New Orleans Jazz & Heritage Festival, Neil Young on May 3, and May 4, 1970

My colleague Carolyn Jack today is blogging about the New Orleans Jazz & Heritage Festival, a stirring example of art’s power to give vitality to a troubled city.  It isn’t easy to figure out an angle that ties the Jazz Fest to law, but I don’t need to.  One of my favorite lawyer/bloggers is Ray Ward, who blogs as Minor Wisdom (the name a paranomasia apparent to any lawyer). Ray lives in New Orleans, and for him the night before Jazz Fest is “Like Christmas Eve.” He’s my source for all things Jazz Fest, from the proper gear to all the performance schedules. I’m looking forward to his reports from the scene. He will be my link between law and Jazz Fest.  But, most of all, I wish I were there.

I would love to see Neil Young on May 3.  One amazing thing about that show on that date is its proximity to May 4. I’m not sure how many people think each year about May 4. I do.  I was 10 years old on May 4, 1970.  I remember coming home from school and hearing that Ohio National Guardsmen 45 minutes away from my house had shot students who had been protesting the Vietnam War.  I was young, but I was a dark kid, and I felt destroyed by the thought that in this land of free speech, where protest is considered an inalienable right, students could be shot dead for protesting a war, much less that war.  That Neil Young soon after gave voice to my utterly inarticulate despair forever made me devoted to him.

Franz Welser-Möst is a snob, Donald Rosenberg is engaged in a seemingly futile lawsuit, and Cleveland is no farmer’s village.

I am flattered and honored that people whose opinions I enormously respect, including Jill Miller Zimon, have asked me to opine on this matter, reported by the New Yorker:

The Cleveland Plain Dealer created a scandal when it demoted its staff classical-music critic, Donald Rosenberg, to general arts-reporter status because of his overwhelmingly negative reviews of the Cleveland Orchestra-specifically its conductor, Franz Welser-Möst. Now Rosenberg is suing the conductor, the Plain Dealer, the orchestra, and specific staff members of both organizations, detailing a conspiracy in which the orchestra put massive pressure on the newspaper. We give you the details, as listed in Roseberg’s public suit.

A scandal it might be. As Sam Bergman writes on the Minnesota Orchestra website:

So what’s really going on here? Well, Rosenberg, though widely respected as a writer and critic, has had something of a bee in his bonnet ever since the Cleveland Orchestra’s current music director, Franz Welser-Möst, took up his post in 2002. As Tim Smith, another respected critic, put it on his blog, “Don has judged that Welser-Möst is lacking in certain abilities in certain repertoire, that he doesn’t necessarily get the best out of music or the eminent ensemble.” As a result of this conclusion, Rosenberg has been handing out more unfavorable notices than one would normally expect to read about an orchestra as august as Cleveland’s.

Here’s my take on the matter: I am shocked, shocked that a newspaper exercises influence over its reporting, reviewing, and editorializing to advance the interests of its patrons.

Don’t get me wrong.  The Plain Dealer might lose whatever credibility it has left in caving to the Cleveland Orchestra to insulate it from Donald Rosenberg rigorous criticism.  As Bergman puts it, “while the relationship between those who perform and those who write about performers will probably never be anything but uneasy, it crosses a dangerous line for those on the performance side to exercise backroom power to remove a writer they find inconvenient.”

But I’m a law professor, not a public relations consultant.  My opinion is being sought, I presume, because Rosenberg filed a lawsuit.  And Rosenberg’s lawsuit may be even more futile than the often harsh criticism he has directed at one of our city’s hallowed cultural institutions.

In short, even taking Rosenberg’s allegations to be true, the Plain Dealer reassigned him (unlike the 21% of its unionized newsroom staff that has been laid off) because the newspaper did not like what he was writing about the Cleveland Orchestra. As far as I know, such a reassignment breaches no duties, contractual or otherwise. That the Plain Dealer may lose credibility as an objective journalistic outlet as a result is one thing; the newspaper’s loss of credibility, however, does not give rise to a reporter’s right to recover damages.

Rosenberg’s complaint (pdf) claims that on August 25, 2004, he wrote an article in the Plain Dealer that quoted Franz Welser-Möst, the Conductor and Music Director of the Cleveland Orchestra, stating that, among other disparaging remarks regarding Cleveland and the Orchestra’s donors, Cleveland is as an “island” and “an inflated farmer’s village” with a world-class orchestra.

No matter how you evaluate legal questions, Welser-Möst’s comments were stupid and condescending.  If Cleveland could recover damages for stupid and condescending comments, though, . . . well, you get the drift.  We’d be the Paris of the Great Lakes.

