow the importance of context, but simply “discounted it in the
circumstances of that case.” Phantom Touring, Inc. v. Affiliated
Publications, 953 F.2d 724, 729 n. 9 (1st Cir.1992) (holding newspaper theater
column nonactionable in part because “the context of each article
rendered the language not reasonably interpreted as stating ‘actual
facts’ about appellant’s honesty.”), cert. denied,
504 U.S. 974, 112 S.Ct. 2942, 119 L.Ed.2d 567 (1992). This conclusion is
compelled by the logic of two Supreme Court cases expressly reaffirmed in Milkovich, and by the
Court’s decision in Masson, rendered the following term. First, Milkovich reaffirmed the vitality of Greenbelt
Cooperative Publishing Association v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26
L.Ed.2d 6 (1970), and Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770,
41 L.Ed.2d 745 (1974). See Milkovich, 497 U.S. at 16-17, 110 S.Ct. at 2704- 05.
In Bresler, a real estate developer had engaged in negotiations with a city
council for a zoning variance, while simultaneously negotiating with the city
over other land that the city wished to purchase from him. A local newspaper
account stated that some people had characterized the developer’s
tactics as “blackmail,” and the developer sued for libel. The
Court rejected the developer’s argument that “blackmail”
implied criminal activity, noting that “the word
‘blackmail’ in these circumstances was not slander when
spoken….” Bresler, 398 U.S. at 13, 90 S.Ct. at 1541 (emphasis
added). In Letter Carriers, the Court held that the use of the word “traitor”
to define a “scab” in the context of a labor dispute could
not be the basis for a defamation action. 418 U.S. at 271-72, 284-86, 94 S.Ct.
at 2775, 2781-82. Both Bresler and Letter Carriers rely in large part on the
notion that the speech at issue in each case was intended as hyperbole, see Milkovich, 497 U.S. at 20, 110
S.Ct. at 2706-07; however, this fact reinforces the importance of context,
because it is in part the settings of the speech in question that makes their
hyperbolic nature apparent, and which helps determine the way in which the
intended audience will receive them. Thus, the “lusty and imaginative
expression of the contempt felt by union members” for a
“scab” may lawfully find hyperbolic expression during a
strike, Letter Carriers, 418 U.S. at 286, 94 S.Ct. at 2782, because the context
assures that no reader could understand the epithet “traitor”
to be a charge that the “scab” has committed the criminal
offense of treason. Id. at 285, 94 S.Ct. at 2781-82. Second, Masson, handed down in the term following Milkovich,
is further evidence that the Supreme Court has not abandoned the consideration
of context in defamation actions. In Masson, the Court addressed the question
whether a writer’s alteration of quotations attributed to the subject
of an interview could establish the “actual malice” required
for a defamation suit by a public figure. Masson observed that whether
quotations will be interpreted by readers as the actual statements of a speaker
depends on context—for example, whether there is “an
acknowledgment that the work is a so-called docudrama or historical fiction, or
that it recreates conversations from memory, not from recordings….”
Masson, 501 U.S. at 511-513, 111 S.Ct. at 2430-31. In Ollman v. Evans, 750 F.2d 970, 983 (D.C.Cir.1984) (en banc),
cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985), we
recognized that courts have long “considered the influence that …
well-established genres of writing will have on the average reader.” Id. at 984 (emphasis in
original). Given that Milkovich was decided against the backdrop of this
settled principle, and that it expressly reaffirmed two of the Court’s
key precedents in this area, we are, on reflection, convinced that Moldea
(I)
erred in assuming that Milkovich abandoned the principle of looking to the
context in which speech appears. The Court’s decision [*315] [**6] in masson
appeArs to confirm this interpretation of milkovich. while Milkovich could be interpreted
as we read it in our initial decision, we are unwilling to assume that the
Court meant to sweep away so much settled law without a clearer indication that
this was indeed its intent. B. Relevance of the Book Review Context In contrast to the situation in Milkovich, the instant case
involves a context, a book review, in which the allegedly libelous statements
were evaluations quintessentially of a type readers expect to find in that genre.
