The Fact Magazine Libel Trial: Journalistic Accounts
How accurate was the New York Times report?
Posted April 4, 2010
I have been recounting the Fact magazine libel trial, in which Senator Barry Goldwater sued a magazine publisher, Ralph Ginzburg, for libel. The Senator claimed that Mr. Ginzburg had libeled him during the 1964 presidential campaign, when Mr. Goldwater was the Repubican candidate for president. (He ran against President Lyndon B. Johnson and lost in a landslide).
Much of my account of the Goldwater v. Ginzburg trial has been based on accounts by journalists. For example, I have relied extensively on articles by Edward C. "Ned" Burks of the New York Times. How accurate, I wondered, was Mr. Burks' reporting?
Mr. Burks' articles in the New York Times can be compared with a transcript of the trial, portions of which were discovered in Senator Goldwater's possession after his death, and published in Pure Goldwater, a book edited by his son, Barry Goldwater Jr., and John Dean. I have examined the instances where court transcript reproduced in the book overlapped with Mr. Burks' reports. Mr. Burks' quotes were laudably close to those recorded by the court stenographer.
For example, in a key portion of the courtroom testimony having to do with the Senator's mental health, the court stenographer wrote Mr. Goldwater proclaimed, "I never talked to a psychiatrist in my life." In Mr. Burks' May 8th account for the Times, he writes: "I never went to a psychiatrist in my life."
In lengthier testimony reported in the Times the next day, the discrepancies are slightly more salient. The court transcript includes Mr. Goldwater's response to a question from his lawyers as to whether he suffered due to the Fact magazine articles that analyzed his personality. One article had emphasized that Mr. Goldwater was unsure of his masculine identity. According to the court records, Goldwater replied:
"I still have the same feeling, that after having read this, and after having been defeated, which did not bother me a bit, when I walked down the street even in New York, people naturally recognized me and they smile. I don't know whether they are smiling out of respect for me or friendliness or whether they are thinking there goes that queer or there goes that homosexual, or there goes that man who is afraid of masculinity."
The transcript records that Goldwater's lawyer then asked, "Or hates or fears his wife?"
Mr. Burks' New York Times account is close but omits the idea of "smiling out of respect for me or friendliness," and Mr. Burks reports that Mr. Goldwater said "...or hates his wife...", rather than ascribing the remark to his attorney.
Psychologists who study memory for connected discourse can tell you that such errors in memory are fairly common. In a more politicized moment, where nuance is important, however, one could imagine that similar errors could be more problematic in representing the truth of an exchange.
Given the drubbing the Senator took in the 1964 election campaign, we can easily understand that Senator Goldwater was no fan of journalistic craft or journalists. During the trial, on the witness stand, the Senator had the following exchange with the opposing counsel (from the court transcript):
Q: Did you have the feeling that the press and television were biased against you or... conspiratorial against you?
A: I don't know if conspiratorial would be the word...There was friendly press; there were some press that bent over in my direction. But I would say the majority of the press was not friendly to my candidacy.
Q: Not friendly is sort of a cleaned up version of what you felt at the time, isn't it Senator? DIdn't you charge them with outright lies, utter dishonesty?
A: Yes, I think I did.
Q: And that is what you mean when you say they weren't friendly?
Q: Among those newspapers and mass media which you thought were lying, out and out liars and utterly dishonest, also you say "Newspapers like the New York Times have to stoop to utter dishonesty in reflecting my views."
A: I think I did.
Q: Did you say "Some of the newspapers here in San Francisco, like the Chronicle, are nothing but out and out liars"?
A: I think I did.
Q: Did you say the Columbia Broadcasting System network had pulled three sneakers on you that you would never forgive them for?
A: I probably said it. I can't remember what they are right now.
Q: Did you mean it when you said it or were you joking?
A: No, I wasn't joking. I don't joke when I say things like that.
This is a thoughtful but strongly negative view of some of the highest pantheons of journalism at the time.
Mr. Burks' reporting was reasonably accurate; his errors, simple and minor. In terms of straight reporting, Mr. Burks seems to have come close to the mark, at least where it can be readily cross-checked.
In the story of the Fact libel case, some might reasonably wonder whether it makes sense to rely on accounts of the trial by other journalists who might also have bent the facts. The libel trial began with an accusation (upheld in court) that Mr. Ginzburg and his editor Mr. Boroson acted with recklessness in their reporting on Senator Goldwater's character. The ending of the legal action, which takes place at the Supreme Court, included an off-hand remark by a justice -- defending free speech -- that not only were Fact's articles undoubtedly reckless, but that "...no doubt many campaign articles are."
Like other evidence, we have to sort through the reports of journalists as best we can. For example, Mr. Burks' goal to report just what happened at the trial is relatively achievable. His skill at transcription, verified in a couple of instances against court transcripts, provides us with additional confidence in his account.
The more ambitious and risky journalism in Fact magazine attempted to come to grips with Mr. Goldwater's character and was highly speculative in its aims. Moreover, the publisher, Mr. Ginzburg, and his staff, appeared to have taken greater liberties with the truth in some places than might be desirable.
Even if we were on the campaign trail with Senator Goldwater, or there in the courtroom witnessing the subsequent libel trial with our own eyes, we might make mistakes due to inattention, sensory illusion, or fatigue. In the end, we can never absolutely tell truth from fiction. Rather, we have to sort through the complexities and draw the best conclusions about the case that we can.
The reports from Mr. Burks are drawn from Burks, E. C. (1968, May 9). 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. Some selected reprints from the transcripts of the trial focusing on the Senator's testimony are found in Dean, J. W., & Goldwater, B. M. Jr. (2008). Pure Goldwater. New York: Palgrave Macmillan. The specific exchange between the defense counsel and Senator Goldwater concerning Mr. Goldwater's opinion of the media was reported on pp. 172-173.
Copyright © 2010 John D. Mayer