Dan E. Moldea v. New York Times Company

MIKVA, Chief Judge,

dissenting:

I. IntROduction

When the Supreme Court found the dichotomy between fact and opinion “artificial” in Milkovich v. Lorain Journal, 497 U.S. 1, 19 , 110 S.Ct. 2695, 2705 , 111 L.Ed.2d 1 (1990), it aired out a cloudy area of First Amendment law in a way that has been helpful and relatively easy for other courts to manage. I am concerned that the extra dimension placed on Milkovich by today’s decision causes some troublesome surgery on the First Amendment and its impact on artistic expression. Analogizing a book review that complains that the author of the book under review has engaged in “too much sloppy journalism” to a charge that a brain surgeon has “clumsy hands”, Maj.Op. at 1145, is to equate a piano recital with medical malpractice.

The First Amendment literature has always recognized a sharp distinction between communications intended to inform and those seeking to appeal to the artistic senses. Musical criticism, for one, is rife with epithets denigrating efforts by various composers, singers, violinists, and saxophone players. None of them are conceived to involve the stuff of defamation. Even the late President Truman challenged the criticism of his daughter’s singing with some zingers of his own, but not by claims of defamation. Painters, sculptors, architects, designers, playwrights, poets, movie makers, and fiction writers — all of them have had sharp comments made about their work. To say that every one of those comments is actionable as *1153 defamation because they could be shown to “rest upon provable, albeit unstated, defamatory facts,” is to open up the entire arena of artistic criticism to mass defamation suits. If the statement that Mr. Moldea wrote a sloppy book is defamatory, so would be a statement that Bette Midler wore a sloppy dress, or that Oliver Stone made a sloppy film, or that Itzak Perlman had a sloppy technique, or that Lincoln Steffens played fast and loose with his analyses of reform politicians. I have no doubt that many people reading such derogatory criticism of their favorite artists might have strong feelings about the criticism. I have grave doubt that defamation suits should be used as the arbiter of such literary and artistic tastes.

Admittedly, book reviewing is not quite as “clearly subjective” as other forms of artistic criticism. There are statements about a book that are more capable of being proven false than similar statements about a Chagall window, or even a Shaw play. But I do not know how courts could ever check the slide down the slope that the majority opinion creates today. The standard of “sloppiness” in this context is not verifiable, no matter what examples are used to sustain or reject the charge.

II. Disoussion

A. Historical Protection of Artistic and Literary Criticism.

Potentially defamatory statements of opinion appearing in reviews have long been afforded significant protection from defamation liability, first by the common law privilege of fair comment and, more recently, by First Amendment doctrine. See, e.g., Rodney A. Smolla, Law of Defamation § 6.12[7] (1993) (“As a general principle, authors, journalists, and artists invite criticism of their work product, and ... the mainstream position is clearly to construe such criticism as opinion or fair comment.”). Milkovich , while declining to carve out a distinct privilege for all statements that could be labeled “opinion,” did not significantly alter these earlier protections. What Milkovich did, simply, was shift the inquiry away from whether a statement could be said to be “opinion” and towards whether the statement is verifiable. Accordingly, “[b]oth as guides to the ‘fact v. non-fact’ distinction created in Milkovich , and to. the future evolution of state law protection, the rich body of jurisprudence developed by lower courts during the last two decades under the rubric of the ‘opinion’ doctrine remains alive and well.” Smolla, supra § 6.03[7][d].

The historical safeguards afforded reviews stem from the fact that in the realms of artistic, literary, and culinary endeavors, there are few ready yardsticks with which to measure the opinions of critics. Moreover, readers approach literary and artistic criticism with the expectation that the opinions they express are not meant as objective statements or implications of fact. Rather, “[cjertain formats — editorials, reviews, political cartoons, letters to the editor — signal the reader to anticipate a departure from what is actually known by the author as fact.” Milkovich, supra, at 32 , 110 S.Ct. at 2712 (Brennan, J., dissenting). The public nature of the work under review allows readers to arrive at their own opinions.

