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Libel in Fact Magazine: The United States Court of Appeals

A case summary from the US Court of Appeals

"A Special Issue on the Mind of Barry Goldwater," was how the September-October 1964 issue of Fact magazine was advertised. The first of two articles on Senator Goldwater's character provided an exegesis of Goldwater's state of mind; the second article, a poll of psychiatrists as to the Senator's psychiatric health. The outlook on the Senator's mental health, according to the magazine, was not so good. If Senator Goldwater were to win his 1964 presidential bid for president, the articles suggesed, he would be likely to enter the nation into nuclear war (see here for a summary). 

Senator Goldwater successfully sued Fact's publisher, Mr. Ralph Ginzburg, for libel. The Senator's legal complaint charged that Fact contained numerous "false, scandalous and defamatory statements referring to and concerning plaintiff." Select examples quoted by the Court included these:

  • "Goldwater's proneness to engage in public name-calling fits into the mold of a paranoiac who tends to see issues in terms of people..."
  • (Regarding Senator Goldwater:) "On the free-for-all stage of American politics all his aggressions, hostility, all his fears and delusions of persecution, all his infantile fantasies of revenge and dreams of total annihilation of his adversaries found a perfect platform."
  • "It is his paranoid divorce from reality that is the most dangerous facet of Goldwater's personality" (Fact p. 22) [above three quotes from para. 23-27].

The original trial had extended over 15 days. It including testimony from Mr. Goldwater and his wife, from Mr. Ginzburg, the publisher of Fact, and his managing editor Warren Boroson, and a polling expert besides, as well as (in pretrial depositions) some of the psychiatrists who had responded to Fact's poll.

Mr. Ginzburg's lawyers brought the decision before the United States Court of Appeals for the Second Circuit, and the Court of Appeals issued its decision on July 18th of 1969.

The Appeals Court considered evidence that might argue for recklessness and malice necessary to prove libel against a public figure. Along those lines, the Appeals Court singled out the following as particularly plausible evidence for recklessness and malice:

  • that the defendants had made up their minds early on that something was wrong with Senator Goldwater [para. 10-11], that they had selectively recorded [para. 13] only material consistent with their early thesis that the Senator was "belligerent, suspicious, hot-tempered, and rigid" because of "deep-seated doubts about his masculinity" [para. 11].
  • The Court noted that the publisher and editor, who were untrained in polling, conducted a survey of psychiatrists, and that the cover letter accompanying the poll would bias any respondents against the Senator -- with evidence that was insufficiently documented [para. 17-20, 43].
  • Letters from psychiatrists were misrepresented as "professional opinions" in all cases, whereas some were political opinions. In some cases, the letters were edited without alerting readers of Fact abou the alterations.
  • The Court noted that materials from Fact's characterization of Goldwater, including, Mr Ginzburg's contention that Mr. Goldwater employed armed guards for the first time in American history to protect him, were exaggerated half-truths (my words), and that, in reference to the armed guards, Mr. Ginzburg was unable to recall or otherwise reference the specific identities of individuals who had described the situation to him [para. 33-35].

These summaries from the Court of Appeals indicate in part the evidence that experienced judges evaluated as most pertinent to the charge of libel.

The appeal processes provided a good summary of the trial evidence, but was the original decision fair?  From the United States Court of Appeals, the case traveled onward to the Supreme Court.

Next post...March 22nd...


The characterization of the Appeal Court's decision (with paragraphs indicated for quotes) are from: 414 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

Copyright © 2010 John D. Mayer