The opinion of the court was delivered by: GRIESA
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 It was voluntarily withdrawn from distribution by Macmillan in July 1970, when the present action was commenced.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.
"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).
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 National Review carried a brief report regarding a speech which Littell was said to have made to the National Education Association. According to National Review, Littell had attacked "right-wingers" as being disloyal, and had stated that such persons needed to be "muted and rendered ineffective".
The August 15, 1967 National Review item led to an exchange of correspondence between Littell and Buckley, in which Littell accused Buckley of misrepresenting him and his views in various ways -- principally in failing to point out that Littell was attacking extremists of both the left and the right.
Buckley rejected the charges. In addition, Buckley devoted one of his syndicated columns On the Right in February 1968 to a sharp criticism of IAD and Littell, whom Buckley termed "an abusive rhetorician." The title of this article was "Who Are the Totalitarians?" Finally, Buckley wrote an item for the March 12, 1968 National Review which quoted excerpts from the recent exchange of letters, and which again spoke critically of the IAD and Littell.
The Writing of Wild Tongues
Littell began work on Wild Tongues in the fall of 1968 and turned over his manuscript to Macmillan in March 1969.
Most of the book was apparently prepared by putting together various papers which Littell had written for seminars or other purposes. However, the section on Buckley was something which Littell wrote afresh.
Following the submission of Littell's manuscript to Macmillan, the editors in charge of the project at Macmillan directed that the book be submitted to counsel for review regarding possible libel problems. It appears that the only portion of the passage regarding Buckley which Macmillan's attorney questioned was a sentence which, in the manuscript, read as follows:
"Buckley has been repeatedly caught out for deliberate misquotations (with quotation marks!) and for repeating radical right malice and slander, but he never admits a mistake or apologizes to the victims."
Macmillan's attorney requested documentation to support the statement that Buckley had knowingly published misquotations and repeated malicious and false statements. In response to this request, Littell's secretary sent Macmillan a copy of Buckley's On the Right column "Who Are the Totalitarians?" and some of the correspondence between Buckley and Littell which occurred in early 1968. This documentation was deemed by Macmillan's attorney to be insufficient. However, the book was on a rush schedule to obtain maximum sales to a large Methodist women's organization. The question of Littell's reference to Buckley was resolved by a change in wording. Macmillan requested that the sentence described above, as originally proposed by Littell, be changed to remove the words "repeatedly" and "deliberately" and to substitute "rumor" for the word "slander". No other changes were requested of Littell in the passage regarding Buckley. The Macmillan editors and Macmillan's counsel indicated to Littell their acquiescence in the following passage as revised:
"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."
Interpretation of Passage Regarding Buckley
Wild Tongues is 184 pages long. It is subtitled, "A Handbook of Social Pathology". One of the main purposes of the book, as Littell describes it, was to inform members of the various Christian denominations in the United States regarding what Littell considered to be the threat to the churches posed by extremist political groups. Littell and Macmillan had received indications that the book might be used in study programs of the Women's Division of the United Methodist Church. The Women's Division numbers about 1,000,000 members. The actual sales of the book did not meet expectations.
Although Wild Tongues addresses itself to both the extreme left and the extreme right, it is fair to say that attention is mainly focused on the right wing. One of the principal themes of the book is that there is more actual and incipient fascism in America than most persons have any awareness of. A substantial part of the book is devoted to listing and describing certain characteristics which are said to be the earmarks of totalitarian organizations and philosophies, both of the right and the left. Littell's message is that if a group or organization has a majority of these characteristics, it should be recognized as being an incipient totalitarian movement. Littell urges that such movements are essentially conspiracies against the American government and should be outlawed.
There has been a certain amount of debate in this action as to what the alleged libelous passage regarding Buckley actually means.
Buckley contends that the book labels him as a fellow traveler of totalitarian fascism, and accuses him of misusing his prestige as a journalist to deceive the public by purveying fascist views under the guise of responsible conservatism. Buckley contends that the book further accuses him of engaging in libelous journalism of the kind authored by Westbrook Pegler against Quentin Reynolds resulting in a libel judgment against Pegler in the noted case of Reynolds v. Pegler, 223 F.2d 429 (2d Cir.), cert. denied, 350 U.S. 846, 76 S. Ct. 80, 100 L. Ed. 754 (1955).
