Goldwater v. Ginzburg, 496-499

• Citation: 414 F.2d 324
• Decision Date: 18 July 1969
• Docket Number: Dockets 32804-32807.,No. 496-499,496-499
• Parties: Barry M. GOLDWATER, Plaintiff-Appellee, v. Ralph GINZBURG, Defendant-Appellant, Warren Boroson, Defendant, and Fact Magazine, Inc., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

414 F.2d 324 (1969)

Barry M. GOLDWATER, Plaintiff-Appellee, v. Ralph GINZBURG, Defendant-Appellant, Warren Boroson, Defendant, and Fact Magazine, Inc., Defendant-Appellant.

Nos. 496-499, Dockets 32804-32807.

United States Court of Appeals Second Circuit.

Argued April 15, 1969.

Decided July 18, 1969.

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Roger Robb, Robb, Porter, Kistler & Parkinson, Washington, D. C., Louis H. Powell, Peter G. Corbett, Regan, Goldfarb, Powell & Quinn, New York City, for appellee.

Harold E. Kohn, David H. Marion, Louis E. Levinthal, Philadelphia, Pa., Stanley S. Arkin, New York City, Helen H. Stern, Dilworth, Paxson, Kalish, Kohn & Levy, Philadelphia, Pa., Harris B. Steinberg, New York City, for appellants.

Before WATERMAN, SMITH and FEINBERG, Circuit Judges.

WATERMAN, Circuit Judge:

This is a libel action brought by Senator Barry M. Goldwater against Ralph Ginzburg, Warren Boroson, and Fact Magazine, Inc. The action, a diversity action, was commenced in the Southern District of New York and is based upon the publication of the September-October 1964 issue of a magazine called Fact, an issue which was heralded as "The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater." The appellant Ginzburg, the President and sole stockholder of Fact Magazine, Inc., was editor and publisher of Fact, and Boroson was its managing or contributing editor. Fact Magazine, Inc. was a New York corporation with its principal offices in New York, and Ginzburg and Boroson were citizens of New York. The appellee, Senator Goldwater, was a citizen of the State of Arizona and at the time the magazine was published and distributed was a United States Senator from that State and the candidate of one of the two major political parties for election to the office of President of the United States.

The Complaint charged that Fact contained numerous "false, scandalous and defamatory statements referring to and concerning plaintiff" and, on a comprehensive but not on an all-inclusive basis, it set forth a number of specific examples of them. These statements, it alleged, "were published and circulated by defendants with actual malice, or with reckless disregard of whether such statements were false or not, and with the deliberate, wilful and malicious purpose and intent to injure plaintiff and to deprive plaintiff of his good name and reputation as a person, a public official and a candidate for office and to bring plaintiff into disrepute and subject him to public scorn, contempt, obloquy and ridicule." The Complaint also alleged that as a result of these statements plaintiff was injured in his reputation, was held up to public scorn, contempt, obloquy and ridicule, and suffered great mental pain and anguish. Compensatory damages were demanded in the sum of $1,000,000 and punitive damages in a like amount.

The Answer denied that any statements contained in the magazine were false or defamatory and denied that the magazine and the statements were published and circulated with actual malice. Moreover, the defendants pleaded the affirmative defenses of truth, of fair comment and of privilege based on the fact that plaintiff was a United States Senator and a candidate for the Presidency at the time the magazine was published and the alleged fact that it was published without actual malice.

The defendants moved for summary judgment. The motion was heard and denied by Judge Inzer B. Wyatt, who held that a jury might infer actual malice from admissions made by appellant Ginzburg on deposition and from various documents produced by defendants in the course of discovery proceedings. Goldwater v. Ginzburg, 261 F.Supp. 784 (S.D.N.Y.1966). Leave for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) was denied by this court on January 12, 1967.

After fifteen days of trial before Judge Harold R. Tyler, Jr. and a jury, the jury returned a verdict against all three defendants. The appellee was awarded $1.00 in compensatory damages against appellant Ginzburg, Boroson, and appellant Fact Magazine, Inc., and punitive damages in the amounts of $25,000 against appellant Ginzburg and $50,000 against appellant Fact Magazine, Inc. The defendants filed post-verdict and post-judgment motions, all of which were denied by the trial judge.

