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Buckley v. Littell

decided: June 30, 1976.


Appeal from judgment in defamation action in United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, of $1 compensatory and $7,500 punitive damages. Affirmed in part, reversed in part.

Kaufman, Chief Judge, Oakes and Gurfein, Circuit Judges.

Author: Oakes

OAKES, Circuit Judge:

This appeal is from a judgment for libel obtained by the public figure, William F. Buckley, Jr., against Franklin H. Littell for statements made in the latter's book entitled Wild Tongues. Judgment was rendered after trial by the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, without a jury, on the basis of three defamatory statements, in the sum of one dollar compensatory and $7,500 punitive damages. See Buckley v. Littell, 394 F. Supp. 918 (S.D.N.Y. 1975). We reverse in part, affirm in part and reduce the punitive damages to $1,000.

Wild Tongues was published by The MacMillan Co. in 1969, on the subject of the threat of totalitarianism to American religion and politics. Subtitled "A Handbook of Social Pathology," it purports to be a timely study of political extremism - both of the radical right and left - thought the greater part of its content is directed at extremism from the "radical right." Evidently the book was written primarily for laymen and not, as Dr. Littell's earlier books had been, for a scholarly audience. The jacket states that the author's purpose was to demonstrate how the "pathological style" may be recognized, whatever its posture in the body politic. While the book considers that "the most dangerous internal challenge to America comes from the fascist wing," Wild Tongues at 35, it also condemns the threat from the left, especially from the campus Communists and extremist-controlled civil rights and peace movements. Focusing on the right, it views the John Birch Society as a principal threat to America, together with its assorted "fronts," especially the "Church League of America." An underlying theme of the book is the threat to Christian citizenship posed by extremism and a subtheme, if not the principal theme, is to the effect that the greatest gift to the totalitarians is "religious and political indifference and apathy." Having outlined in general the intended purposes of the book, we set forth the paragraphs containing the alleged defamatory statements in the margin.*fn1

It was stipulated below, 394 F. Supp. at 922, that appellee William F. Buckley, Jr., is a "public figure" as defined by the United States Supreme Court in Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967), and more recently in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 345, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974):

Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures . . . .

For the most part, those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

From the time Buckley first wrote his book God and Man at Yale he has inspired considerable comment and he has been much in the public eye, founding in 1955 and editing The National Review which in 1968-69 as a fortnightly had a circulation of about 100,000 copies per issue and has an even larger circulation now. Since 1964 Buckley has been the author of a syndicated newspaper column, "On the Right," appearing three times weekly in 250 newspapers in 1968-69 and in about 350 newspapers today. Beyond this he has a weekly television show entitled "Firing Line," carried first by commercial television and subsequently by public broadcasting and radio. The evidence is that his column, "On the Right," was the third most widely-sold column of political commentary in 1968 and 1969 and is second only to Jack Anderson's column today. Buckley is a lecturer, the author of a number of books and articles, and was chairman and part owner of the Star Broadcasting group, which owns radio and television stations and a book publishing company. He was the unsuccessful Conservative Party candidate for mayor of New York in 1965 and served for three years on an advisory committee of the United States Information Agency; in 1973 he was a public member of the United States delegation to the 28th General Assembly of the United Nations. At one time he was also a candidate for the Yale University Board of Trustees. He is a frequent guest on television and radio programs and is recently a successful novelist. The substance of much of his writing and speaking is political. He may fairly be described as perhaps the leading advocate, idealogue or theoretician of conservative political beliefs and ideas. He is, in short, a public figure for all purposes and in the classic sense of the Supreme Court cases. Cf. Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154, 44 U.S.L.W. 4262, 4263-64 (1976).

