A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland Orchestra

Tim Smith, with whom I participated in a twitter chat 2 nights ago, expressed there and on his blog yesterday, the kind of thinking about the conflict between Donald Rosenberg, the Plain Dealer, and the Cleveland Orchestra that represents a problem and dispute resolving attitude that, I think, the best lawyers embody. There’s no question Rosenberg was no fan of Franz Welser-Möst, the Orchestra’s conductor. There’s no question his views on Welser-Möst were shared by many (though by no means all). There’s no question the repeated expression of those views irritated the Orchestra. So, what should have happened? Perhaps the Plain Dealer could have split up the reviews of the Orchestra between Rosenberg and another reviewer. Perhaps they could have published “dueling” reviews.

In short, there were things the Plain Dealer could have done to address the problems they perceived short of the ham-handed way they did handle it. Indeed, it may have been a better idea to have reassigned Rosenberg years earlier, at the point the Orchestra replaced Christoph von Dohnányi, whom Rosenberg was a fan and friend of, with Welser-Möst.

Let that be a lesson. Anticipate and address problems, and address them creatively, not in blunt fashion that exploits nothing more than your clients power.

That’s not to say, as should be clear from all I’ve written on this affair, that I think Rosenberg did a wise thing in suing in response to the Plain Dealer’s ham-handed way of dealing with the problem. As I’ve said from the beginning, it was very unlikely that Rosenberg would prevail on any claim in his lawsuit. Nor was it a situation the defendants were likely to settle in order to resolve what little legal uncertainty did exist for them. The Plain Dealer and Cleveland Orchestra’s biggest problem resulting from the lawsuit wasn’t any potential damages they might have to pay, no matter how unlikely — rather, the biggest problem was the hit Rosenberg’s claims had on their reputations. His claims resonated in the larger world. At times he seemed almost like a martyr to the cause of critical integrity. And, indeed, the problems caused by our corporate media’s corruption by the subjects they cover is a huge one (though I happen to think Rosenberg’s situation is a rather minor instance of it, if it even is an instance of it).

If the Plain Dealer and the Orchestra had settled the lawsuit, the perception would have been that they had conceded on the issue of undue influence by the Orchestra over the newspaper. Since the perception of that influence was their biggest problem vis-a-vis Rosenberg, they could ill afford to settle. Settlement was even less attractive since their legal position was so strong. So this lawsuit was not going to settle. And in all likelihood — a very strong likelihood that I would never deem a certainty only because law doesn’t permit certainty any more than does, say, medicine — Rosenberg was going to lose (as I’ve said from the very beginning).

And what did Rosenberg have to gain by suing and losing? I don’t think he gained anything. If anything, having had a jury declare his claims without merit, he seems less compelling a figure than he did before the trial. There’s the virtual certainty the lawsuit cost him quite a bit of money. And lawsuits are not fun for litigants.

Some suggest that the mere fact of discovery in the lawsuit made it a worthwhile endeavor. But what did we learn as a result of the evidence compelled by the lawsuit? That the Orchestra didn’t like Rosenberg’s repeated negativity, and that the Orchestra wasn’t alone.  That the Orchestra expressed these views to the Plain Dealer. Unlike Tim Smith, I see nothing noteworthy in Anne Midgette’s belief that the trial disclosed something new about the Orchestra’s role in Rosenberg’s reassignment. One would have to be particularly naive to believe that the Orchestra would not express its disagreement to the Plain Dealer with Rosenberg’s repeated negative views regarding Welser-Möst. Finally, we also learned, as we would have known with a second’s thought before the lawsuit, that the Plain Dealer’s editors know less about music than Rosenberg.

We knew all these things already. So the lawsuit did nothing but hurt Rosenberg, cost the defendants and taxpayers money, and generate a lot of material for a few writers.

One final word: I do not mean to say Donald Rosenberg had no right to file the lawsuit. He had every right, and assuming he knew that he was very likely to lose, I would even have been happy to represent him. I would have been clear to him, however, that I did not see the benefit he was deriving from it. There’s no question I would have derived a lot of benefit from it. He would have paid me, and it would have been a fun and interesting lawsuit to be part of.