Littell asserts that Buckley exaggerates the import of the alleged libelous passage. First, Littell denies that the book accuses Buckley of being a fellow traveler of fascism. Littell argues that the book, properly interpreted, goes no farther than associating Buckley with the "radical right" -- a political grouping discernibly different from fascism. Second, Littell denies that the book charges Buckley with intentionally using his journalistic position as a cover for fascist propaganda. Littell urges that the book only asserts that there is a frequent coincidence of views of Buckley and the radical right, which inevitably results in Buckley giving aid and comfort to radical right groups. Thirdly, with regard to the comparison between Buckley and Westbrook Pegler, Littell states that he did not intend to accuse Buckley literally of the same kind of conduct engaged in by Westbrook Pegler.
The rule of interpretation in a libel case is that words alleged to be defamatory are to be taken in their natural meaning. Courts will not strain to interpret them in their mildest and most inoffensive sense. Mencher v. Chesley, 297 N.Y. 94, 99, 75 N.E.2d 257 (1947). It is necessary to make a judgment based upon the alleged libelous material as a whole, rather than on the basis of isolated or detached individual sentences or statements. November v. Time, Inc., 13 N.Y.2d 175, 178, 244 N.Y.S.2d 309, 194 N.E.2d 126 (1963). The test of whether a passage is libelous or not is what the overall effect would be upon an ordinary reader. Everett v. Gross, 22 A.D.2d 257, 254 N.Y.S.2d 561, 563 (1st Dept. 1964).
If we view the alleged libelous passage in Wild Tongues according to these rules, the proper interpretation is not difficult to arrive at. Buckley's interpretation of the book is clearly the correct one. Littell's attempt to suggest less harmful meanings to the various statements is, in my view, totally unrealistic. In this connection, a statement of Justice White in his concurring opinion in Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 22, 23, 90 S. Ct. 1537, 1546, 26 L. Ed. 2d 6 (1970) is apposite. The discussion is in the context of the question of First Amendment limitations on libel actions.
"Should New York Times Co. v. Sullivan, 376 U.S. 254, [84 S. Ct. 710, 11 L. Ed. 2d 686] (1964), be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not.
I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstood -- if they are -- by the ordinary reader of their publications."
In order to explain my conclusion as to the meaning of Wild Tongues with respect to Buckley, it is necessary to describe the book in some detail. In the alleged libelous passage, Buckley is charged with being the outstanding representative in America of the function of the fellow traveler, and it is clear that Buckley is being charged with being a fellow traveler of the fascists. Buckley is accused of playing a role dangerous to social health and important to building up totalitarian movements. Buckley is described as having certain characteristics said to be common to fellow travelers of totalitarianism -- such as fascination with brute force and its misuse, a psychological need to be misused and abused, and "essentially feminine" responses. Buckley, being a fellow traveler, refuses to accept party discipline, but is nevertheless dangerous to political movements and republican institutions of integrity because he functions as a deceiver.
The alleged libelous passage contains a paragraph about the Nazi Von Ribbentrop. There is a statement to the effect that the Nazis attempted to use Von Ribbentrop to put up a "debonair front" and to give the Nazi movement an aura of respectibility.
Buckley's name appears immediately following the discussion of Von Ribbentrop. It is said, among other things, that Buckley's magazine National Review and his column On the Right are purveyors of materials "from the openly fascist journals". Buckley's magazine and column are described as "useful agencies" for radical right attacks on honest liberals and conservatives, and it is said that Buckley has been "caught out" for repeating radical right malice and rumor. The passage states that Buckley "could be taken to court by any one of several people" who could afford to do so, and Buckley is compared with Westbrook Pegler "who lied day after day in his column about Quentin Reynolds", resulting in the lawsuit, which Reynolds won.
In the remainder of the "Fellow Traveler" passage, it is said that Buckley constantly undermines respect for American leadership and institutions, and that he is "probably not under the direct control of any subversive party", the clear implication being, as expressly stated in the earlier part of the "Fellow Traveler" passage, that Buckley follows "the line" of subversive parties. Although it is noted that Buckley publicly criticized Robert Welch of the John Birch Society, the reader is led to believe that Buckley has no quarrel with the John Birch Society's "fascist-type conspiracy" and use of "immoral tactics to undermine the constitutional order."
