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WILLIAM F. BUCKLEY JR.
Goldwater vs. Ginzburg
NEW YORK-A few months after Sen. Barry Goldwater lost the presidential election, I received a message, delivered by hand, from Ralph Ginzburg, the pornographer, advising me to use such influence as I have on Sen. Goldwater to restrain him from pursuing a libel suit he had instituted against Ginzburg and his journal, Fact magazine. You know Goldwater, Ginzburg said to me in effect, and you should tell him that if he proceeds with this lawsuit, I shall be forced to reveal such information about him as I have heretofore such being the reticence of Ginzburg-withheld from the
public.
WILLIAM F. BUCKLEY JR.
I passed along the communication to Goldwater's lawyer and we chatted about it, and I learned that another friend of the senator's had received an identical message by telegram.
I must confess that I thought it unprofitable for Sen. Goldwater to launch the suit, and told him so. Imagine coming into a city. that had gone against him 4 to 1, in which his name was anathema on account of the great and barbarous excesses of his critics during 1964.
He would be facing a jury of 12 men and women and persuading them unanimously not merely that he had been libelled, but that the libeler had proceeded against him with what the Supreme Court calls "actual malice," i.e. with either a reckless disregard for the known facts, or with the knowledge that what he had said was untrue.
But Goldwater was aroused. And he is the kind of man who gets aroused not merely because of self-concern. He was aroused because, as he put it, “if you can say that kind of thing about a man who is running for public office, then decent men are going to stop running for public office.”
What kind of thing? Ginzburg had published in his magazine, garishly advertised in the national press, allegations touching on Goldwater's essential qualifications as a human being. A summary of the allegations of that issue of Fact were that Goldwater was "homosexual, latent or overt, doubted his manhood, was emotionally unstable, paranoid, was, like Hitler, a sadist, immoral, and amoral, and a mass murderer."
THE TRIAL lasted three weeks. The defense, which sought at first to insist that the charges against Goldwater were true, quickly retreated to what the lawyers call "fair comment." And in due course they retreated from that, on over to a defense against the charges of actual malice. But skillful questioning by Goldwater's lawyer, plus Goldwater's own wholesome performance on the stand, were apparently enough' to persuade the jury that Ginzburg had every reason to believe that the charges he was publishing against Goldwater were not only false but preposterous, but that he published them anyway. Goldwater had not asked for, nor did the jury award him, compensatory damages.
It is not likely that the article cost Goldwater the election. But the jury did award punitive damages, in the sum of $75,000. Ginzburg will, of course, appeal.
Lawsuits come high, but Goldwater's contribution-his own time, his money, and self exposure to ignominious questioningis in the tradition of public service to which the senator has been addicted over all those years when his detractor Ginzburg was making his living by pandering to his readers' lubricous appetites.
A lot has been done in recent years to define libel law as it concerns public figures, and the renowned New York Times vs. Sullivan, stopping public figures from suing unless they can prove actual malice, is in the right direction. But surely the reform most overdue would require the loser of libel suits to pay the cost of the winner? The American Ginzburgs of the future should be required, as they are in England, to pay the cost of litigation. Otherwise judgments as moral vindications are only available to wealthy men.