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.