A reader of Wild Tongues would obviously not read the "Fellow Traveler" section in isolation. The meaning of this section to him would be colored by what is said in the rest of the book about such subjects as totalitarianism, fascism and the role of the fellow traveler. These other references serve to emphasize the depth of the evil with which Buckley is being charged. They also show that what is said about Buckley in the "Fellow Traveler" section is not merely a string of loose epithets. Indeed the book undertakes to make a kind of scientific definition of fascism in America, and to fix Buckley and others in their relation to such fascism.
The dust jacket of Wild Tongues describes the book as follows:
"WILD TONGUES, a perceptive and trenchant analysis of extremism, provides an authoritative guide to an understanding of the political and religious threats posed by both far right and left. In this pioneering work in establishing a typology of pathological movements and parties, Franklin H. Littell both defines the enemies of liberty and self-government and shows how democratic processes can be strengthened against them. He spells out, in specific terms, what the extremist groups mean to American life and supplies a checklist by which the pathological organization can be recognized."
Wild Tongues starts out by referring to the 1968 presidential campaign of George Wallace. It is said that this campaign was managed by two prominent "fascist type conspiracies" -- the White Citizens' Councils and the John Birch Society. The book states that Wallace managed to collect about himself "every one of the organizations devoted to a rightest coup -- from the paramilitary Minutemen to the night riders of the Ku Klux Klan" (p. 2).
Wild Tongues speaks of the churches in America as being "under savage attack from the fascist side" (p. 12). Littell quotes a letter from a minister describing the use of various pressure tactics in an attempted takeover of a church by the John Birch Society (pp. 12-14). Shortly before the "Fellow Traveler" section, there is a subchapter entitled "Thunder on the Right" which announces that "the most dangerous internal challenge to America comes from the fascist wing" (p. 35). This subchapter contrasts the "genuine conservatives" with the fascists and their fellow travelers, also labeled as "pseudo-conservatives". There is the following passage (p. 36):
"The pseudo-conservative follows the lead of the demagogues, with a frenzy of unrestrained attacks on public policy and a minimal offering of constructive alternative proposals. Regarding the public debate as meaningless, the totalitarian demagogue is only present to evangelize his own ideology -- never to learn. Tearing and rendering public confidence in the Constitution (and Bill of Rights!) where he can, his style is conspiracy, and his stench is disloyalty. The pseudo-conservative is the 'patsy,' the fellow traveler to the fascists; the genuine conservative is their mortal enemy."
Subsequently, there is a reference to persons (in general) who "are carefully laying the basis for a coup d'etat in their fascist-type literature (p. 43).
The organization most frequently cited as being in the totalitarian fascist camp is the John Birch Society, which is said to be "a disciplined party of pseudo-conservatives and fascists" (p. 37), and to show "striking parallels to the Nazi party" (p. 45).
Two of the four chapters of the book are devoted to the description of the identifying marks of extremist groups. Chapter II is entitled "How to Identify Totalitarian Movements" (pp. 59-92). This chapter starts out with the statement:
". . . but the malaise with which we are dealing is specific, objectively definable. That problem is the rise of disciplined conspiratorial movements whose goal is power and whose style of politics is contrary to the rule of liberty under law which republican constitutions and due process of law are designed to achieve."
Littell apparently believed it important that the extremist right-wing groups he was denouncing be labeled as "fascist" in order to prevent any misunderstanding as to their true nature. Thus the following passage appears (p. 60):
"So too with the term 'radical right': the phrase is preferred by some writers who do not want to apply the precise rubric, which is fascism. 'Fascism' was the term chosen by the oldest movements of right-wing takeover, when Mussolini and his thugs betrayed the legitimate government of Italy in 1922, terrorized and destroyed all dissenting groups, and established the model followed with adaptations by Hitler, Franco, Peron, and a host of subsequent lesser lights. 'Fascism' is the term to apply to parallel movements and systems today, even though specialists note technical differences between Italian fascism, German Nazism, Spanish Falangism, and other radical right movements."