Defendant Boroson did not file a notice of appeal, but defendants Ginzburg and Fact Magazine appeal from Judge Wyatt's decision denying defendants' Motion for Summary Judgment and from Judge Tyler's decision denying a post-verdict motion for judgment notwithstanding the verdict and new trial and leave to present oral argument thereon, from the judgment he ordered entered on the verdict, and from his decision denying a post-judgment motion under Fed.R.Civ.P. 60(b) for relief from the judgment and for a new trial.

After a full review of the lengthy record we do not find that error was committed by the experienced district judges below. We affirm their decisions, and we affirm the judgment entered upon the jury verdict.

The events which culminated in the publishing of the September-October 1964 issue of Fact and which then resulted in the institution and prosecution of this libel action began during the week of the July 1964 Republican National Convention. Ginzburg and Boroson watched the convention together and neither of them was pleased that Senator Goldwater had received the Republican nomination for the Presidency. On July 16, immediately following Senator Goldwater's nomination, Ginzburg and Boroson, desiring, so they testified, to alert the American people to the Ginzburg-Boroson-perceived dangers of a Goldwater presidency, decided to publish the "Goldwater issue" of Fact.¹

They agreed that Boroson "would commence to gather research of every scrap of information in the public record that was relevant to a psychobiography of Goldwater," and that Ginzburg would gather the opinions of psychiatrists across the land by means of a poll and then would write an article on Goldwater for publication in the magazine.

On July 16, 1964, before any research or polling had commenced, Boroson wrote a letter to Mr. Walter Reuther which asked for his comments about Senator Goldwater's personality and which indicates that appellants had decided to asperse Senator Goldwater's character on preconceived psychiatric or psychological grounds of their own fabrication. The Boroson letter to Mr. Reuther stated in part as follows:

"I\'m writing an article for Fact about an old enemy of yours — Barry Goldwater. It\'s going to be a psychological profile, and will say, basically, that Goldwater is so belligerent, suspicious, hot-tempered, and rigid because he has deep-seated doubts about his masculinity. * * *"

Mr. Reuther did not respond to the letter.

Boroson then started his research. This involved the reading of various articles, newspaper stories and books dealing with Senator Goldwater. Certain portions of this material which Boroson thought "gave some sort of insight into * * * Goldwater's psychological makeup" were marked for Ginzburg's attention. There was evidence that the Boroson markings were highly selective. Derogatory statements about Senator Goldwater were marked, but complimentary statements were not, even though they occurred within the same paragraph and even though they qualified the damaging statements.²

As a result of this "research" Boroson produced a "research draft," the theme of which was a comparison between Senator Goldwater and the "Authoritarian Personality."³ This draft was submitted to Ginzburg about August 27, 1964. Ginzburg deleted most of Boroson's references to the authoritarian personality and reached the conclusion, which Boroson had not expressed, that Senator Goldwater was suffering from paranoia and was mentally ill.

At the same time that Boroson was researching Senator Goldwater's life, appellants prepared and sent a letter and a questionnaire to a list of psychiatrists.⁴ The solicited psychiatrists were invited to answer, with their comments, the question, "Do you believe Barry Goldwater is psychologically fit to serve as President of the United States? No Yes." This poll was conceived and planned by Ginzburg and Boroson, who had no training or prior experience in the techniques of polling and who had made no study of it, without first consulting or securing any advice from any expert in the field.

A letter written by Ginzburg with the assistance of Boroson and signed by Boroson as "managing editor" of Fact accompanied the questionnaire addressed to psychiatrists. The letter stated in part:

"A recent survey by Medical Tribune showed that psychiatrists — in sharp contrast to all other MDs — hold Goldwater in low esteem. Among MDs generally, approximately two-thirds prefer Goldwater over Johnson. But among psychiatrists, the preference is for Johnson by ten to one.

We would appreciate, first, your indicating whether you think Goldwater is stable enough to serve as President by checking the appropriate box on the enclosed sheet of paper. We would also appreciate any remarks you might care to make concerning Goldwater\'s general mental stability, insofar as you are able to draw inferences concerning it from his public utterances, his political viewpoints, and whatever knowledge you may have of his personality and background. Does he seem prone to aggressive behavior and destructiveness? Does he seem callous to the downtrodden and needy? Can you offer any explanation of his public temper-tantrums and his occasional outbursts of profanity? Finally, do you think that his having had two nervous breakdowns has any bearing on his fitness to govern this country?"⁵

Although defendants emphasized in their letter that the survey showed that "among psychiatrists, the preference is for Johnson by ten to one," over Goldwater, they failed to point out that according to the same survey, a survey conducted prior to the Republican National Convention,...