The challenged statements in the Times review consist solely of the
reviewer’s comments on a literary work, and therefore must be judged
with an eye toward readers’ expectations and understandings of book
reviews. This would not be the case if, for example, the review stated or
implied that Interference was a badly written book because its author was a
drug dealer. In that situation, this case would parallel Milkovich: the reviewer would
simply be employing the medium of a book review as a vehicle for what would be
a garden-variety libel, and the review would thus potentially be actionable. There is a long and rich history in our cultural and legal
traditions of affording reviewers latitude to comment on literary and other
works. The statements at issue in the instant case are assessments of a book,
rather than direct assaults on Moldea’s character, reputation, or
competence as a journalist. While a bad review necessarily has the effect of
injuring an author’s reputation to some extent—sometimes to a
devastating extent, as Moldea alleges is true
here—criticism’s long and impressive pedigree persuades us
that, while a critic’s latitude is not unlimited, he or she must be
given the constitutional “breathing space” appropriate to the
genre. New York Times Co. v. Sullivan, 376 U.S. 254, 272, 84
S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). We believe that the Times has suggested the appropriate standard
for evaluating critical reviews: “The proper analysis would make
commentary actionable only when the interpretations are unsupportable by
reference to the written work.” Petition for Rehearing at 8 (emphasis
added). This “supportable interpretation” standard provides
that a critic’s interpretation must be rationally supportable by
reference to the actual text he or she is evaluating, and thus would not
immunize situations analogous to that presented in Milkovich, in which a writer
launches a personal attack, rather than interpreting a book. This standard also
establishes boundaries even for textual interpretation. A critic’s
statement must be a rational assessment or account of something the reviewer
can point to in the text, or omitted from the text, being critiqued. For
instance, if the Times review stated that Interference was a terrible book
because it asserted that African-Americans make poor football coaches, that
reading would be “unsupportable by reference to the written work,”
because nothing in Moldea’s book even hints at this notion. In such a
case, the usual inquiries as to libel would apply: a jury could determine that
the review falsely characterized Interference, thereby libeling its author by
portraying him as a racist (assuming the other elements of the case could be
proved). Our decision to apply the “supportable
interpretation” standard to book reviews finds strong support in
analogous decisions of the Supreme Court, all decided or reaffirmed after Milkovich. These cases
establish that when a writer is evaluating or giving an account of inherently
ambiguous materials or subject matter, the First Amendment requires that the
courts allow latitude for interpretation. For example, in Bose Corp. v. Consumers
Union of United States, Inc., 466
U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), a decision the Court
discussed and reaffirmed in Masson, a reviewer writing for Consumer Reports
magazine described the experience of listening to music through a pair of
stereo speakers: “[I]ndividual instruments heard through the Bose
system seemed to grow to gigantic proportions and tended to wander about the
room.” Bose, 466 U.S. at 488, 104 S.Ct. at 1953. Bose Corporation
sued for defamation, alleging that the reviewer’s unflattering
portrayal was factually inaccurate. The Court held that the statements were not
actionable, because they were not so obviously false as to [*316] [**7] sustain a
finding of “actual malice.” As the Court interpreted Bose in Masson: [T]he result was not an assessment of events
that speak for themselves, but “one of a number of possible rational
interpretations of an event that bristled with ambiguities and descriptive
challenges for the writer.” We refused to permit recovery for choice
of language which, though perhaps reflecting a misconception, represented
“the sort of inaccuracy that is commonplace in the forum of robust debate
to which the New York Times rule applies.” Masson, 501 U.S. at 518, 111
S.Ct. at 2434 (quoting Bose, 466 U.S. at 512, 513, 104 S.Ct. at 1966)
(internal citation omitted). The Court’s opinion in Bose relied heavily on its earlier
decision in Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct.
