Buckley v. Littell

• Decision Date: 23 May 1975
• Docket Number: No. 70 Civ. 2844.,70 Civ. 2844.
• Parties: William F. BUCKLEY, Jr., Plaintiff, v. Franklin H. LITTELL, Defendant.
• Court: U.S. District Court — Southern District of New York

394 F. Supp. 918

William F. BUCKLEY, Jr., Plaintiff, v. Franklin H. LITTELL, Defendant.

No. 70 Civ. 2844.

United States District Court, S. D. New York.

May 23, 1975.

COPYRIGHT MATERIAL OMITTED

J. Daniel Mahoney, Windels & Marx, New York City, David P. Callahan, Wormser, Kiely, Alessandroni & McCann, New York City, C. Dickerman Williams, Baker, Nelson & Williams, New York City, for plaintiff.

David Blasband, Stanley H. Schneider, Linden & Deutsch, New York City, for defendant.

Dr. Franklin H. Littell, pro se.

OPINION

GRIESA, District Judge.

This is a defamation action, commenced on July 1, 1970 by William F. Buckley, Jr., seeking damages for an alleged libel contained in a book entitled Wild Tongues. The defendants originally sued were the author of the book, Dr. Franklin H. Littell, and the book's publisher, The Macmillan Company.

The case was tried by the court without a jury. During the trial, Buckley and Macmillan reached a settlement and Macmillan was dismissed from the case.

Littell has appeared pro se in this litigation. However, it should be noted that following the disposition of the claim against Macmillan, the attorney who had been acting for Macmillan, David Blasband, Esq., continued in an amicus curiae capacity, and assisted in briefing and arguing the position of Littell. For this, the court wishes to express its appreciation.

This decision constitutes the court's findings of fact and conclusions of law with respect to Buckley's claims against Littell. For the reasons which will be hereafter explained, I have concluded that the writing in question is libelous and that Buckley is entitled to judgment. I further hold that the First Amendment protection enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and subsequent Supreme Court decisions, does not bar recovery by Buckley under the circumstances of this case.

The Alleged Libelous Passage

The book Wild Tongues was published by Macmillan on October 6, 1969. It was voluntarily withdrawn from distribution by Macmillan in July 1970, when the present action was commenced. Prior to this time the book sold 941 hard cover copies and 8,226 paperback copies.

The alleged libelous passage occurs at pages 50-51 of Wild Tongues, in which Littell characterizes Buckley as "the outstanding representative" of the function of "fellow traveler" with respect to fascism in the United States. This passage is contained in a subchapter entitled "The Fellow Traveler", which reads as follows (pp. 50-52):

"Whisking about the edges of any totalitarian movement is the `fellow traveler' pirouetting into the whirlpool and out again as the vortex draws more powerfully and then recedes. His role is as dangerous to social health and as important to building up totalitarian parties as the equally ambiguous figure of the pseudo-conservative. The fellow traveler to the Communists or fascists is a fascinating psychological study: fascination with brute force and its misuse plays an important role. Students of communism have commented at length upon the party member's `psychology of the pawn' — his need to be misused and abused, to the destruction of his own personhood. The fellow traveler's responses are essentially feminine, registering the ambivalence of love and hate toward the master and mover.

"The fellow traveler refuses to accept discipline and is therefore both used and despised by the party leaders. At the same time, he is dangerous to political movements and republican institutions of integrity, because he functions as a deceiver. He appears at times to be independent, but, when a major issue is at stake, he follows the party line.

"Perhaps the most famous type in recent years was Von Ribbentrop, pseudo-intellectual and champagne salesman, who was of great use to the Nazi government in giving an aura of respectability to international policies which, without a debonair front, might have been recognized readily for what they were: simple thuggery.

"In America, the outstanding representative of this function is William F. Buckley, Jr., editor of The National Review and perennial political candidate. Buckley got his start as a smart young `intellectual' by writing a book, God and Man at Yale, upon graduating from his alma mater. The book has been soundly exposed and condemned by professors and overseers and loyal alumni for falsely twisting facts and for sheer malice. The National Review and his syndicated newspaper column, `On the Right,' frequently print `news items' and interpretations picked up from the openly fascist journals and have been important and useful agencies for radical right attacks on honest liberals and conservatives.

