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Libel in Fact: The Trial Begins

Libel: The plaintiff speaks

The trial began four years after the Senator's landslide loss to President Lyndon Johnson in the 1964 Presidential election.

Senator's Goldwater's lawyer, Mr. Roger Robb, hoped to convince the jury that Mr. Goldwater had been inaccurately depicted by Fact, and that such misrepresentations of his client were reckless or even malicious. These are the legal standards a public figure such as Goldwater would need to meet to prove libel against him.

Mr. Robb's chosen strategy in the courtroom was to make sure the jury saw the Senator as a likable, level-headed, everyday fellow...

Mr. Robb began by calling the Senator's wife, Mrs. Peggy Goldwater, to the witness stand. It had been Mrs. Goldwater who, during the presidential campaign had told reporters her husband had had a nervous breakdown earlier in their marriage - a point that the articles in Fact had amplified and speculated about. During the trial, Peggy Goldwater qualified her "nervous breakdown" comment, stating that, "To me that means being thoroughly exhausted."

Mr. Robb asked if her husband ever had experienced any mental illness. "No, never," she replied. She further denied that he ever had seen a psychiatrist or obtained related medical treatment. The Times described her as cheerful and calm during an hour of testimony and cross-examination on the first day of the trial.

Under further questioning she described her husband as being close to his family.

The next day, Mr. Robb called Mr. Goldwater himself to the witness stand. When asked by Robb if he had ever seen a psychiatrist, Mr. Goldwater replied, "I never went to a psychiatrist in my life." To prove the point, Mr. Goldwater made both his military and private medical records available to the court.

Fact had implied that, if elected, Goldwater was sufficiently paranoid that he might end up isolated in a bunker, as had Adolph Hitler.

Mr. Robb worked against this image by detailing Mr. Goldwater's wartime service in a sympathetic and understandable way to the jurors. For a country with still-fresh memories of World War II, he described Mr. Goldwater's war experiences as both typical for a member of the US Air Corps and exemplary in how he carried out his responsibilities during his wartime service.

Perhaps Mr. Robb's most compelling depiction of the Senator, however, came as he read from letters sent by Mr. Goldwater to his young children during his service overseas in the Air Corps.

The letters often included drawings, and expressed fatherly caring to his children; the contents read aloud in court discussed the importance of following the golden rule, and meditated on the beauties of nature.

The Times quoted from two letters in particular. In one, Goldwater had written: "It's the person who doesn't pray and doesn't believe in God who lives a sad and lonely life." In the other, regarding Adolph Hitler, Goldwater wrote to his children, "He is one of the bad snakes God put on earth, a bad mistake God made once. He doesn't make many, but when He does, they are loo loos."

Through such tactics, Mr. Robb, created a warm and sympathetic picture of Goldwater that was surely discordant with the idea of Mr. Goldwater isolated in a bunker, as Fact had suggested.

Mr. Goldwater cooperated by remaining calm and collected throughout hearing, even as material from Fact highly critical of his character was read aloud in the court and discussed. Mr. Goldwater's calmness, in turn, undermined the characterizations in the Fact article, for example, of the Senator as exhibiting poor self-control.

Beyond all that, psychologists used to speak of a "halo" effect as a tendency of people to judge others who they didn't know well as all-good. (There also are negative halo effects for all-bad impressions). Fact had established a detailed, negative picture of Senator Goldwater. Mr. Robb's counter-image introduced a positive halo.

Although the jurors couldn't be sure if Mr. Robb's depiction of the Senator was any more accurate than Fact magazine's, Robb's introduction of such a radically different image of Mr. Goldwater, backed up by the presence of the man himself, at least forced the jury (and us, as historical spectators), to remember that a very negative description of someone often is not a complete picture of who that individual is.

Personality is complex and its description must rise to the occasion.

Mr. Robb's lesson in that regard -- that a quite positive narrative of Senator Goldwater could be constructed at apparent odds with Fact's negative narrative -- must have been hard to miss in the courtroom.

More on the trial next week...


"No, never..." Burks, E. C. (1968, May 7). Goldwater never mentally ill, wife testifies at libel trial. New York Times, p. 21.

"To me that means being... " from Burks, E. C. (1968, May 8). Goldwater, testifying in libel suit, says he never saw a psychiatrist. New York Times, p. 28.
Burks, E. C. (1968, May 9). Goldwater seeks libel precedent. New York Times, p. 35.

"It's the person who doesn't pray..." "He is one of the bad snakes..." from Burks, E. C. (1968, May 10). Defense attacks calm Goldwater. New York Times, p. 15.

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Copyright © 2009 by John D. Mayer