Tweet chat at 9pm tonight on Donald Rosenberg v. PD and Cleveland Orchestra

Janice Harayda has arranged and agreed to moderate a twitter chat on the Donald Rosenberg lawsuit against the Plain Dealer and the Cleveland Orchestra tonight at 9 p.m. EDT. I will be fortunate enough to be participating with Tim Smith, the classical music critic for the Baltimore Sun. The hashtag for the chat will be #DonR.

Addendum: Rosenberg’s claims against the Plain Dealer are grounded in an article he wrote for the newspaper on August 25, 2004, an article which, he claimed, provoked a concerted campaign on behalf of the Cleveland Orchestra to have the Plain Dealer assign someone else to review their concerts. Four years later, in 2008, the Plain Dealer reassigned him. For informational purposes, the relevant portions of the 2004 article are set forth below:

Welser-Möst speaks out

Some of Welser-Möst’s comments in current Swiss magazines have raised eyebrows.

In Weltwoche, under the headline, “Many Rich Widows,” he discusses private funding for culture in the United States, deeming it necessary to find “rich widows” and that “charm certainly is no disadvantage when you want the ladies to understand you well.”

Welser-Möst refers to the Friday-matinee audiences in Cleveland that are filled with “ ‘Blue Hair Ladies’ because of the coloring of their hair” and states that these “so-called ‘Blue Hair Audiences’ ” largely comprise retirees who are too tired to attend performances at night.

Asked what the ladies must donate to meet Welser-Möst personally, he answers: “For $500, you don’t get a handshake from the music director.”

And for $5,000? “No, it has to be a little more than that. A few years ago, an enthusiastic middle-age fan, in this case a man, moved a check across the table for $10 million. With such a person, of course, you go to dinner.”

How do you like Cleveland? “Cleveland is an island. Here we have a world-class orchestra in what I call an inflated farmer’s village. For me, who loves the country, it is wonderful to live there among the green. Recently in the street in front of my home, I found a huge turtle. It had not escaped from the zoo. It was just walking in the street.”

Why I didn’t like Donald Rosenberg’s lawsuit against the Plain Dealer and Cleveland Orchestra.

I want to expand a bit on why I don’t believe a lawsuit of the sort Donald Rosenberg brought is a useful way of enforcing journalistic integrity. My opinion, of course, is grounded in the belief I’ve had since I first heard of the lawsuit that there was little if any legal merit in it.

First, our legal system is intended to remedy individual harm. It does so by limiting the power of courts to decide individual cases brought be people with a genuine stake in the controversies they sue over. Courts do not have the power to decide hypothetical questions. They do not have the power to decide concrete questions if they parties who sue aren’t the parties who have actually suffered direct harm resulting from the alleged wrong. And our legal system is overwhelmed. People wait years for justice in cases where the harm is serious and direct. To allow lawsuits to proceed merely because they involve behavior we don’t like, therefore, is to do plenty of harm.

Some have suggested that, regardless of the merits of Rosenberg’s lawsuit, the discovery forced by the litigation serves a useful function in disclosing information about behavior they didn’t like. Discovery is a powerful mechanism for forcing people to disclose information. And so it is a dangerous game. When you seek discovery, discovery is sought from you as well, and it’s tough to put a limit on things. So, if you sue, be ready to open up your own life to the public. And if you are sued, don’t believe for a minute that you won’t have to open up your life.  Litigation is a dangerous game.

Paradoxically, while discovery discloses a lot, we should understand too that it doesn’t disclose everything. Parties to a lawsuit seek discovery about the matters they care about and deem it worth their while and their money to go after. They disclose to the court and the public only portions of the information they seek and obtain. So what the public actually receives is never the entire picture. It is as selected, shaped, and manipulated as is any other set of facts.

It’s plain that those rooting for Rosenberg in his lawsuit were convinced of the soundness of his critical writings regarding the Cleveland Orchestra. But I’m not exactly sure whether they want courts and juries to start engaging in the kind of aesthetic and critical evaluation that would be required to distinguish Rosenberg’s legal claims from those brought by some hack they would consider the Cleveland Orchestra to be entirely right to complain about. To do so would require the court to determine which reviews the Orchestra had a legitimate beef about and which reviews the Orchestra did not have a legitimate beef about. I can’t believe that anyone would be happy with that going on.