The current constitutional protection of nonverifiable statements of opinion can be traced to the common law privilege of fair comment. Due to a concern that defamation suits would stifle valuable public discourse, the common law recognized as an affirmative defense to a defamation action “ ‘the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.’ ” Milkovich, supra, at 13 , 110 S.Ct. at 2702 , quoting 1 F. Harper & F. James, Law of Torts § 5.28 (1956). In general, comment was privileged when it “concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was' not made solely for the purpose of causing harm.” Id. at 10-11, 110 S.Ct. at 2702 , citing Restatement of Torts § 606 (1938). Underlying the privilege was a desire to protect “intuitive, evaluative statements that could not be proved either true or false by the rigorous deductive reasoning of the judicial process.” Mark A. Franklin & Daniel J. Bussel, The Plaintiffs Burden in Defamation: Awareness and Falsity, 25 Wm. & Maey L.Rev. 825, 871. (1984).

*1154 Critical reviews of art and literature fit neatly within the fair comment privilege, and numerous critics have successfully employed it to defend defamation actions. Generally, such reviews are based on true facts that are either stated in the review itself or readily available to the reader by reference to the work, are offered without malice, and reflect the honest and nonverifiable opinion of the reviewer. In Fisher v. Washington Post, 212 A.2d 385 (D.C.1965), for instance, the privilege was applied to a review of a gallery exposition that criticized the art as being “so badly hung among commercial paintings that what quality they might have is completely destroyed.” Id. at 336. And in Sullivan v. Meyer, 141 F.2d 21 (D.C.Cir.1944), this court ruled that it was fair comment for a journalist to characterize the plaintiff as the “author of a defeatist, anti-Jewish book.”

Beginning with the Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the nature of the fair comment privilege began to change. By stating that the Constitution requires “that a defense of fair comment must be afforded for honest expressions of opinion based upon privileged, as well as true, statements of fact,” Id. at 292 n. 30, 84 S.Ct. at 732 n. 30, the Court for the first time hinted at a constitutional basis for protecting statements of opinion. The Court reaffirmed this “fact-opinion” dichotomy in Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), where it stated in dicta that

[ujnder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.

Id. at 339 , 94 S.Ct. at 3006 . Gertz thus “elevated to constitutional principle the distinction between fact and opinion, which had formed the basis of the doctrine of fair comment.” Oll man v. Evans, 750 F.2d 970 (D.C.Cir.) (en banc) cert. denied, 471 U.S. 1127 , 105 S.Ct. 2662 , 86 L.Ed.2d 278 (1985). Prior to Milkovich , lower courts struggled to apply the somewhat illusory distinction between fact and opinion announced in Gertz . In Ollman v. Evans, supra, this court attempted to provide some degree of guidance by setting out a flexible test for distinguishing fact from opinion that took into account several factors, including the common meaning of the language used, the degree to which the statement is verifiable, the context in which the statement occurred, and the broader social context in which the statement fits. Milkovich implicitly rejected Oilman’s, “totality of the circumstances” test in favor of a single inquiry into whether the alleged defamatory statement is verifiable. The factors set forth in Ollman — common meaning, context — remain relevant, but only to the extent they bear on the verifiability of the statement.

The Milkovich Court thus simplified the task of identifying protected opinion by singling out verifiability as the sole factor upon which courts should focus. But as with fact and opinion, the line separating verifiable from non-verifiable statements is not always self-evident. As one commentator has noted, “[vjerifiability is not a property that either does or does not obtain. Rather, it is a property that may be present in varying degrees.” Frederick F. Schauer, Language, Truth, and the First Amendment: An Essay in Memory of Harry Canter, 64 Va.L.Rev. 263, 279 (1978).

