On Friday, August 6, WCPN, the Cleveland NPR affiliate, broadcast a story (a transcript and link to the audio are here) about Donald Rosenberg’s losing lawsuit against the Plain Dealer and the Musical Arts Association. No new information, but a note from a Case Western Reserve University law school faculty member pointing out that the First Amendment protects journalists from government intrusion; the Rosenberg/PD/MAA case was a purely private matter, so the First Amendment did not apply.
In a not unsurprising conclusion given recent testimony in the case, on Friday a jury in Cleveland found that the Cleveland Plain Dealer had not discriminated against critic Donald Rosenberg by reassigning him away from reviewing the Cleveland Orchestra’s concerts, nor had the Musical Arts Association, the parent organization of the Cleveland Orchestra, defamed him by making complaints to the newspaper’s management about the alleged personal vendetta Rosenberg had (has?) against the orchestra’s music director Franz Welser-Möst. The Plain Dealer does not yet have its own reporting on the end of the four week trial (just an Associated Press report.) But the New York Times has a more extensive article, which quotes Rosenberg as saying,“We gave it our best shot. I stood up for what I believed. I don’t regret a moment of it.” Rosenberg declined to comment on any future plans he may have, although his attorney was making noises of a potential appeal. The Orchestra had no comment.
VFB will update this report with a PD link as it is available.
In one of the more bizarre twists of the lawsuit by Plain Dealer critic Donald Rosenberg against the newspaper and the Musical Arts Association, reported here, Common Pleas Judge John D. Sutula ruled that
reporter Don Rosenberg’s assertion that the newspaper had retaliated against him for filing a suit against the Cleveland Orchestra and the Plain Dealer should not go before a jury because there were “no material facts to dispute.”
He said that that Rosenberg’s attorney had not shown that there was any adverse effect by the editorial instruction that Rosenberg was not to use the words “Cleveland Orchestra” in his writings for the newspaper. The newspaper’s attorney, David Posner, said, “He was told ‘the reason you can’t refer to the Cleveland Orchestra is that you sued the Cleveland Orchestra.'”
The PD reported that on Monday, August 2, that the newspaper had rested its case in its defense. The newspaper’s editors all testified that Rosenberg’s age (remember that his suit is partially one of age discrimination) never came up in discussions of his reassignment. All were in agreement that the reassignment was a journalistic matter, not one of musical expertise, due to the widely held perception that Rosenberg held a personal vendetta against Cleveland Orchestra Music Director Franz Welser-Möst.
On Tuesday it is expected that the attorneys for Rosenberg, the Plain Dealer and the Musical Arts Association will make closing arguments before the case is turned over to the jury.
In the ongoing saga of Cleveland Plain Dealer music critic Donald Rosenberg’s discrimination lawsuit against the paper and the Cleveland Orchestra, during this week the plaintiff’s lawyers rested their case, and the defense began its case. The Plain Dealer reported on Rosenberg’s testimony. Among other tidbits, Rosenberg testified that he thought that Music Director Franz Welser-Möst would eventually have to be replaced. Also:
Rosenberg also agreed, again under questioning by [David] Posner [the Musical Arts Association attorney], that 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 Welser-Most.
When questioned by his own attorney, however, he testified that he believed [Plain Dealer Editor Susan] Goldberg had responded only to pressures from the Musical Arts Association — not other factors — when she reassigned him.
On Thursday this week the Orchestra began its defense, with expert testimony from a journalism faculty from University of California, Berkeley, specializing in ethics who found that Rosenberg’s reviews had taken a mindset of bias, from being too close to the orchestra that Rosenberg loved.
There was also testimony by Orchestra Executive Director Gary Hanson about the unflattering article that Rosenberg had written about Weser-Möst in 2004, quoting from an interview the conductor had given to a German language magazine without asking the conductor for comment. The orchestra’s expert stated that Rosenberg was at fault for not seeking comment.
The trial continues next week, with the newspaper presenting its defense. The jury is expected to get the case toward the end of next week.
Last week was a busy week in the courtroom for the age discrimination lawsuit by Plain Dealer critic Donald Rosenberg against the Plain Dealer and the Cleveland Orchestra. Susan Goldberg testified that her decision to reassign Rosenberg was not a “knee-jerk reaction”, but was carefully considered over fourteen months. In response to questions about an alleged personal vendetta on the part of Rosenberg against Franz Welser-Möst, Goldberg replied:
“Mr. Sindell, this is not a music problem, this is a journalism problem,” said Goldberg, who acknowledged that she did not have classical music training. “And I’m well qualified to make that decision, as are other editors in my office.”
Goldberg was asked by Sindell: “Why do you think my client had a personal vendetta against Franz Welser-Most?”
Goldberg answered that Rosenberg “had become just too wrapped up in the orchestra and did not have the professional distance that we ask everyone to have — whether covering baseball or architecture.”
She also told the jury that Rosenberg had begun approaching concerts conducted by Welser-Most with a closed mind.
“It would be like a restaurant reviewer deciding the steak is tough before he even goes to the restaurant,” Goldberg said. “He puts Welser-Most into a hole before a note is even played.”