"Buckley has been caught out for misquotations (with quotation marks!) and for repeating radical right malice and rumor, but he never admits a mistake or apologizes to the victims. Like Westbrook Pegler, who lied day after day in his column about Quentin Reynolds and goaded him into a lawsuit, Buckley could be taken to court by any one of several people who had enough money to hire competent legal counsel and nothing else to do. Reynolds won his suit, of course, but it took all of his time and resources for most of three years, and he died shortly thereafter.¹

"As his lack of respect for the rules of the dialogue and his constant undermining of respect for American leadership and institutions reveal, Buckley is not a `conservative' at all. The streak of ideological taint and moral nihilism is too pronounced, even though he is probably not under the direct control of any subversive party. When he publicly criticized Robert Welch of the John Birch Society, Buckley did not do it because Welch led a fascist-type conspiracy and used immoral tactics to undermine the constitutional order. Buckley said Welch was too extreme to be successful. When Dr. Martin Luther King, Jr. was assassinated, Buckley wrote in his column a tortuously reasoned explanation that the murderer represented the error of an independent conscience, which was Dr. King's error too.

"`Truth,' asked Pilate, `What is truth?'"

Description of the Parties

a. William F. Buckley, Jr.

For many years Buckley has been the owner and editor-in-chief of National Review, a well-known fortnightly journal founded in 1955. In 1968-69, at the time of the events involved in this lawsuit, National Review had a circulation of about 100,000 copies per issue. Its current circulation is about 110,000 copies per issue. Since 1964 Buckley has been the author of a syndicated newspaper column entitled On the Right, appearing three times a week. In 1968-69 the column was carried by about 250 newspapers. Today it is carried by 350 papers throughout the country. Buckley hosts a weekly television show entitled Firing Line, which was carried by about 75 commercial television stations in 1969. Since then his program has been transferred to the Public Broadcasting Service network, and is now carried on more than 200 television stations in this network. The television program receives financing from a Ford Foundation grant.

The evidence in this case indicates that in 1968-69 Buckley's column On the Right was the third most widely sold column of political commentary in the country — ranking only behind the columns of Jack Anderson and David Lawrence. Today, following the death of David Lawrence, the Buckley column is second only to the Jack Anderson column.

Buckley is the author of ten books dealing mainly with political subjects. He has edited four other books, and has contributed materials for still other books and also for various magazines.

Buckley delivers between 50 and 60 lectures a year, mainly on political and educational matters.

Buckley is chairman of the board and part owner of The Starr Broadcasting Group, Inc., which owns radio and television stations as well as a book publishing company.

In 1965 Buckley was the unsuccessful Conservative Party candidate for Mayor of New York City. From 1969 to 1972 Buckley served on the five-member Advisory Committee on Information of the United States Information Agency. In 1973 Buckley was appointed as public member of the United States delegation to the 28th General Assembly of the United Nations.

It is stipulated that Buckley is a "public figure" as that term is defined in the cases dealing with First Amendment restrictions on libel actions. See Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

b. Franklin H. Littell

Littell is, and at the time he wrote Wild Tongues was, a professor in the Department of Religion at Temple University in Philadelphia, Pennsylvania. Following college and seminary training, Littell was ordained a Methodist minister in 1941. Littell obtained a Ph.D. degree in church history from Yale University in 1946.

In 1950-51 Littell was chief Protestant advisor to High Commissioner McCloy in Germany. Littell has held professorships at Emory University, Southern Methodist University and Chicago Theological Seminary. From 1966-69 Littell served as president of Iowa Wesleyan College, after which he took his present position at Temple University.

Prior to the trial of this action, Littell had written twelve books about subjects such as religious liberty and struggles between church and state. Two more books were in progress.

In 1966 Littell became the chairman of a new organization known as the Institute for American Democracy ("IAD"). The avowed purpose of the organization was to combat political groups and individuals associated with what were regarded as the extreme right and left of the American political spectrum. IAD published a periodical entitled "Homefront".

Buckley-Littell Dispute Prior to Publication of Wild Tongues

Following the formation of IAD under Littell's chairmanship, IAD was the subject of critical comment from various sources, including Buckley's National Review in its issue of January 10, 1967.

On August 15, 1967 ...