The Fact Magazine Libel Trial: Onto the Supreme Court

The Supreme Court mulls over the Fact Libel trial

Posted Mar 28, 2010

Was it legal for Ralph Ginzburg to criticize then-Senator Goldwater as he did in Fact magazine?  Mr. Ginzburg wrote in Fact of the Senator's character that on the "free-for-all stage" of American politics, Goldwater's:

"...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." 

Ginzburg's assessment of the Senator was quite negative.  Yet wasn't Mr. Ginzburg, as editor of Fact magazine, protected by laws ensuring freedom of the press?  Yes, but freedom of speech is constrained by libel laws.

The Goldwater v. Ginzburg libel suit arose during the 1964 presidential campaign, as Senator Goldwater ran for President on the Republican ticket. At the time, Fact magazine published an unfavorable critique of Senator Goldwater's personality, drawing on psychological concepts and including a survey of psychiatrists who often commented negatively on the presidential candidate's character. After Goldwater lost the election, he sued the Fact's publisher, Ralph Ginzburg, for libel, and won. The Court of Appeals, Second Circuit, upheld the conviction.

Ginzburg and his attorneys then appealed the case before the United States Supreme Court.  The Court declined to hear the case but Justice Black dissented and was joined by Justice Douglas. 

In their remarks on March 9th of 1970, Justice Black wrote, "...I firmly believe that the First Amendment guarantees to each person in the country the unconditional right to print what he pleases about public affairs." The justice went on to speak to the importance of insuring the "uninhibited, robust, and wide-open" public debate.

Black spoke specifically about analyses of a leader's personality:

"...The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President."

Mr. Ginzburg, who was responsible for much that was in the Fact essays on Mr. Goldwater, encouraged an over-the-top style which, when it was not frightening (or offending) readers, might have amused at least some of them. Justice Black appeared to fall among those who were amused, or, at least regarded Fact's "reckless disregard of the truth," as common and unexceptional.

Justice Black noted agreeably that there was no doubt the articles in Fact had been "prepared with a reckless disregard of the truth," but added that the articles were no different in their degree of recklessnesss from the way that "...many campaign articles unquestionably are." In other words, Mr. Ginzburg's journalistic transgressions were entirely unsurprising when compared to the general quality of US campaign reporting. 

Campaign-related journalism and analysis is often opinionated and takes liberties with the facts. But Justice Black said this was outweighed by the importance of allowing free speech, especially when a figure is a nominee for US President, who is already powerful and could potentially hold a nearly "unbounded power of good and evil."

The Justice concluded in his dissent: "I would grant certiorari" -- that is, grant a more complete review of the case -- "and reverse the Court of Appeals summarily."

The ability to conduct character analysis of our leaders seems crucial to me. Some such analyses, one hopes, are done well.  The point of free speech is to allow for judgments of all types including, when needed, discussion of how best to judge the character of others. 

Unlike Justices Black and Douglas, the rest of the Supreme Court was satisfied with the decision, and Goldwater v. Ginzburg stood as law.

This concluded the key legal proceedings around the lawsuit but not the aftermath which affected the magazine and its publisher, and echoed within the psychological community.

More in my next post.

Notes:

These notes are based on Ginzburg v. Goldwater, 396 U.S. 1049 (1970), downloaded from http://supreme.justia.com/us/396/1049/ on 1/17/10.

The quote from the Fact magazine was cited in the Appeal Court's decision (paragraph 24), 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 http://openjurist.org/414/f2d/324/goldwater-v-ginzburg.