And the only other answer to that problem would be to forbid the Cleveland Orchestra or any other journalistic subject to opine about the quality of the coverage afforded them. Besides the obvious First Amendment problems, that alternative is plainly unworkable.

Has the Plain Dealer’s credibility been damaged? I think so, though to be honest I’m not sure that Rosenberg’s lawsuit caused that damage. Rather, the decision to reassign Rosenberg and the ensuing hue and cry from the musical and critical worlds did that. If anything, I suspect that having lost the lawsuit, Rosenberg may have revived some of the Plain Dealer’s lost reputation.

Finally, I hate the fact that Rosenberg likely paid good money for what plainly to me seemed a losing set of claims. And if, as I hope, his lawyer was representing him on a contingency basis, I’d be pretty pissed off if I were his lawyer’s partner or employee.

Addendum: I’ve been asked why, given that Rosenberg’s age discrimination arises under Title VII, which is federal law, the case was heard in state court. Federal courts do not have exclusive “jurisdiction” (that is, judicial power) over Title VII claims. State courts are courts of “general jurisdiction” and therefore can exercise judicial power over any claims, though Congress can restrict jurisdiction over federal claims to federal courts. In 1990, the Supreme Court ruled that Congress had not done so (explicitly or implicitly) in Title VII.

Jury rules against Donald Rosenberg

A jury found for the Plain Dealer and the Cleveland Orchestra’s governing body yesterday, rejecting all of reporter Donald Rosenberg’s legal claims arising out of the decision by the Plain Dealer to relieve him of his duties as the Orchestra’s reviewer and reassign him.

As anyone who has followed my speculations on this lawsuit knows, I have always been skeptical of the legal merits of Rosenberg’s claims. As the NY Times article linked to above explains, the lawsuit “became a cause célèbre among music critics, who charged that The Plain Dealer had caved in to complaints from a subject of its reviews, touching a raw nerve among those who review arts for a living.”

Nevertheless, I could not discern any contractual right Rosenberg had to the job reviewing the Orchestra, so the reassignment didn’t seem to constitute any breach of contract. The Orchestra’s representatives have every right to complain about negative reviews to the Plain Dealer’s management as long as they didn’t lie about him in expressing those complaints. And the addition of an age discrimination claim simply didn’t fit the gist of the complaint — how could it be that the Plain Dealer’s reassignment of Rosenberg under pressure from the Orchestra constituted age discrimination?

If I were Rosenberg’s lawyer, I’d advise him not to appeal. The Los Angeles Times reports, however, that he hasn’t ruled out that possibility. It’s not that I don’t care if the Plain Dealer did cave into pressure from the Orchestra (certainly not the only quarter from which complaints about Rosenberg were heard). It’s that I don’t think a lawsuit by an individual who is reassigned as a result of that kind of pressure is the means of ensuring journalistic integrity.

Judge dismisses one of Donald Rosenberg’s claims against the Plain Dealer.

As the Plain Dealer reports, on Friday, the judge in Donald Rosenberg’s lawsuit against the Plain Dealer and the Musical Arts Association (the body that manages the Cleveland Orchestra) dismissed one of two of Rosenberg’s claims against the Plain Dealer — the claim that the Plain Dealer had unlawfully retaliated against Rosenberg in forbidding him to use the words “Cleveland Orchestra” in his reporting after he had filed his lawsuit. The judge granted what is called a “directed verdict” on the claim even before the Plain Dealer has presented its evidence to the jury, deciding that either the facts are undisputed and do not establish Rosenberg’s legal right to recover or that even assuming the facts are as Rosenberg contends they are he is not entitled to recover.

