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Saturday, August 25, 1990 - Page updated at 12:00 AM

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Experts Say Ruling Against Critic Opens Door To More Libel Suits

Washington Post

WASHINGTON - Ever since Shelley accused the Quarterly Review of killing his friend Keats, writers have been complaining about bad reviews. For the most part, though, they haven't done much more than grumble - until a Supreme Court decision two months ago appeared to provide a legal weapon.

The first lawsuit against a book review in recent memory was filed in U.S. District Court here this week.

Dan Moldea, author of ``Interference: How Organized Crime Influences Professional Football,'' is suing the New York Times Co. for libel, charging it ``falsely portrayed him as a sloppy and incompetent journalist.'' He is asking for $10 million in punitive damages.

``Interference'' was reviewed on Sept. 3, 1989, by Times sportswriter Gerald Eskenazi, who wrote that ``there is too much sloppy journalism to trust the bulk of this book's 512 pages.'' He then gave five paragraphs of examples.

``Anyone who reads that review is going to think I'm this terrible person,'' Moldea said this week. ``The Times refused to retract or correct these errors. They said it was opinion. I believe critics are entitled to their opinions, but I also believe reviewers should be held accountable for what they write.''

He found encouragement for this view in the Supreme Court's 7-2 decision in Milkovich v. Lorain Journal. The court said then that statements of opinion can be libelous if they contain ``false and defamatory'' facts. ``It was a godsend,'' Moldea said.

Three legal experts split on whether libel cases against reviewers and columnists will be more viable now than in the past. All agreed, however, that the courts probably will see heavy traffic as lawyers test the waters. ``It's going to spawn at least a decade of expensive and extraordinarily time-consuming litigation for the courts,'' said Bruce Sanford, a media lawyer at Baker & Hostetler here.

In one of the disputed sentences in the Times review of ``Interference,'' the reviewer stated that Moldea ``revives the discredited notion that Carroll Rosenbloom, the ornery owner of the (Los Angeles) Rams, who had a penchant for gambling, met foul play when he drowned in Florida 10 years ago.'' And Moldea does revive it for two pages. However, he ends by saying that ``the evidence appears to be clear that Rosenbloom died in a tragic accident and was not murdered.''

Times senior attorney George Freeman said that the paper examined the issue after Moldea first complained a year ago. ``We found the review was fully justified and that no retraction was appropriate,'' he said.

(The review also said that ``several errors in spelling call into question his diligence at simple fact-checking,'' going on to cite three examples. Asked about them, Moldea admitted he had indeed made those errors.)

As these things go, the review of ``Interference'' was rather mild. ``Sloppy'' is the harshest word used. ``Mr. Moldea raises the questions,'' the reviewer concluded, ``but has blunted his own sword of truth.''

Howard Kaminsky is president of the Hearst Trade Book Group, whose Morrow subsidiary published ``Interference.'' Kaminsky, a novelist himself, said, ``The last review I got in the New York Times Book Review was a lot worse. But that's the name of the game. You write something, and you're open to that kind of shot.''

Sanford believes more subjects of criticism will be firing back. ``Take a worst-dressed list, where you have celebrities and then say something about their clothes,'' he said. ``If the commentary on someone falsely suggests something like promiscuity, drug addiction or unprofessional conduct . . . as never before, those people are going to be able to bring lawsuits against the news media.''

He added: ``If you call someone a `jerk' or `lousy,' those are words in our lexicon that are clearly words of opinion. But if you begin to imply something, there's a problem. When you call someone `nuts' or `loony tunes,' are you implying they're emotionally disturbed? In the old days, we'd say clearly not. After Milkovich, one wonders.''

Henry Kaufman, general counsel of the Libel Defense Resource Center, took a less expansive view. ``If I had to predict, I'd say that in those areas where there had been broad protection'' - including reviews and columns - ``one way or another there will continue to be protection.''

First Amendment specialist Floyd Abrams agreed. ``My reaction is, if the accusation in a review that the author of the book is sloppy is to be considered libelous, then we're in for a major rewrite of American libel law. I don't read Milkovich as requiring that or leading to that result.''

But Abrams added, ``I'm not surprised that the decision has led to litigation, and think it is inevitable it will lead to more. . . . Libel lawyers are going to be busy.''

Moldea would like to get busy again too, on other projects. The last year, he said, hasn't been easy.

As a consequence of the Times review, Moldea said, ``I have lost considerable amounts of money. My lecture business dropped incredibly over the past year. I've had a hell of a problem selling another book.''

A more direct result, he said, was that after the review appeared, ``the publisher, with all due respect to them, hung me out to dry.'' (His editor at Morrow, Lisa Drew, refused to comment because the matter is in litigation.)

Copyright (c) 1990 Seattle Times Company, All Rights Reserved.

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