633, 28 L.Ed.2d 45 (1971). Pape reversed a libel judgment against a reporter
who had summarized a report by the United States Commission on Civil Rights
discussing civil rights abuses by police officers. The article quoted the
Commission’s summary of the facts of an alleged incident of police
brutality, but failed to state that the Commission had qualified its remarks by
noting that they were taken from a civil complaint. As in Bose, the Court held that
the claim was not actionable because the publication was not sufficiently false
to sustain a finding of “actual malice.” See Masson, 501 U.S. at 518, 111
S.Ct. at 2434. Masson explained that Pape “distinguished between a
‘direct account of events that speak for themselves’ and an
article descriptive of what the Commission had reported. Time, Inc. v. Pape took into account the
difficult choices that confront an author who departs from direct quotation and
offers his own interpretation of an ambiguous source.” Masson, 501 U.S. at 518, 111
S.Ct. at 2434 (quoting Pape, 401 U.S. at 285, 91 S.Ct. at 637) (internal
citation omitted). Finally, Masson itself noted that: “The protection for
rational interpretation serves First Amendment principles by allowing an author
the interpretive license that is necessary when relying upon ambiguous
sources.” 501 U.S. at 518, 111 S.Ct. at 2434. Masson concluded that in
order to state a claim for defamation based upon the alteration of direct
quotations, a plaintiff must show that the alterations resulted in “a
material change in the meaning conveyed by the statement.” Id. at 517, 111 S.Ct. at
2433. [FN3] Although Masson, Bose and Pape all concerned the
evidence necessary to establish “actual malice,” those
decisions are rooted in the question of a plaintiff’s ability to prove
falsity so as to show that a defendant presented information he or she knew to
be false. [FN4] Because of their focus on falsity, the reasoning of these
decisions is fully applicable to the instant case. Masson, Bose and Pape recognized that some
materials by their very nature require interpretation, and that the First
Amendment affords latitude to those engaged in that task. Reasonable minds can
and do differ as to how to interpret a literary work. Accordingly, as Masson counsels, we must
allow a degree of “interpretive license.” 501 U.S. at 518,
111 S.Ct. at 2434. FN3. Masson rejected a “rational
interpretation” standard for quotations that are purportedly the
actual words of a speaker, because such quotations signal readers that the
quoted material is something more than just the writer’s
“interpretation.” See Masson, 501 U.S. at 517, 111
S.Ct. at 2433, 2434. In short, direct quotations are “the
quintessential ‘direct account of events that speak for
themselves.’ ” Id. at 518, 111 S.Ct. at
2434 (quoting Pape, 401 U.S. at 285, 91 S.Ct. at 637). In the instant case, the
Times review at no point purported to quote from Interference, but rather
offered what was plainly the reviewer’s interpretation of the book.
Thus, in this regard, the instant case is much more like Bose and Pape than it is like Masson, and the
“supportable interpretation” standard is appropriate. FN4. We express no opinion as to whether the
“actual malice” standard would apply in Moldea’s
case, and do not limit application of the “supportable interpretation”
standard to cases in which proof of actual malice is required. C. Application of the “Supportable
Interpretation” Standard to the Times Review As we noted in our initial decision, this appeal presents a pure
question of law, which we review de novo: whether Moldea can in fact state a
claim for defamation. Moldea (I), 15 F.3d at 1142. In this situation, we must
determine as a threshold matter whether a challenged statement is capable of a
[*317] [**8] defamatory
meaning; and whether it is verifiable—that is, whether a plaintiff can
prove that it is false. See generally, id. at 1142-45. The Times review is, as
we previously held, capable of a defamatory meaning insofar as it tends to
injure Moldea’s reputation as a practitioner of his chosen profession,
investigative journalism. The key to this case is the question of
verifiability. Although Moldea (I) held that the Times review’s
statement that Interference contained “too much sloppy
journalism” was a verifiable assessment of the book, we now recognize
that, in the context of a book review, it is highly debatable whether this
statement is sufficiently verifiable to be actionable in defamation. Arguably,
our decision in Moldea (I) failed adequately to heed the counsel of both
the Supreme Court and our own precedents that “[w]here the question of
truth or falsity is a close one, a court should err on the side of
nonactionability.” Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292
(D.C.Cir.) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106
S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986)), cert. denied, 486 U.S. 825, 109 S.Ct.
75, 102 L.Ed.2d 51 (1988). “The First Amendment requires that we
protect some falsehood in order to protect speech that matters.” Gertz
v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974).