B. “Too Much Sloppy Journalism.”

The primary statement before us confirms the point. “Too sloppy” might be taken by some to mean that the book is full of specific factual inaccuracies, a charge the plaintiff could disprove by providing clear support for the statements found in the book. Others, however, might interpret the statement simply to imply that the author wrote a “bad” book, a clearly subjective and non-provable assessment. In my view, “too much sloppy journalism” contained in a book review lies somewhere between those two poles, but far too close to the nonverifiable end of the spectrum to warrant defamation liability.

Applied to another profession or contained in another context, a charge of sloppiness might indeed be actionable. A claim that a “sloppy” doctor botched an operation, for *1155 instance, would .be susceptible to verification by reference to the patient’s recovery, the overall record of the doctor, or some other objective measurement. Or if a product were said to be manufactured in a “sloppy” (or perhaps more aptly, “shoddy”) manner, the producer might be able to prove otherwise by demonstrating, for example, that the product conforms to accepted industry specifications or has an acceptably low defect rate.

However, the inherent imprecision of the phrase “too sloppy” when coupled with its use to describe a book firmly pushes the statement at issue under the protective umbrella of non-verifiable opinion. First, the common understanding of the word “sloppy” as used to describe a piece of writing is one that challenges objective verification. The dictionary defines “sloppy” in this context as “carelessly put together or performed; lacking sound construction.” New Webster Encyclopedic Dictionary of the English Language (7th ed. 1971) (emphasis added). Words denoting concepts such as carelessness and soundness, though sometimes possible to objectify, are typically evaluative judgments that will differ from person to person. What constitutes sloppiness? How sloppy is too sloppy? Should spelling errors suffice or are more grievous lapses in research necessary? In whose eyes? Because of the subjective nature of the term, the recipient of a charge of sloppiness usually will be hard-pressed to disprove that insufficient care was given to the work. ..

Second, the overall tenor of the review suggests that the reviewer was not as much concerned with specific misstatements of objective and verifiable facts as he was with what he saw as Mr. Moldea’s fundamental failure to prove the thesis of the book — his failure, to produce a “smoking gun” linking the NFL to organized crime. At bottom, the review expresses a uniquely subjective evaluation of the quality of Interference. While another reader might disagree that Mr. Mol-dea fumbled the ball, it is difficult to see how one could prove the reviewer’s assessment wrong as it is based largely on his particular tastes and standards. Furthermore, because the burden of proving that an allegedly defamatory statement is false lies with the plaintiff, defendants should prevail in eases like this where the verifiability of the statements at issue is doubtful. See Smolla, supra, § 6.07[2], Accordingly, the phrase “too much sloppy journalism” used in a book review to describe one’s writing style or research methods is simply too subjective to be verified and therefore should be protected under Milkovich .

This conclusion is supported, I think, not only by the vintage fair comment eases discussed above, but also by recent First Amendment precedent. In White v. Fraternal Order of Police, 909 F.2d 512 (D.C.Cir.1990), the defamatory implication that the police officer had tested positive for illegal drugs and engaged in bribery was actionable because clearly the charge could be proven true or false. In Milkovich itself, the implication that the wrestling coach committed perjury was similarly subject to verification. The statements involved in those eases, though cloaked as opinion, have a factual basis. Either the coach perjured himself or he didn’t. Either Detective White tested positive or not. There is little room for interpretation. My understanding of the Milkovich principle is that these types of factual assertions should not escape defamation liability simply because they are prefaced by the words “in my opinion.”

That concern is not present in cases, like this one, that involve subjective evaluations of a plaintiffs performance, particularly when they appear in a review. In Cole v. Westinghouse Broadcasting Co., Inc., 386 Mass. 303 , 435 N.E.2d 1021 (1982), for instance, the Supreme Judicial Court of Massachusetts held nonactionable statements remarkably similar to those at issue here. In that ease, a terminated television reporter brought a defamation action against his former employer for issuing a statement that the newscaster’s firing was a result of his “sloppy and irresponsible reporting.” Holding that the statement could not form the. basis of a defamation action, the court stressed its subjective nature:

... [T]he statements made by [the defendant] can only be viewed as expressions of opinion regarding Cole’s reporting abilities. Whether a reporter is sloppy and *1156 irresponsible with bad techniques is a matter of opinion. The meaning of these statements is imprecise and open to speculation. They cannot be characterized as assertions of fact. They cannot be proved false.