An article published on the Plain Dealer web site on July 23, summarizes what has gone on, including the testimony by former Washington Post music critic Tim Page about Rosenberg’s national reputation as a music critic. The article also contains the rather sensational allegation of “reporter shopping” on the part of Cleveland Orchestra officials to get the Plain Dealer to send reporter Zachary Lewis (who was eventually assigned to review the Orchestra concerts after Rosenberg was deposed) to a news conference announcing coming season programs, instead of Rosenberg. Susan Goldberg characterizes the practice as “icky” and “sleazy” but “not uncommon.”
It appears that the trial will be winding down in the next week or so.
Things have been quiet for a long time in regard to the pending lawsuit by former Cleveland Orchestra music critic Donald Rosenberg against the orchestra and the Plain Dealer. The Cleveland Scene posted an update last week based on discovery depositions that have now been sealed by the judge in charge of the case. But it gives some fascinating insight into what’s been going on.
The web site of the Cleveland Jewish News has a recent update about the goings on of music critic Donald Rosenberg’s lawsuit against the Cleveland Orchestra. He has recently changed some of the details of his suit: when the defendents tried to move the suit to federal court, Rosenberg dropped some of the charges against the Plain Dealer and its editor Susan Goldberg. The charges of defamation against the orchestra remain unchanged.
There are some interesting comments from Sharona Hoffman, associate dean and law professor at Case Western Reserve University. (Full disclosure: I work for CWRU, and I have met Prof. Hoffman; however, I do not know her well.) She points out how difficult it will be for Rosenberg to prove age discrimination, and defamation could be proven if someone publicizes lies about him. “But he’s a public figure who puts himself out there as a critic. It’s much harder to prove that sort of thing if he’s in the public eye.”
I’ve been away on business for most of the last week, so haven’t been posting, or even keeping up much with the news, so I’m late to the game with the latest of the Donald Rosenberg/Cleveland Orchestra saga. You will remember that Rosenberg was the Cleveland Plain Dealer music critic who covered the Cleveland Orchestra for years. This Fall he was reassigned by the PD editor Susan Goldberg to general arts reporting, and the plum orchestra assignment was awarded to Zachary Lewis, a former intern. There has been general speculation that Rosenberg was reassigned because of his relentlessly negative writing about the performances of the orchestra’s music director, Franz Welser-Möst.
On December 11, both the Plain Dealer and Daniel Wakin in the New York Times reported that Rosenberg has now filed a lawsuit against the management of the Cleveland Orchestra, the Musical Arts Association (the orchestra’s parent organization), and the Plain Dealer for defamation, as well as age discrimination. He is asking at least $50,000 in punitive damages. He claims that the orchestra has a vendetta against him because of his reviews. It should be noted that Rosenberg is the author of the definitive history of the Cleveland Orchestra.
As one might expect, a lawyer for the orchestra made some comments in defense:
“It’s a funny grievance coming from a lifetime reporter, that the people that he writes about have an obligation to stay silent,” said Robert Duvin, a lawyer for the orchestra. “We don’t have the same platform, so what we have to do is write letters or have meetings. You guys get to publish every day, and bring the hammer down as often as you want to on anybody you want to.”
Mr. Duvin said he could not address the specifics of Mr. Rosenberg’s lawsuit. But assuming it were true that orchestra officials had urged his dismissal, he said, “So what?”
“I consider what he wrote to be the equivalent of urging the removal of the music director of the Cleveland Orchestra,” Mr. Duvin said. “There are many people who considered his relentless negative assessment, when contrasted with worldwide praise, to be personal, petty and vindictive.”
This seems, frankly, like quite a clever money grab on Rosenberg’s part: the $50K damages sought is a small enough amount that it will be cheaper for the PD and Orchestra to settle and shut him up, no matter how trivial the complaint, despite the fact that he would be unlikely to prevail in court. It is an employer’s prerogative to reassign an employee to new tasks for any reason, or no reason at all. In fact, in the current economic climate, one might speculate that a second music and arts critic at the Plain Dealer is lucky to still have any job. Rosenberg claims that his right of free speech has been curtailed. Not really–again, as an employee–especially as a critic–for the Plain Dealer, he is subject to whatever the editorial policies that the newspaper deems appropriate. He may think that he will embarrass the Orchestra, but, in fact, he only diminishes his own stature by this trivial and petty action.
There is also a feature story in the December 2008 Gramophone magazine, the U.K. music journal about the Rosernberg matter. (Sorry, it doesn’t seem to be available online.) The article has quite a balanced review of the events to date, and notes that the fact that the reviews by Zachary Lewis this season have also contained negative remarks, which leads one to believe that the PD editor did have other reasons for reassigning Rosenberg. It is ironic that it is the same issue that includes an article listing the Cleveland Orchestra among the top 20 orchestras in the world.
The New York Times on Thursday, September 25th, published an article by Daniel J. Wakin on the front page of its arts section about the Plain Dealer’s dismissal of Donald Rosenberg as the critic of the Cleveland Orchestra performances. Not much new ground is covered; there are quotes from Rosenberg himself, from Plain Dealer editor Sarah Goldberg (who declines to comment on an “internal personnel matter”), from Franz Wesler-Möst (“If the same person writes after six years that the orchestra plays beautifully and what I do is bad, somehow it misses logic.”) and from Gary Hanson, who reiterates most of what he said in the comment he left on this blog.
The Orchestra’s first concert of the season was last night. So far, no review on the PD web site. I’m going tonight.