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June 2001

June 2001
Publish Thyself!


Sumner Redstone comes off pretty well in his new memoir, A Passion to Win, due on bookshelves in June. And he should: Redstone rose from humble beginnings in Boston to graduate first in his class at the prestigious Boston Latin School, served his country during World War II in an elite cryptography unit devoted to breaking Japanese codes, graduated from Harvard Law School, fought crime as a special assistant to the U.S. attorney general, and then grew his family's tiny chain of drive-in theaters into the media and entertainment colossus that is Viacom, the corporate parent of CBS, MTV, Paramount Pictures, and the publishing house Simon & Schuster. Along the way, as he tells it, he freed at least four wrongly convicted men from prison, hung out with Bugsy Siegel, survived a hotel blaze by hanging out of a third-story window, earned a coveted spot on Richard Nixon's enemies list, and cocreated the Motion Picture Association of America's ratings system. A Passion to Win is just the latest entry in the annals of corporate self-hagiography, but the circumstances of its publication are unique: As chairman, CEO, and majority stockholder of Viacom, Redstone is the majority owner of Simon & Schuster, and Simon & Schuster is publishing his book. Such an arrangement appears to be unprecedented in the history of modern publishing, leaving Redstone open to the charge that he has essentially used the venerable publisher of Bob Woodward, Frank McCourt, and Stephen King as the world's largest vanity press.

Publishing A Passion to Win undoubtedly presented conundrums for the people at Simon & Schuster, the most obvious being: How does an editor tell his boss that opening chapter one with the line "Viacom is me" might come across as megalomaniacal? And then there is the matter of negotiating the contract: How do you haggle over an advance with the boss? Adam Rothberg, a spokesman for Simon & Schuster, says Redstone did sign a contract but there was no advance. Redstone will earn the standard royalty percentage and will be donating all of it to charity.

Redstone's contract raises some interesting issues for Simon & Schuster's legal team. In the publisher's standard author contract, writers "warrant and represent" that their work is not libelous and that "all statements...asserted as facts are true or are based upon reasonable research for accuracy." In return, a publisher will usually, after vetting the book for potentially libelous statements, agree to include the author on its libel insurance policy.

If Redstone is the ultimate owner of Simon & Schuster, doesn't that mean he essentially signed a contract with himself promising that the book is accurate? "That's a good question -- it's a hall of mirrors," says Rothberg, adding that there are "many degrees of separation between Sumner Redstone, author, and Simon & Schuster, publisher." Still, in vetting the book, Simon & Schuster's lawyers were in the uncomfortable position of going over their boss's story with an eye toward accuracy. Rothberg declines to comment on the specifics of the vetting process in this case, but one gets a sense of it from Redstone's comment to a Wall Street Journal reporter in April: "I would not have tolerated any interference with the book," he told the Journal. "It's my story."

But a little interference would have helped the book as far as accuracy goes. Take Redstone's story of how he freed a man from Alcatraz while serving as a law clerk for Judge William Orr on the Ninth Circuit Court of Appeals in 1947 and 1948. Redstone writes that he was swayed by the prisoner's appeal brief, which argued that he had been denied his right to counsel because he had been forced to share a defense lawyer with a codefendant who told a conflicting story. The case, Redstone writes, raised a "live legal issue" that "had not previously been acted upon" by a court, and he told his judge, "There's no question this guy gets out!" According to Redstone, the judge allowed him to write the first draft of his opinion. The episode was an important one for Redstone: "The law had set him free," he writes of the convict. "My faith in the law had never been stronger."

But the "live legal issue" that Redstone says the case raised -- that of two defendants with conflicting stories being forced to share a lawyer -- was resolved by the U.S. Supreme Court in Glasser v. United States back in 1942, five years before Redstone's clerkship. And a search of Judge Orr's opinions in the Ninth Circuit Court of Appeals law library during the time that Redstone clerked for him turns up no such opinion, so if Redstone wrote a draft, it was never published by the court. Simon & Schuster's Rothberg, who declines to name the inmate, says no final opinion was actually written because the prosecutor in the case didn't object to the prisoner's release.

That's not the only case wherein Redstone's faith in the law may have gotten the better of his memory. In 1954, while he was in private practice as a tax attorney, Redstone argued a case before the U.S. Supreme Court -- Holland v. United States -- representing two defendants who had been convicted of tax evasion. He won the case, he writes, establishing a precedent regarding the burden of proof in tax evasion cases that "had to be enforced." According to Redstone, three similar tax cases were before the Court during the session he argued his case. "Based on my petition for certiorari," he writes, "many people ultimately were released from prison, including these three."

The Court did in fact cite its Holland v. United States decision in three tax evasion cases during the session Redstone argued it. In each of the cases, however, it affirmed the prisoner's conviction. According to Rothberg, Redstone's recollection of those three cases was that "they were remanded to a court of appeals, and the people who were in jail were released pending the results of those hearings." That account doesn't jibe with the court record: None of the three cases was remanded. Still, Redstone's experience arguing before the Court made an impression on him: "I stood to speak and looked up at the bench. It was majestic," he writes, and goes on to name each of the nine justices before whom he argued, including Justice John Marshall Harlan. But Harlan wasn't there. According to Court records, he was sworn in five months after Redstone's case: Redstone argued before eight justices. Rothberg insists that it was nine, citing a legal database.

These could be considered minor quibbles, of course, and few books are perfect. But then again, A Passion to Win isn't just any book. As Rothberg puts it: "I don't think anyone needs a lot of incentive to try to publish the boss's book well."

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