The Court has cautioned in several cases that the First Amendment preserves a
“breathing space” essential to the exercise of freedom of the
press. “To that end [the Supreme] Court has extended a measure of
strategic protection to defamatory falsehood.” Id. at 342, 94 S.Ct. at
3008. However, we need not determine whether “too much sloppy
journalism” is verifiable, as the statements that the Times review
offers in support of this assessment are supportable interpretations of
Interference. Thus, even if the review’s assertion that the book
contains “too much sloppy journalism” is verifiable, that
assessment is supported by revealed premises that we cannot hold to be false in
the context of a book review. As we stated in Moldea (I): “Because the
reader understands that such supported opinions represent the writer’s
interpretation of the facts presented, and because the reader is free to draw
his or her own conclusions based upon those facts, this type of statement is
not actionable in defamation.” Moldea (I), 15 F.3d at 1144-45. As we noted above, Moldea (I) held that only two of the five
challenged passages in the Times review could be proven to be false; the other
three were held either to be true, or to be supported statements of opinion. In
addition, Moldea did not challenge the review’s assertion that
Interference contains several spelling errors which the reviewer concluded
“call into question [Moldea’s] diligence at simple
fact-checking.” Thus, only two passages in the Times review are even
potentially actionable: the statement that Interference “revives the
discredited notion” that Carroll Rosenbloom was murdered, and the
claim that Moldea described a meeting between opposing players just before the
1969 Super Bowl as “sinister.” Our initial decision in this case erred by basing its holding on a
standard that failed to take into account the fact that the challenged
statements appeared in the context of a book review, and were solely
evaluations of a literary work. Moldea (I) considered whether a reasonable jury
could find that the challenged statements were false because they
mischaracterized Interference. See Moldea (I), 15 F.3d at 1146,
1147. Such a standard might be appropriate in the case of an ordinary libel
such as that at issue in Milkovich, but it is an inappropriate measure of an
interpretation of a book. Applying the “supportable
interpretation” standard, the correct measure of the challenged
statements’ verifiability as a matter of law is whether no reasonable
person could find that the review’s characterizations were supportable
interpretations of Interference. Applying this standard, we hold that the Times
review is not actionable in defamation. First, the Times review stated that: [Moldea] revives the discredited notion that Carroll Rosenbloom,
the ornery owner of the Rams, who had a penchant for gambling, met foul play
when he drowned in Florida 10 years ago. [*318] [**9] Moldea discusses Rosenbloom’s drowning in pages
319 through 326 of his book, closing his account with quoted observations from
several of Rosenbloom’s friends, who speculate that he was murdered.
Interference later reveals, on page 360, that Moldea has located previously
unknown photographs, taken at Rosenbloom’s autopsy, which make clear
that he “died in a tragic accident and was not murdered.” As
we held in Moldea (I), a reasonable jury could conclude that the Times
review’s characterization of Interference’s portrayal of
Rosenbloom’s death was false, and that the reviewer’s account
of the book creates the misleading impression that Moldea inadequately
investigated this story. Moldea (I), 15 F.3d at 1147-48. However, given that
Interference does not reveal that Rosenbloom’s death was accidental
until 35 pages after giving undeniably titillating hints of homicide, we cannot
hold that a reviewer could not reasonably suggest that Moldea sought to
“revive” the notion that Rosenbloom was murdered in order to
build suspense before disproving that theory. The second potentially actionable review passage states that: Mr. Moldea tells as well of Mr.
Namath’s ‘guaranteeing’ a victory in Super Bowl III
shortly after a sinister meeting in a bar with a member of the opposition, Lou
Michaels, the Baltimore Colts’ place-kicker. The truth is that the
pair almost came to blows after they both had been drinking; and Mr.
Namath’s well-publicized ‘guarantee’ came about
quite innocently at a Miami Touchdown Club dinner when a fan asked him if he
thought the Jets had a chance. ‘We’ll win. I guarantee
it,’ Mr. Namath replied. Moldea (I) concluded that a reasonable jury could find that Moldea
did not describe the meeting as a “sinister” rendezvous, but
rather made clear that the meeting was “quite accidental and even
confrontational.” Interference at 197; see Moldea (I), 15 F.3d at 1146-47.