Id. 435 N.E.2d at 1027 (emphasis added).

In Stuart v. Gambling Times, Inc., 534 F.Supp. 170 (D.N.J.1982), a book review of the plaintiffs gaming manual charged that its publication and sale was “the # 1 fraud ever perpetrated upon the gambling public.” The court held that in the context of a book review, the statement could not reasonably be understood as actually accusing the author of fraud (a verifiable fact), but rather, was simply the opinion of the reviewer. Id. at 172 .

Likewise, in Mr. Chow v. Ste. Jour Azur, 759 F.2d 219 (2d Cir.1985), a defamation action involving an unfavorable review of the food and service offered by a Chinese restaurant, the Second Circuit ruled that five of six challenged assertions in the review were protected as non-verifiable statements of opinion. The only statement in the review that the court viewed as verifiable concerned the number of dishes in which the restaurant served its Peking Duck. Id. at 226-27 . As to the other statements, the court noted that “an average reader approaches a review with the knowledge that it contains only one person’s views_” Id. at 227-28 . As a result, the court found the statements “incapable of being proved false.” Id. at 229 .

Another analog to this case might be the traditional “Monday morning quarterback” column in the sports section of the newspaper. If the local columnist calls for the head coach’s resignation for incompetent play-calling, the reader reasonably should understand the column to reflect the personal opinion of the sportswriter. Whether ninety-nine out of a hundred readers agree or disagree with the assessment is immaterial. The opinion is non-verifiable because it so clearly represents the subjective interpretation of one person. The case would be different if the columnist expressed an opinion, without stating its basis, that the coach was drunk, paid off the referees, or failed to show up for practice all week. Each of these opinions connotes facts that can be proved true or false. A general assessment of a coach’s ability — or the quality of an author’s book— does not.

I do not advocate the creation of a wholesale defamation privilege for statements appearing in literary or artistic criticism. My colleagues are correct, of course, that it would be unwise “to craft a rule that permitted otherwise libelous statements to go unchecked so long as they appeared in certain sacrosanct genres.” Maj.Op. at 1146. The majority is equally unwise, however, to ignore altogether the effect of the communicative vehicle upon the audience. See Id. (“... our analysis of this case is not altered by the fact that the challenged statements appeared in a ‘book review.’ ”). As explained above, this view runs contrary to a long history of defamation jurisprudence which recognizes that reviews are generally offered, and reasonably received, as statements of subjective, non-verifiable opinion rather than fact. Reviewers should escape defamation liability unless they attempt to smuggle defamatory and verifiable facts about the author under the guise of criticism. Such is not the case here.

C. The Secondary Statements.

As for the other passages challenged by Mr. Moldea, the two that cause the majority the most concern are those regarding the alleged “sinister” meeting between Joe Namath and Lou Michaels and the “revival” of allegations that foul play was involved in the death of Rams’ owner Carroll Rosenbloom.

1. The “sinister” statement In my view, the review’s implication that Mr. Moldea painted the Namath-Michaels meeting as “sinister” is protected, non-verifiable opinion. The dictionary defines “sinister” as it is used this context as “presaging ill-fortune or trouble.” Webster’s Ninth New Collegiate Dictionary (1984). The issue here is not whether the meeting in fact “presaged trouble”— the fixing of Superbowl III — but whether Mr. Moldea fairly can be said to have given readers that impression. The reviewer expressed the opinion that he did. This conclusion, the basis of which is readily available to all, is the reviewer’s and his alone. As such, *1157 it cannot be proven false, just as an opinion that a person has a “sinister” disposition or “sinister” facial expression cannot be proven false. Had the review stated that Mr. Mol-dea mischaracterized the meeting by using the word sinister, then such an allegation could be proven false. But while my colleagues are correct that the “sinister” characterization is open to debate, debatable does not mean verifiable. Moreover, the statements that the review offers to support its conclusion that Mr. Moldea mischaracterized the meeting as sinister, which are themselves verifiable, are not challenged by Mr. Moldea.

