May 28, 2024

© Associated Press
Magazine publisher Ralph Ginzburg in 1973. In fall 1964, he published “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater” — and was sued.

When Barry Goldwater was the Republican presidential nominee in 1964, he didn’t hold back. At the party’s convention that summer, he excited hardcore conservatives by famously declaring “extremism in the defense of liberty is no vice” and “moderation in the pursuit of justice is no virtue.” He also spooked many liberals and moderates by talking openly about using nuclear weapons, suggesting the United States “lob one into the men’s room at the Kremlin.”

A racy publisher named Ralph Ginzburg played on fears about Goldwater’s mental stability in the fall of 1964, by publishing a story in his magazine with a provocative headline on its cover: “1,189 Psychiatrists Say Goldwater Is Psychologically Unfit To Be President!” After losing in a landslide election to President Lyndon B. Johnson, Goldwater filed a $2 million libel lawsuit against Ginzburg, his Fact magazine and its managing editor.

Because he was a public figure, Goldwater had a high bar to win his suit: proving that the defendants knew the statements they published about him were false or acted with reckless disregard for the truth. It’s the same standard that Dominion Voting Systems will have to meet if it is to prevail in its $1.6 billion defamation suit against Fox News, which goes to trial this week. A judge has already ruled that Fox aired false claims by Donald Trump’s allies that Dominion rigged voting machines against the Republican candidate.

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Ginzburg, a counterculture figure with a bushy mustache, published “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater” in the September-October 1964 issue of Fact magazine. The headline was a play on Goldwater’s 1960 book, “The Conscience of a Conservative.” For the story, the magazine asked more than 12,000 psychiatrists, “Do you believe Barry Goldwater is psychologically fit to serve as President of the United States?”

It received 2,417 responses, about half of whom said no. The story printed some of the psychiatrists’ comments about Goldwater, including calling him “emotionally unstable,” “paranoid,” a “mass murderer,” a “chronic schizophrenic” and a “dangerous lunatic.” One of the respondents compared Goldwater to Adolf Hitler.

© Ferd Kaufman/AP
Barry Goldwater, addressing some 1,500 Texas Republicans at a June 1964 dinner in Dallas, amassed a deep conservative following but lost big in the general election.

“Goldwater saw the profile and the survey as gross violations not only of libel law, but also of medical ethics,” John Martin-Joy, a psychiatrist at Harvard Medical School, wrote in The Washington Post in 2020. “He hoped to prevent scurrilous attacks on future politicians, especially conservatives.”

The story spurred the American Psychiatric Association’s 1973 “Goldwater Rule,” which bans diagnosing public figures without full evaluation and consent. The APA reaffirmed the rule in March 2017, during the early days of the Trump presidency, at a time when some people were questioning the new president’s mental stability — just as they had Goldwater’s back in the 1960s.

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“The Ginzburg case is probably best known for the professional ethics issues that it raised in the psychiatric community, but as a libel action it’s notable because it was the rare case in which the plaintiff was able to prove that the statements at issue were made with knowledge of their falsity,” said Jonathan Peters, a media law professor at the University of Georgia.

This image from video shows a mushroom cloud from a nuclear explosion in a 1964 campaign ad known as the “Daisy Spot.” It played on fears about what Sen. Barry Goldwater would do with the nuclear codes. (Democratic National Committee via the LBJ Library/AP)

The case went to trial in 1968, and Goldwater took the stand. Given the Supreme Court’s “actual malice” standard for libel against public figures, established in 1964’s New York Times v. Sullivan, some legal observers thought he had an uphill battle.

“Indeed, many uninvolved lawyers who have dropped in to watch (and there have been an unusual number) do not see how Goldwater can possibly win,” Time magazine wrote. “Even if he should, they point out, the appeals court might well overturn any verdict in his favor.”

But Peters said the trial and appellate courts found that Fact magazine executed a preconceived plan to attack Goldwater’s character. Among the smoking guns, he wrote in an email to The Post, were “source material that the editor and reporter knew to be false (or at least inherently improbable),” sources Fact quoted out of context, and “innuendo” added to some of the quotes, “all of which demonstrated the magazine’s state of mind and lack of good faith.”

So, in May 1968, a federal court jury sided with Goldwater, awarding him $75,000 — about $650,000 today — between $25,000 in punitive damages against Ginzburg and $50,000 against Fact magazine. The court concluded there is no immunity for “malicious smearing that deliberately or recklessly distorts facts,” The Post wrote in an editorial at the time. Ginzburg, it wrote, “poured out a torrent of abuse designed to indicate that Mr. Goldwater was emotionally unstable, paranoid, immoral and Hitler-like.”

The following year, an appeals court unanimously upheld the award. Ginzburg assailed the ruling, arguing it made a “mockery” of freedom of the press. “If a publisher cannot conscientiously discuss a presidential candidate’s psychological fitness for office, then freedom of the press is meaningless,” he said.

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In January 1970, the Supreme Court turned away an appeal in a one-line order, without issuing an opinion on the merits of the case. But two justices, Hugo L. Black and William O. Douglas, dissented, arguing the court should have taken up the case and reversed the appeals court.

“The grave dangers of prohibiting or penalizing the publication of even the most inaccurate and misleading information seem to me to more than outweigh any gain, personal or social, that might result from permitting libel awards such as the one before the Court today,” Black wrote.

RonNell Andersen Jones, a law professor and First Amendment scholar at the University of Utah’s S.J. Quinney College of Law, said one overlap between the Ginzburg and Fox News cases is news organizations’ providing a platform to untruthful sources.

“One big theme in the Goldwater case was that the publisher argued he didn’t consider whether the things he was publishing were true — that all he cared about was printing what the source said and accurately reprinting responses from others,” Jones wrote in an email. “The court made clear that this does not insulate you from responsibility for the false statements.”

In fact, the judge in the Dominion case, Eric M. Davis of Delaware Superior Court, told lawyers for Fox last week they cannot argue that it was guests who made the false statements, not Fox News hosts. The judge said Fox, as the broadcaster, is responsible for what it airs.

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Jones said that in some ways, the Dominion lawsuit goes beyond the Goldwater one, which relied on things like ignoring counterinformation and selectively omitting material in a biased way, to argue that the publisher had a high degree of awareness of the probable falsity. In the Dominion case, she wrote, “The plaintiff isn’t saying that we can infer a high degree of awareness of probable falsity; they’re saying we have evidence that they absolutely did know it was false and decided to move ahead with it anyway.”

Peters, the University of Georgia professor, said it was possible that Dominion could establish that Fox knowingly aired false statements, citing internal Fox News emails and text messages “that show, in different ways, the disconnect between what the Fox anchors and producers knew to be true and what they aired.”

The Goldwater saga wasn’t Ginzburg’s only brush with the Supreme Court on the First Amendment. In 1963, he had been convicted of obscenity, for mailing copies of his erotic-art quarterly publication, Eros, through the mail.

In 1966, by a 5-4 vote, the court ruled against him then, too.