Even applying the “supportable interpretation” standard, this
review passage is close to the line. Interference not only states that the
Namath-Michaels meeting was “accidental,” but on the same
page quotes Michaels as saying “What we talked about had no
relationship to the game,” and quotes another player present at the
meeting as confirming that “ ‘nothing
technical’ about the game was discussed.” Interference at
197. The Times’ petition for rehearing argues only that the
review’s characterization is supported by the fact that
Interference’s description of the Namath-Michaels meeting appears in a
chapter of the book largely devoted to probing allegations that there was
something “suspicious” about Super Bowl III. See Petition for
Rehearing at 12 (citing Interference at 197). We are troubled by the “sinister meeting”
passage, but are constrained to conclude that it does not give rise to an
actionable claim. The review offered at least six observations to support the
charge of “sloppy journalism”: the five challenged passages,
plus the unchallenged claim that Moldea made several spelling errors. At least
five of these observations could not be proved false at trial, either because
they are true, are supported opinion, are reasonable interpretations, or are
not challenged in this suit. Moldea is left with only the “sinister
meeting” passage as a possible basis for his defamation claim, and
this is a very weak basis indeed. For one thing, the “sinister meeting”
passage is not defamatory on its face, but rather is simply one of the
“interpretations” offered in support of the review’s
assessment of Moldea’s book. Furthermore, even without the support of
the “sinister meeting” passage, the review’s
assertion that Interference is marred by “too much sloppy
journalism” is (as a legal matter) “substantially
true,” and so is not actionable in defamation. As Moldea (I) noted, “substantial truth”
is a defense to defamation. Moldea (I), 15 F.3d at 1150. “Slight
inaccuracies of expression are immaterial provided that the defamatory charge
is true in substance.” Liberty Lobby v. Dow Jones, 838 F.2d at 1296
(citing Restatement (Second) of Torts § 581A cmt. f (1977)); accord Foretich
v. CBS, Inc., 619 A.2d 48, 60 (D.C.1993) (citing Liberty Lobby v. Dow
Jones).
The Supreme Court explained this defense in Masson by noting that:
“Minor inaccuracies do not amount to falsity so long as the substance,
the gist, the sting, of the libelous charge be justified.” [**10] [*319] 501 U.S. at
517, 111 S.Ct. at 2433 (interpreting California law) (internal quotation
omitted); accord Liberty Lobby v. Dow Jones, 838 F.2d at 1296 (a
statement is nonactionable if “[t]he sting of the charge … is
substantially true.”). The difficulty here is that, as Moldea (I) pointed out, this
circuit rejected the so-called “incremental harm rule” in Liberty
Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 (D.C.Cir.1984), vacated on other
grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Moldea (I), 15 F.3d at 1149-50.
Application of the “substantial truth” test when
“incremental harm” is not tolerated can be conceptually
confusing. However, on reconsidering the instant dispute, we believe Moldea
(I)
read this court’s rejection of the incremental harm rule much too
broadly, and that Anderson’s proscription is not applicable in this
case. Liberty Lobby v. Anderson rejected the defendants’
claim that the plaintiffs in that case were “libel-proof”
because “unchallenged portions of [defendants’] articles
attribute[d] to the [plaintiffs] characteristics so much worse than those attributed
in the challenged portions, that the latter could not conceivably do any
incremental damage.” 746 F.2d at 1568. Then-Judge Scalia observed
that: The law, however, proceeds upon the optimistic
premise that there is a little bit of good in all of us—or perhaps upon
the pessimistic assumption that no matter how bad someone is, he can always be
worse. It is shameful that Benedict Arnold was a traitor; but he was not a
shoplifter to boot, and one should not be able to make that charge while
knowing its falsity with impunity.” Id. However, the opinion goes on to note that: There may be validity to the proposition that
at some point the erroneous attribution of incremental evidence of a character
flaw of a particular type which is in any event amply established by the facts
is not derogatory. If, for example, an individual is said to have been
convicted of 35 burglaries, when the correct number is 34, it is not likely
that the statement is actionable. That is so, however, not because the object
of the remarks is “libel-proof,” but because, since the
essentially derogatory implication of the statement (“he is an
habitual burglar”) is correct, he has not been libeled. Id. at 1568-69 n. 6. This latter point is dispositive of the instant
case. The disputed “sinister meeting” passage in the
Times review is not inherently defamatory—i.e., it is not like calling
Benedict Arnold a “traitor” and a
“shoplifter,” to cite the example used in Anderson. Rather,
the discussion of the “sinister meeting” is but one of
several interpretations of the book offered to support the claim of
“sloppy journalism.” As such, it does not come within the
compass of “incremental harm.” Because the review relies
principally on statements that are true, supported opinions or supportable
interpretations to justify the “sloppy journalism”
assessment, we are constrained to find that it is substantially true and
therefore not actionable. III. INCIDENTAL ISSUES Because we uphold the District Court’s grant of summary
judgment for the Times on Moldea’s defamation claim, Moldea’s
related claim for false light invasion of privacy must also fail. As we noted
in Moldea (I), “a plaintiff may not avoid the strictures of the
burdens of proof associated with defamation by resorting to a claim of false
light invasion.” Moldea (I), 15 F.3d at 1151 (citing Cohen v. Cowles
Media Co., 501 U.S.