Rosenberg’s complaint goes on to allege that in response to his story, the Orchestra’s public relations director told Rosenberg he would suffer “consequences.”  These consequences, according to Rosenberg’s complaint, included a “campaign to besmirch Plaintiff’s reputation as a music critic,” efforts to “tortiously interfere” with his business relationship with the Plain Dealer, and the creation of “obstacles to his ability to function as a music critic.” This “retributive and punitive campaign of vilification against” Rosenberg, among other things, allegedly violated the “public policy” of the State of Ohio, Plaintiff’s employment rights, and promises that had been made to him by the Plain Dealer. In addition, the campaign allegedly defamed Rosenberg.

What does this legalese mean?  First, Rosenberg is claiming that the PD was out to discredit him as a music critic.  Second, he seems to suggest that criticizing a critic is somehow in violation of Ohio law and public policy and of his contractual rights with the PD.  Finally, he claims that the PD knowingly lied about him.

There are several problems with Rosenberg’s legal claims.  First, any critic is himself fair game for criticism.  If the First Amendment (which Rosenberg brandishes in his support) means anything, it means that we allow a free and open debate among opposing viewpoints.  Rosenberg has often been harsh in his criticism of the Cleveland Orchestra and especially of Welser-Möst.  He can hardly claim to any legal harm resulting from strong disagreement with his views, even from within his own paper.  Has anyone read the debates between, say, Kevin O’Brien and Dick Feagler?

As to any breach of contract Rosenberg might be alleging, my best guess is that he is an employee at will, which means that he can be fired for any reason at any time.  If the PD doesn’t like what he’s writing, they can fire him.  And they didn’t fire him.  They transferred him to a different beat.  Nor am I aware of any Ohio law or policy that forbids an employer or even a newspaper from firing or transferring a reporter who’s work they don’t like.

Finally, Rosenberg claims he has been defamed.  That claim deserves a closer look.   Defamation is a false statement made, with knowledge of its falsity, for the purpose of injuring its victim.  The complaint Rosenberg filed specifies the following ways in which he was defamed: (1) a statement that “the credibility of the newspaper had been compromised” by Rosenberg’s withering reviews of Welser-Möst’s conducting, (2) an assertion Rosenberg was “attacking the orchestra,” (3) a claim Rosenberg’s reviews were “unfair,” and (4) a statement that the Plain Dealer’s situation had become “untenable” as a result of Rosenberg’s negative reviews of the orchestra.

None of these statements are the kinds of factual assertions that are likely to support a finding of defamation.  If your employer claims your conduct is hurting its business because you have, undeniably, been expressing harsh views, can that be characterized as a lie?  It is important to note that Rosenberg is not claiming that the PD lied about what he said — the entire dispute is about how to characterize — how to describe with adjectives — what he said.  A newspaper is a business.  If its reporters are not serving that business, the newspaper is no more obligated to keep employing the employee than is a retail establishment required to keep employing an impolite salesman.

I may be overly cynical in the views I am expressing here.  My journalist friends are concerned with the ethics of this situation.  But I don’t understand why a newspaper is any more obligated to employ someone it believes is undermining its message, as long as the newspaper is not lying about the reporter’s behavior, than is any other employer.  If the PD no longer liked Donald Rosenberg’s reviews of the Cleveland Orchestra, it had every right to relieve him of his duties to review the Cleveland Orchestra.

The Plain Dealer’s readiness to cow tow to the Cleveland Orchestra may damage the newspaper’s credibility, but that is another matter altogether.  By all means, if you loved Donald Rosenberg’s reviews and feel the Plain Dealer has sold its soul to a snob who has no use for our “farmer’s village” other than to exploit George Szell’s priceless legacy, stop going to see the Cleveland Orchestra.  Of course, that course of action may indeed reduce us to little more than a farmer’s village.  Lord knows we won’t be manufacturing cars or auto parts any longer.

But Donald Rosenberg?  He has no contractual, moral, constitutional, or other enforceable right to force the Plain Dealer to allow him to continue to criticize Franz Welser-Möst in its pages.  Maybe he’d like to start a blog.  I know Carolyn Jack would welcome him aboard

ADDENDUM: Jack adds in the comments that “Mr. Rosenberg is not an at-will employee. He is a member of The Newspaper Guild and covered under the existing contract between the Northeast Ohio Newspaper Guild and The Plain Dealer. He can be fired only for just cause.”  the point is well taken, but, inasmuch as Mr. Rosenberg was not fired, I do not think it detracts from the central point of my analysis.  He still is employed as a journalist for the PD; the fact he is not covering the beat he covered for so long does not, as far as I can know, create for him any legal right to recovery.