The book goes on to state that, by means of Littell's analytical method, "totalitarian conspiracies and actions can be defined by law as precisely as murder, arson and rape and . . . such definition is overdue" (p. 71). The book states that by this method it is possible to identify "organizations and parties and systems which have opted out of the life of dialogue, which are not in good faith in public meetings, and have in fact drawn the knife against all who stand in the way of their drive for power" (pp. 64-65). On the subject of fellow traveling, the book has this to say (p. 68):
"On the practical side, it is now perfectly possible to distinguish honest liberalism from fellow-traveling with the Communists, and honest conservatism from fellow-traveling with fascist-type movements. The failure to make such distinction, scientifically as possible as the distinction between measles and scarlet fever, is the major plague afflicting both the Republican and Democratic parties in the United States."
Littell describes fifteen "theoretical" identifying marks of totalitarianism (pp. 72-91) and sixteen "practical" characteristics of totalitarianism (pp. 95-111). I will only mention a few of these as illustrations of what Buckley is connected with when he is labeled as a fellow traveler of the fascist brand of totalitarianism.
Littell starts each list with anti-Semitism (pp. 72, 95). Under the heading "The Politics of Polarization", Littell states that totalitarians are "destructive of the rules of the dialogue and of the constitutional order itself", and intend "not orderly change but transfer of power by reversion to the law of the knife" (pp. 74-75). Under the heading of "The Cult of Violence" there is the statement that "the praise of violence toward the opposition is fundamental", and there is a description of the alleged attempts by the John Birch Society and its "fronts" to support lawless and brutal action by police -- particularly against civil rights demonstrators. In this same section of the book, there is also a description of the use of the "big lie" against "faithful stewards of governmental office who resist totalitarian measures and movements". It is further stated (p. 82):
"The Dial-a-Lie telephone program of the John Birch Society, as well as the over 10,000 weekly radio programs of the agents of the radical right, are forms of sadism and barely subdued violence."
It is said that "amateur sleuths" are developed and that "both Communist and fascist organizations keep files on enemy persons -- using the data for character assassination now and liquidation later" (p. 83). It is further stated that "amateur agents" have created "a new style of treason in our time," specializing in the "fifth column," which destroys constitutional order and trust, and which develops "large networks of espionage, subversion and conspiracy" (p. 83). In this connection, the book refers to an organization known as the Church League of America, and states that this organization boasts that its files contain the largest volume of negative information on individuals outside the FBI (p. 83).
The book states that in totalitarian politics, "Symbols of sadism and violence are approved" (p. 108). It is said that "vulgar and vicious forms of sedition are encouraged by disloyal public officials, with unpunished arson and murder the results" (p. 108). The book asserts that totalitarian supporters revert to primitive "justice" in the form of mob demonstrations, mob violence, and the takeover of legitimate organizations by various pressure tactics (pp. 108-9).
The ultimate recommendation is that totalitarian groups in America be exposed as conspiratorial and subversive and be outlawed (p. 113).
In Appendix 2 at the end of the book there is the following definition of "fellow traveler" (p. 131):
"'Fellow-traveling' is to follow a 'line' fixed by someone else in another place, while pretending to integrity -- and independence of discussion and decision."
In Appendix 2 Littell lists a number of "Extremist Newspapers and Magazines". None are classified under the specific heading of "fascist". But a number of publications are listed under the headings of "Racist" and "Radical Right". Some of these are The Cross and the Flag, published by the Christian Nationalist Crusade; American Opinion, published by the John Birch Society; Christian Crusade, published by Billy James Hargis; the Dan Smoot Report ; and Life Line, published by the late H. L. Hunt. It should be noted that Buckley's magazine National Review is not included in any of the listed publications in Appendix 2.
In connection with the meaning of the alleged libelous passage relating to Buckley, attention should be given to the comparison that is drawn between Buckley and Westbrook Pegler. The statement is (p. 51):
"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."
The libel action of Quentin Reynolds against Westbrook Pegler was a case of unusual notoriety. It was described in detail in Louis Nizer's best-selling book My Life in Court, first published in 1963 and reprinted thereafter. Although Littell does not recall reading the ...