663, 670, 111 S.Ct. 2513, 2519, 115 L.Ed.2d 586 (1991); Hustler
Magazine, Inc. v. Falwell, 485
U.S. 46, 56, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988)). Similarly, our
resolution of Moldea’s defamation claim requires that we uphold the
District Court’s denial of permission to amend the Complaint in the
instant case. See Moldea v. New York Times Co., 793 F.Supp. 338
(D.D.C.1992). Appellant sought to add four causes of action to his Complaint,
based upon the Supreme Court’s decision in Cohen v. Cowles Media Co. In light of our
resolution of Moldea’s libel claim, we agree with the trial
court’s assessment that the amended Complaint could not withstand a
motion to dismiss, and so would be futile. As Cohen itself held, a
plaintiff may [*320] [**11] not use related causes of action to avoid the
constitutional requisites of a defamation claim. See Cohen, 501 U.S. at 670, 111
S.Ct. at 2519. IV. CONCLUSION Moldea has made a number of allegations in this suit that Gerald
Eskenazi’s negative review of Interference was prompted in part by
Eskenazi’s allegiance to the National Football League
(“NFL”). Moldea alleged in his original brief to this court
that Eskenazi has covered the NFL as a correspondent for over thirty years, and
that he was therefore biased against Interference because he was dependent on
the league’s goodwill in order to gain access to information necessary
to report on its activities. See Brief for Appellant at 8-9. Indeed,
Moldea’s book predicts that the NFL’s “loyal
sportswriters” will try to discredit Interference. See Interference at
25. Even if true, however, these allegations do not make a case for appellant. Any intelligent reviewer knows at some level that a bad review may
injure the author of the book which is its subject. 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. There simply is no viable way to distinguish
between reviews written by those who honestly believe a book is bad, and those
prompted solely by mischievous intent. To allow a plaintiff to base a lawsuit
on claims of mischief, without some indication that the review’s
interpretations are unsupportable, would wreak havoc on the law of defamation.
See McBride v. Merrell Dow & Pharmaceuticals, Inc., 717 F.2d 1460, 1466
(D.C.Cir.1983) (“Libel suits, if not carefully handled, can threaten
journalistic independence. Even if many actions fail, the risks and high costs
of litigation may lead to undesirable forms of self-censorship.”). “As James Madison pointed out in the Report on the
Virginia Resolutions of 1798: ‘Some degree of abuse is inseparable
from the proper use of everything; and in no instance is that more true than in
that of the press.’ ” Gertz, 418 U.S. at 340, 94
S.Ct. at 3007. We are not insensitive to the fact that the
“supportable interpretation” rule may permit some malicious
reviews to go unchecked; however, “[b]ecause an ad hoc resolution of
the competing interests at stake in each particular case is not feasible, we
must lay down broad rules of general application.” Id. at 343-44, 94 S.Ct.
at 3009. This is a difficult case, and we can easily understand the
frustrations that have prompted Mr. Moldea’s long legal battle. Upon
reconsideration, however, we find that our first opinion in this case was
misguided. Accordingly, we modify that opinion as indicated herein, and affirm
the grant of summary judgment in favor of appellee New York Times Company. So ordered. |