Best-Seller Listing Is Issue in Lawsuit by Author

The attorney for an author whose book was not included in the New York Times’ coveted best-seller list asked the state Supreme Court on Tuesday to allow the writer to proceed with an unusual damage suit against the newspaper.

The justices were urged to uphold an appellate decision that gave a legal green light to a suit brought by author William Peter Blatty, who contended the newspaper wrongfully cost him millions of dollars in prospective income by intentionally omitting “Legion”--a sequel to “The Exorcist”--from the list in the summer of 1983.

“The Times has such a life-and-death power over books it ought to . . . do it honestly,” Blatty’s lawyer, Richard M. Coleman, said in oral arguments before the court in Los Angeles.

But an attorney for the paper, Richard P. Levy, urged that the court order the suit be dismissed, saying the press should have wide latitude to publish best-seller lists and other information it considers news without fear of being sued.

“There is such a thing in this country and in this state as the First Amendment,” Levy said. “Editors are entitled to edit and the New York Times is entitled to have its own best-seller list.”

The suit was filed after the book was not included in the Times’ weekly list of best-sellers, which the paper says is based on computer-processed sales figures from 2,000 bookstores across the nation.

Blatty contended that his book had sold more than enough copies to warrant a listing and that the Times had failed to make the objective and accurate assessment of sales it claimed it did. “Legion” had made other such lists, including that published by the Los Angeles Times, he noted. Later, after the lawsuit was filed, the book made 15th on the New York Times list for one week.

The suit did not allege defamation, as do many legal actions brought against news publications by persons claiming they have been injured by something in print. Instead, it charged among other things that the Times had interfered with Blatty’s “prospective business advantage,” depriving him of income from lost sales, lucrative paperback and movie rights and other financial rewards that ordinarily flow from making the paper’s prestigious list.

A Los Angeles Superior Court dismissed the suit but the state Court of Appeal in Los Angeles reinstated it last December, saying Blatty was entitled to go to trial to try to prove the paper falsely represented the list as accurate and unbiased when it was not.

The Times brought the case to the state Supreme Court, saying the appellate ruling could open the door to widespread legal claims by persons contending that a news article--even though not defamatory--had cost them some kind of “prospective advantage.” Blatty’s complaint was not that the Times said anything negative about his book but that it said something positive about other books, the newspaper said. If his suit is upheld, the paper warned, a news publication could find itself defending a lawsuit whenever it endorses a political candidate without mentioning his opponent or refers to a business favorably without mentioning its competitor.

Lively Exchanges

Tuesday’s hearing contained lively exchanges between the justices and lawyers in the case, with Chief Justice Rose Elizabeth Bird, in particular, closely questioning Blatty’s lawyer.

Bird, a controversial figure facing strong opposition to her confirmation on the November ballot, at one point jocularly said to attorney Coleman: “I read an awful lot of fiction about this court. Does that mean we can all go out and sue? We’d be wealthy.” More seriously, Bird asked the author’s attorney if he believed the suit could have a “chilling effect” on freedom of the press?

“I do not,” replied Coleman. “A calculated falsehood does not further the First Amendment.”

Levy, representing the Times, stressed that the paper was not seeking a “business advantage” in publishing the best-seller list but instead was publishing a “statement of news,” intended to inform readers.

The list necessarily omits not only authors like Blatty but countless others whose books are relatively successful but, under the paper’s calculations, do not merit a listing. “There is not any ill will or any intent to take advantage of Mr. Blatty,” Levy said.

After the hearing, Coleman was asked why the Times would want to intentionally exclude Blatty’s book if it warranted a listing. He replied that he did not want to discuss “motivation” at this point in the case.

The arguments were conducted at Southwestern University Law School to help commemorate the institution’s 75th anniversary. The court will issue a ruling in the case later.