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The Fact Libel Trial: Was the Verdict the Right One?
The Fact magazine libel trial: Consider the verdict
Posted March 21, 2010
In my last post, I recounted the jury's decision in the case of Goldwater v. Ginzburg. Now it is worth considering whether the jury's decision -- that Mr. Ginzburg had libeled Senator Goldwater -- was a correct one. In the 1964 pre-election issue of Fact magazine, Senator Goldwater (who was then running for US President) was labeled paranoid, aggressive, and unpredictable. Senator Goldwater sued Fact's publisher, Mr. Ginzburg, and won in court after a 15-day trial.
Mr. Ginzburg's attorney's brought the case before the Court of Appeals, Second Circuit, and last week, I provided some excerpts from the Appeals Court's findings.
There was widespread agreement that Mr. Ginzburg and his editor Mr. Boroson were highly critical of Senator Goldwater's personality. Mr. Ginzburg testified on the witness stand that if his negative critique had contributed to Senator Goldwater's defeat, then he was proud of that -- though he regretted hurting the Senator's feelings.
That said, were he and his editor, Warren Boroson reckless, malicious, or even untrue in their statements? I have some trouble deciding firmly that they were.
First, there might have been a mismatch in the legal capability of the two teams of attorneys as it pertained to this case. Mr. Ginzburg's attorney, Mr. Steinberg, was a noted legal power in New York City at the time, and no doubt his reputation was deserved. Yet Mr Steinberg possessed artistic sympathies and an artistic temperatment; these might have been of less value, in this case, than would have been a greater sensitivity to issues in the social sciences. I wondered whether he might have dropped the ball concerning certain questions of scientific methods that could have helped his client. As it was, Mr. Steinberg failed to gain as much traction as he might have against the opposing attorney, Mr. Robb, who was more experienced both with national political cases, and with cases involving the sciences (Mr. Robb earlier had led the Government's security-clearance case against Robert J. Oppenheimer).
Second, the judge instructed the jury not to consider as libelous anything in Fact magazine about Senator Goldwater that was plainly labeled as opinion. Only matters in the magazine stated as facts were to be evaluated. Although long passages in the articles were not explicitly labeled as editorial opinion, it is hard to regard the speculation in them as much more than opinion in many cases.
To me at least, the two articles in question end up being less convincing than they were sometimes entertaining in their outrageousness. The material was an early example of what today we call "infotainment," where the "'tainment" portion derives from the artistry and extremity of the criticisms, whether intended as such or not.
As I read the articles, their tone veers more than a few times into wishful thinking, sensationalism, avuncular caring, exaggeration, and bombast. This was true not only of Mr. Ginzburg's analysis of the Senator's personality, but of the psychiatrists' commentaries as well. So I wondered if much of the writing could be considered implicitly as opinion even if not clearly labeled as such.
The judge drew a line between facts, on the one hand, and opinion, on the other. There was, however, a third area that entered into the Fact coverage, and that was probability. The Fact articles were implicitly discussions of Senator Goldwater's possible character. The publisher, editor, and other writers were assessing possibilities -- possible diagnoses, possible forecasts as to what the Senator might do if elected, rather than statements of definite qualities. True, the editors never said they were prognosticating. They piled on as much certainty as possible that (for example) Senator Goldwater might start a nuclear war, but such piling on was clearly to make a point of what Senator Goldwater might be capable of. Underneath all of the evidence presented, it was clear that the Fact articles were conveying, at best, what might be, not what would be.
Surely the many disagreements among the psychiatrists as to Senator Goldwater's mental functioning had to raise issues of possibilities and probabilities as well.
I found myself unconvinced of a malicious intent on the part of those involved in the Fact magazine articles -- beyond the everyday malice frequently inherent in political discourse, at any rate. (Malice was not necessary to prove -- only recklessness). The Fact group exaggerated half-truths concerning the Senator's use of bodyguards, and possibly, his nervous breakdown. Yet, these seemed relatively minor in the feature length article the publisher, editor, and others developed. The editing of the letters in Fact magazine was careless and potentially reckless, to be sure. Mr. Ginzburg was untrained in polling and did fail to consult with experts in that regard, as the court noted. The Fact staff could have made a more strenuous effort to be fair and impartial, but that was not Mr. Ginzburg's style in any instance. Moreover, downplaying evidence contrary to one's opinion is a malady all of us are subject to.
What point did the Fact election issue of 1964 make best? That between Senator Goldwater and his electoral opponent for president, then-President Lyndon B. Johnson, it was Senator Goldwater who might have been a bit more likely to enter us into an international conflict. This was an opinion that much of the American public already held; the character analysis by Fact magazine, to the extent it was accurate, might have bolstered such a viewpoint for some.
Although the execution was sometimes sloppy and careless, and suffered from the limitations of approaches to character analysis of the time, the publisher's desire to "warn the American public," coupled with his ambition to devote an entire issue to the Senator's psychology seems to me to be a mitigating circumstance. Judgments of libel are supposed to take into account deadline pressures for publications, and the sheer mass of material prepared between July and September 1964 for the issue would certainly introduce some error.
Let Senator Goldwater -- and the American Psychiatric Association object -- if they would (and they did) to the coverage: that was their right and some objections were well-taken. But a libel case seems, to me, like overkill.
My reservations aside, I was not in the courtroom, did not sit through the 15 days of the trial, and could not watch first-hand what happened. The procedures followed by the court were reasonable; good practices appear to have been followed. Nor was I the target of Fact's opprobrium, and I am certain that few people could have withstood such commentary with equanimity.
There was a grey area here, to be sure. That said, the jury decided in favor of Fact magazine's culpability. The Court of Appeals, in turn, saw little reason to overturn the original court's decision, writing:
"After a full review of the lengthy record we do not find that error was committed by the experienced district judges below. We affirm their decisions, and we affirm the judgment entered upon the jury verdict."
This, however, was not the end of the matter. The case went next to the United States Supreme Court.
Notes
The "After a full review..." quote is from Paragraph 7 of: F.2d 324 Goldwater v. Ginzburg: United States Court of Appeals Second Circuit. Dockets 32804-32807. Argued April 15th, 1969; Decided July 18th, 1969. Accessed through: OpenJurist. Downloaded from http://openjurist.org/414/f2d/324/goldwater-v-ginzburg
2 hrs. + post: Line-edited for clarity.
Copyright © 2010 by John D. Mayer