In order to recover on a retaliation claim, an employee must show that in response to a discrimination claim the employer made changes in the terms of employment that “might have dissuaded a reasonable worker from making or supporting” the claim. It doesn’t seem particularly controversial that the judge decided that forbidding Rosenberg from referring to one of the parties he was suing would have dissuaded him from filing the lawsuit or that the Plain Dealer intended to punish him for filing the lawsuit. The Plain Dealer argued, in fact, that the restriction was intended to protect against any claim that Rosenberg had a conflict of interest. Rosenberg, on the other hand, argued that the restriction “effectively limited his reporting about other fine arts matters in Northeast Ohio because so many of them could also involve Cleveland Orchestra players.”

My access to the case thus far has largely been limited to what has been reported in the press, but it’s difficult for me to imagine the inability to identify someone as a member of the Orchestra constituted any real restriction on Rosenberg’s reporting. It’s much easier for me to imagine that argument is a lawyer’s effort to support a very weak claim.

Donald Rosenberg v. Plain Dealer & Cleveland Orchestra, continued

The Plain Dealer reports that attorneys for Donald Rosenberg completed the presentation of their evidence to the jury in Rosenberg’s lawsuit against the Plain Dealer and the Musical Arts Association, the governing body of the Cleveland Orchestra. I expressed a lot of my views on what I perceive to be the weaknesses of Rosenberg’s case a couple of weeks ago. What I have read so far has not changed my opinion.

First, it is important to note that Rosenberg is not claiming that the Plain Dealer was in breach of contract when it reassigned him to a different  beat after his many years of writing reviews of the Orchestra. His only legal claim against the newspaper is that the reassignment constituted age discrimination. As I wrote previously, that’s an odd claim, since the entire thrust of the case is that the reassignment was wrongful because it was done at the Orchestra’s behest. Reassignment under pressure of someone who doesn’t like what’s being written doesn’t sound like age discrimination to me. And he testified that he never mentioned age discrimination at the time of the reassignment. According to the Plain Dealer story, he thought it was “onerous and unusual” that the person doing the reassigning had told him he’d covered the Orchestra for a long time. I guess he’s claiming the Plain Dealer reassigned him because the beat had become too burdensome after his many years, but I cannot imagine that the physical and mental burden of covering the Orchestra formed any part of the Plain Dealer’s thinking in reassigning a 57 year old guy to a different beat.

It’s also not clear at all what legal damages Rosenberg suffered. He testified that he had not lost pay or benefits under his reassignment in 2008. He had no legal right to the position reviewing the Orchestra, and try as he might to establish that his critical reputation has suffered, he by all appearances seems to have skyrocketed in reputation in the music community, which sees him as a martyr on the altar of critical integrity.

It’s funny: the music community never seemed to be particularly concerned with Rosenberg’s critical integrity during his years covering the Orchestra under the direction of Christoph von Dohnányi despite his close friendship with von Dohnányi.

Rosenberg’s claims against the Musical Arts Association are in the nature of defamation claims. The problem is that unless he can establish that someone affiliated with the Orchestra lied about him, there doesn’t seem much there there. There’s nothing illicit about someone who’s being reviewed complaining about the review. Nor is there anything illicit in the employer of the reviewer listening to and even responding to those complaints. And it’s not as if there haven’t been complaints about Rosenberg. Rosenberg admitted on the stand that, in the Plain Dealer’s words, “others — including newspaper readers, members of the orchestra and others in the community — had complained about what was perceived as a pervasive negative tenor to his reviews of [Franz] Welser-Most [the Orchestra's conductor and von Dohnányi's succesaor] .”

Don’t get me wrong. I’m not thrilled with the idea of newspapers shaping their coverage to please the subjects. I just don’t see the newspapers employees having any legal right to ensure that the newspapers don’t do so. Nor is the Plain Dealer’s alleged favoritism of its subject in this instance, even if true, one of the more glaring instances of this aspect of journalism. There’s no First Amendment requirement that the media be objective.

Now that Rosenberg’s lawyers have called all of their own witnesses, the Plain Dealer and the Musical Arts Association will have an opportunity to call their own. Then the lawyers will give closing arguments, the judge will instruct the jury in the law applicable to the evidence, and the jury will deliberate. At several steps on the way, as well, the judge could conceivably stop the trial and rule in favor of the defendants if the judge decides no reasonable jury could find that Rosenberg can recover on his legal claims.