2. The Rosenbloom allegation. The Ro-senbloom allegation also is not independently actionable. It is either supported by reference to the book or non-verifiable opinion depending upon what meaning one gives to the word “revive.” The common understanding of “revive” as it is used in the review is to “bring back” or “renew in the mind or memory.” See Webster’s Ninth New Collegiate Dictionary (1984). In other words, to revive is simply to “recall” or “discuss anew.” Therefore, unlike the charges of “sloppiness” or “sinister” behavior, which involve qualitative assessments, the statement that Mr. Moldea “revived a discredited notion” is largely value-neutral. It can be verified by looking to the book itself. Doing so, however, reveals that Mr. Moldea does in fact “bring back” or “discuss anew” admittedly old accusations surrounding Mr. Rosen-bloom’s death. See, e.g., Interference at 324 (“In the wake of Rosenbloom’s funeral, numerous questions arose about the circumstances of his death, which have challenged the contention that he drowned by accident. It was suggested by some that Rosenbloom might have been murdered_ Could Ro-senbloom’s death have been anything but an accidental drowning? If it was not, there was a whole cast of characters who would have had the means, opportunity, and motive.”); at 325 (Nevertheless, rumors of foul play persisted.”). In light of these passages, the review’s statement that Mr. Moldea “revived” the accusations is patently accurate and thus cannot be the basis for defamation liability.

Mr. Moldea contends that by saying that he “revived” the Rosenbloom allegations, the review implies that Mr. Moldea actually subscribes to them, when in fact he acknowledges in the book that the allegations have been discredited. But even if we were to take “revive” to mean “to dignify or credit” (or if the review used those exact words), I am still not convinced that the statement would be actionable because, like the “sinister” characterization, it is based not on provable facts but on an non-verifiable interpretation of one reviewer. We may disagree with that interpretation upon reading the book, but we cannot prove it false.

III. Conolusion

If Mr. Moldea takes issue with the New York Times’ characterization of his book, his remedy should not lie in a defamation suit. He should rely instead on other reviewers, and the book itself, to prove his work worthy of its claims. Today’s holding, I fear, absolves Mr. Moldea and others of that responsibility and may significantly affect the freedom with which reviewers go about their jobs. Fear of legal reprisal threatens to cause reviewers to retreat to rhetorical excess instead of explaining their gripe and attempting to support it by reference to the work under review. Such a result would chill the informative and lively public discourse that frequently accompanies the publication of an influential book.

The current controversy that surrounds a review of Catharine MacKinnon’s Only Words is a case in point: often the review— positive or negative — succeeds in inspiring discussion and emotion over the relevant subject matter to a greater degree than the work itself. See David Streitfeld, Rape by the Written Word?: Book Review Sparks Pornography Debate, Wash. Post, Jan. 4, 1994 at Cl. For these reasons, ready imputation of defamatory factual assertions in artistic and literary reviews, rather than protecting the writers and artists, actually strikes me as dangerous to their collected reputations and no service to connoisseurs of criticism.

The reviewing of books is an art form almost as old as civilization. The more im *1158 portant the book, the more controversial the reviews. Courts should be most hesitant to assume an arbiter’s role in this most delicate area of First Amendment speech. While the designation of speech as a “book review” should not automatically exempt it from the libel laws, any more than the “opinion” label enshrines other speech, the “sloppiness” of the reviewer’s work should be left to the readers to determine, rather than for judges or juries to ordain. I would uphold the district court’s grant of summary judgment in favor of the Times.