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January 31, 1992

DAN E. MOLDEA, Plaintiff,


The opinion of the court was delivered by: JOHN GARRETT PENN

This case is before the Court on defendant, the New York Times Company's, Motion for Summary Judgment. On February 19, 1991, the Court heard oral arguments. After careful consideration of the motion, the opposition thereto, and the entire record in this case, the Court will grant summary judgment in favor of the defendant.


 The facts may be briefly stated. Plaintiff is the author of Interference: How Organized Crime Influences Professional Football (Interference). In July 1989 William Morrow and Company, Inc. published Interference. On September 3, 1989, defendant, the New York Times Company, Inc. published a book review of Interference. This review was written by Gerald S. Eskenazi.

 On August 24, 1990, plaintiff brought suit against defendant, seeking damages for libel and invasion of privacy as a result of the publication of Eskenazi's review. The following paragraph of defendant's above referenced book review forms the basis of plaintiff's complaint:

 . . . . For there is some really hot stuff in here, albeit warmed over. [Moldea's] examination of the 1980 Super Bowl ticket selling scandal involving Georgia Frontiere, the multimillionaire owner of the Los Angeles Rams, and her husband, Dominic, who went to prison for tax evasion, shows that greed has no bottom line. And [Moldea] raises truly disturbing questions about connections between some owners and friends who may be mob-connected, as well as about newspapers and television shows that regularly pander to people who bet on sports events. But there is too much sloppy journalism to trust the bulk of this book's 512 pages -- including its whopping 64 pages of notes.


 Summary judgment is proper where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment must prove the lack of any genuine issue of fact. However, the motion "is not defeated simply by a bare opinion or an unaided claim that a factual controversy persists." Alyeska Pipeline Service Co. v. U.S. E.P.A., 272 U.S. App. D.C. 355, 856 F.2d 309, 314 (D.C. Cir. 1988) (footnote omitted). When the party opposing the motion for summary judgment does not offer counter-affidavits or other evidentiary material supporting his contention that an issue of fact remains, the evidence presented by the movant must be accepted as true. See Fed. R. Civ. P. 56(e). While it is true, generally, that the Court must view the available facts in the light most favorable to the plaintiffs, Minihan v. American Pharmaceutical Ass'n, 259 U.S. App. D.C. 10, 812 F.2d 726, 727 (1987), in the instant case, the evidence presented by the defendant must be accepted as true. *fn1" Thus, because there are no material facts at issue, the Court may address the question of law.


 Defendant argues that the complaint should be dismissed because the book reviewer's conclusion that plaintiff's book contained "too much sloppy journalism" is a nonactionable statement of opinion. Specifically, defendant asserts that under First Amendment law, a plaintiff in a libel action bears the burden of proving that a false statement of fact was published about him. Defendant argues that "too much sloppy journalism" cannot be proved true or false, but rather is an unverifiable opinion. Thus, defendant asserts that the essential element of falsity is lacking, and summary judgment in its favor is appropriate.

 Plaintiff opposes summary judgment, arguing that defendant's book review contains actionable statements. Specifically, plaintiff argues that to deny summary judgment the Court need only find that statements in the review are sufficiently factual to be reasonably capable of being proved false, or that they imply undisclosed assertions of fact that are capable of being proved false or misleading.

 In Milkovich v. Lorain Journal Co., U.S. , 110 S. Ct. 2695 , 111 L. Ed. 2d 1 (1990), the Supreme Court was asked to recognize "in addition to the established safeguards . . . still another First Amendment-based protection for defamatory statements which are categorized as 'opinion' as opposed to 'fact'." Milkovich, at 2705. Respondents in that case, relied on dicta in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 , 41 L. Ed. 2d 789 (1974), for this proposition. *fn2" In holding that the First Amendment does not require a separate privilege to protect statements labeled as "opinions", the Court emphasized that Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558 , 89 L. Ed. 2d 783 (1986), "stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law . . . where a media defendant is involved." Milkovich, at 2706. Further, the Court stated that Hepps ensures that "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Id. at 2706. Thus Milkovich did not change prior First Amendment law but simply rejected a separate constitutional privilege for statements of "opinion".

 The threshold question, then, is whether or not plaintiff has met his burden of showing that the statement made in defendant's book review is provable as false. Plaintiff contends that several statements in the book review are actionable because they are sufficiently factual to be proven false and they are defamatory because they attack plaintiff's competence and integrity in his profession. However, the Court will focus only on the portion of the book review upon which ...

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