Stay tuned.

Donald Rosenberg’s lawsuit against the Cleveland Orchestra goes to trial, but stupidity is not an actionable offense.

Back in 2008 I wrote about Donald Rosenberg’s lawsuit against the Plain Dealer, the Cleveland Orchestra, its conductor Franz Welser-Möst, and members of both organizations. Rosenberg alleges that the defendants engaged in a conspiracy to remove him as the Plain Dealer’s music critic. As the Plain Dealer reports, the trial of Rosenberg’s claims began this week. Apparently, Rosenberg has amended his complaint since he originally filed the lawsuit to add an age discrimination claim:

Rosenberg’s complaint against the newspaper is that his reassignment was an act of age discrimination and that the paper retaliated against him for filing the lawsuit by preventing him from even mentioning the orchestra in the course of his reporting.

My guess is that the age discrimination claim against the newspaper was added because there was no breach of contract that resulted from the newspaper’s reassignment of Rosenberg to a different beat. He might not have liked it, and, indeed, the move might have been monumentally stupid, but there is no legal right to recover damages for being treated stupidly. I really don’t see the connection, though, between the age discrimination claim and what Rosenberg alleges the newspaper did wrong in caving to pressure from the Cleveland Orchestra, which did not like Rosenberg’s scathing reviews of the orchestra under Welser-Möst’s direction. If they reassigned him because of the complaints, how does that constitute a reassignment based on Rosenberg’s age (57)?

As to the claims against Welser-Möst, the Cleveland Orchestra, and other Orchestra employees, I will assume that Rosenberg’s lawyer is telling the truth when he explained to the jury in his opening statement that the Orchestra “had waged a campaign to get Rosenberg removed from the orchestra beat, that the Plain Dealer “caved into that pressure,” and that the “case about powerful and influential people in the community trying to manipulate the news.”

Which confirms that — in the words of Baltimore Sun classical music critic Tim Smith, as reported in the Cleveland Scene — the Plain Dealer and the Cleveland Orchestra look “ridiculous” in their ham-handed efforts to influence the public’s opinion of the Orchestra:

“It looks ridiculous,” [Smith] says of the fracas. “You wouldn’t dream of doing this to your political commentator because he attacks the mayor week in and week out, or your local sports team. Who hasn’t been in a town with a sports columnist who is constantly knocking the hell out of the coach of the football team? And who then would take him off that beat?”

As Smith wrote in 2008, both the Plain Dealer and the Orchestra have had their credibility irrevocably damaged:

In the end, it may not matter too much who led the charge, who exerted influence, who gave in to pressure or doubt. The damage has been done. Zach Lewis, who has been told he will now cover the Cleveland Orchestra for the paper, is a good guy and good writer placed in an impossible situation. If he says positive things about Welser-Most, some people will think he’s just doing that to keep his job. If he says negative things, some people will think he’s under Don’s influence and will have to be replaced, too. As I said before, the Cleveland Orchestra and the Plain Dealer are worse off, not better off, as a result of this controversy. Music and journalism have taken a painful hit.

But if you could sue someone for doing something monumentally stupid that damaged their credibility and that you didn’t like, Northeast Ohio would have filed a class action lawsuit last week against LeBron James. As I stated above, I don’t see what legal duty the Plain Dealer violated in reassigning Rosenberg. And as long as what the Orchestra’s employees said about Rosenberg was truthful or a matter of opinion, there is no legal claim against them either. As the Orchestra’s lawyer put it to the jury:

“Don Rosenberg had a mighty bully pulpit to print whatever he thought of Franz Welser-Most and [the defendants] were only using the pulpit available to them” by contacting newspaper editors to complain about Rosenberg’s coverage of the orchestra.

Finally, even if Rosenberg can establish that employees of the Orchestra lied about him, he needs to prove that he has suffered damages — that is, he must establish that he has suffered some loss that can be compensated with money. He hasn’t lost any income as a result of his reassignment by the Plain Dealer. And, indeed, his prominence as a music critic — should he wish to engage in music criticism in places other than the Plain Dealer — only seems to have been increased.

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.