Appellant, Franklin H. Littell, is a theologian who has also been involved in public affairs. He was ordained a Methodist minister in 1941 and received a Ph.D. in church history from Yale in the same era as Buckley was graduating from that esteemed university. He was the chief Protestant advisor to the United States High Commissioner in Germany, principally engaged in "de-Nazification," in 1949-1951. Since then he has taught at a number of universities and theological schools, has been president of Iowa Wesleyan College, has preached and lectured throughout the United States and Europe, and presently is a professor at Temple University. He wrote the book Wild Tongues principally, he said, out of his concern for the threat to democratic society posed by extremist groups and individuals and based upon his observation of the impact of communism in Eastern Europe and of his rather considerable experience in reference to the impact of fascism in Western Europe. The book was written following the assassinations of Dr. Martin Luther King, Jr., and Senator Robert F. Kennedy, which excited Dr. Littell's emotions as they did many others; the "wild tongues" of its title is taken from a stanza of Kipling's "Recessional" and refers to the "demagogues" who bring malice and confusion to political dialogue. See Wild Tongues at 118-19. Dr. Littell has given seminars on church struggles with totalitarianism, and is the author of 12 books on topics of religious liberty. In 1966 he became chairman of an organization called the Institute for American Democracy (IAD), a group founded for the purposes of opposition to political extremists. Following the formation of the IAD, both it and Littell were attacked beginning in January, 1967, in the John Birch Society Bulletin, in News and Views of the Church League of America, and in other conservative periodicals and broadcasts as well as by the National Review. At one point in 1967, Littell testified, his living room window was shot out and his family received threatening and obscene telephone calls. There were continued attacks upon him in News and Views in June 1968, in Buckley's column in July, 1968, and in News and Views in November, 1968, which was cited with approval in the National Review that month.

Littell's reference to Buckley in Wild Tongues grew, according to Littell's testimony, out of his observations of Buckley's politics beginning in the late 1950's, and more particularly out of a personal exchange with Buckley which involved a speech written by Littell for delivery to the National Education Association in 1967 on the subject of left and right extremism. The National Review's Bulletin carried a report of the speech on August 15, 1967, as an attack on the right wing, purporting to quote Littell but using, as it turned out, an inaccurate Rocky Mountain News report of the speech for its direct quotations. In November 1967, Littell wrote to Buckley, complaining of misquotation in the Bulletin and enclosing a copy of his speech for comparison, adding that he appreciated Buckley's "effort to maintain an honest and non-Fascist Conservatism," and therefore expected him to check his sources. When Buckley informed Littell on January 8, 1968, that he was preparing a column involving Littell's speech, Littell wrote again on January 14 to explain his protest of the report of his speech and asked for a correction in these terms:

The "trouble" Buckley gave Littell appeared in his column "On the Right" on February 10, 1968, under the title "Who Are the Totalitarians?" Buckley admitted at trial that he referred to Littell's speech with inaccurate direct quotations labeling Robert Welch and Gerald L. K. Smith part of the "fascist underworld." The substance of Buckley's criticism of Littell's argument for suppression of political extremism was reflected in his queries, "Where do you draw the line?" and "What does Dr. Littell mean by fascist?" Buckley termed Littell an "abusive rhetorician," and the IAD, the "successor" to the National Council for Civic Responsibility, a " phoney outfit" "commissioned to defame Senator Goldwater." After receiving another protest from Littell, calling Buckley a "smart aleck without principles," and a request for a correction from the Executive Secretary of IAD which was denied, Buckley published excerpts of the Buckley-Littell correspondence in the March 12, 1968, issue of the National Review without Littell's knowledge. It was in the context of this strongly-worded interchange, as well as the continuing criticism of Littell and the IAD in the National Review, that the reference to Buckley in Wild Tongues came about, see note 1, supra.

As we read Judge Griesa's extensive opinion he found that the passage set forth in note 1, supra libeled Buckley in three respects: first, by labeling Buckley as a "fellow traveler" of "fascism" as those terms are defined in Wild Tongues, see 394 F. Supp. at 924-25, 929, 940; second, by saying that he acts as a "deceiver" and uses his journalistic position to spread materials from "openly fascist journals" under the guise of responsible conservatism, see id. at 929, 933-34, 940; and third, by accusing Buckley of engaging in the same kind of libelous journalism as Westbrook Pegler practiced against Quentin Reynolds.*fn2 See id. at 924-25, 929, 939-40. The district judge's extensive exegesis of the book in question may be summarized by the statement that he interpreted the passage regarding Buckley, taken in context with other portions of the book, as labeling Buckley as the outstanding representative in this country of the function of fascist fellow traveler, associated with clearly specified evils which the court found to include "disloyalty to the government of this country, advocacy of conspiratorial overthrow of the government, devotion to violence and disruptive tactics for the subversion of our institutions, including churches." Id. at 929.

The court held that the three libelous statements were made "with knowledge of their falsity or in reckless disregard of whether they were true or false," a proposition which it found had been demonstrated "with convincing clarity," id. at 940, primarily by Littell's own testimony of his opinions and intentions recounted at considerable length in the opinion, id. at 932-34, 936-40. The court took the view that it was evident from the testimony ...

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