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Libel In Fact: Closing Arguments

Setting the line for libel

Societies are more likely to thrive when their leaders are effective rather than ineffective.  Within a given society, therefore, the public's ability and willingness to evaluate the personality and other qualities of its leaders may be crucial to the group's well-being. On the one hand, this means encouraging discourse about leaders' personalities; on the other hand, societies also make it their business to constrain the people's judgments of their leaders, to prevent the critiques from becoming too harsh or inaccurate.

This conflict between promoting accurate judgment about leaders and maintaining social control over false and malicious speech was a key part of the closing arguments of the Fact magazine libel trial of 1968 (see here).

The 1968 trial came about after Ralph Ginzburg, the publisher of Fact, printed an issue of the magazine shortly before the 1964 US Presidential election.  That issue of Fact characterized Senator Goldwater, who was then running for president on the Republican ticket, as paranoid and unpredictably aggressive.  After the election, the Senator sued Mr. Ginzburg for libel.

The three-week trial attracted national attention. Those assembled in the New York courtroom saw and heard from a former presidential candidate (Senator Goldwater), a rising star of the publishing world (Mr. Ginzburg), a member of the first family of American polling (Mr. Burns Roper), and countless others.

These celebrity witnesses testified as to the veracity of Fact magazine's analysis of Senator Goldwater's personality, and as to whether the Senator had been libeled.

Libel involves the printing of false, defamatory statements about an individual. "Defamatory" refers to explicit or implied information that casts an individual in a negative light. Libel law especially constrains false comments about a person's criminality, deviant sexuality, or poor professional conduct: that is, comments that could cause the person social and/or economic harm.

On May 27th, 1968, the day of the trial's closing arguments, the litigant and defendant sat only six feet apart in the paneled courtroom where the trial was held. The New York Times described Mr. Goldwater as a 59-year-old "lean, tan, six-footer," and the 38-year-old defendant, Mr. Ginzburg as "stocky and radiating self-confidence."

On the side of prudence in speech was Mr. Robb, the attorney for Mr. Goldwater. He characterized the articles describing his client as "scurrilous, vicious, slanderous attacks," and asked the jury to consider "How much is a man's reputation worth?" He closed his argument by asking the jury:

"You must say to Mr. Ginzburg: ‘You've gone too far with throwing mud and garbage. You've gone into the gutter. We're drawing a line against this sort of muck-throwing and you're on the wrong side, and you're going to pay for it.'"

On the side of free speech was Mr. Steinberg, the attorney for Mr. Ginzburg. He compared the case to "a book burning suit." Mr. Steinberg argued this was a political trial aimed at suppressing political speech and opinion -- a clear and dangerous interference with free speech rights. As Mr. Steinberg put it:

"If a man who runs for office doesn't want to subject himself to a kind of search and scrutiny, then we don't want him to run."

No one denied that Mr. Ginzburg's articles were harsh in their judgments -- but were they true? Truth is a powerful defense against libel charges. In libel law, negative assessments that are nonetheless true are considered lawful.

When the truth is at stake, one must go out and find corroborating or disconfirming facts. To do so often requires a trial and the investigations that go along with it. The two sides' legal teams had fact-checked and uncovered information that no mere reader of the Fact articles could have known (for example, see here or here).

"We plead truth!" Mr. Steinberg proclaimed at the trial's beginning, but had Ginzburg written the truth about the Senator?

Mr. Ginzburg had phrased his take-home messages in a literary fashion, eliciting striking images and engaging in sweeping rhetoric.  Concluding his article with a compilation of quotes from the Senator concerning the near-certainty of nuclear war over the next few years, Mr. Ginzburg wrote:

In the context of Barry Goldwater's personality...[his thoughts on nuclear war are] not a call for an impossible victory...[but]...a fantasy of a final conflagration, the twilight of the gods, in which he -- and the whole hostile world -- will heroically play out the last act of the Human Drama.

From Mr. Goldwater's public statements and (alleged) personal thoughts, Mr. Ginzburg had evoked what Goldwater might do as President.  This can be done fairly, I believe, but assessments and predictions are best phrased as probabilities.  Mr. Ginzburg's exposition was more focused on the evocative poetry of a frightening future.  Scant attention was paid as to how likely his predictions were to be true.

Where society sets the limit for libel is an important matter. If libel is too frequently invoked in regard to public figures, it can have a chilling effect on our capacity to discuss and understand our leaders.  If applied not at all, however, people may take so many liberties with the truth that public discourse can break down.

Next week: Instructions to the jury.

Notes

Burks, E. C. (1968, May 24th). Ginzburg accused of tossing ‘muck'. The New York Times, p. 94.
http://www.theindependentpublisher.com/run/legal/libel.shtml#works_cited

Conflagration quote from p. 22 of Ginzburg, R. (1964, September/October).  Goldwater: The man and the menace.  Fact, pp. 3-22.

Ron Rosenbaum (2009, May 8th).  The new nuke pornSlate. (The Spectator: Scrutinizing Culture).

Copyright © 2010 John D. Mayer

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