Ginzburg Loses Again

"Did you seek to create a false impression of Senator Goldwater? Did you knowingly try to defame him? Did you knowingly say anything false about him?"

Time and again, in response to such questions from defense attorneys, Publisher Ralph Ginzburg and Editor Warren Boroson, of the now defunct magazine Fact, replied with an unqualified no. Both men insisted that their 1964 article depicting Barry Goldwater as a paranoiac, a latent homosexual and a latter-day Hitler, was simply fair comment on a presidential candidate's fitness for office (TIME, May 17). It was of no importance, they claimed, that only 20% of the psychiatrists they polled had even bothered to answer their admittedly loaded questionnaire. Nor did it matter that more than half of those who did answer disagreed with the diagnosis Fact published. Moreover, Ginzburg and Boroson did not think it wrong to alter some of the doctors' statements. "I thought it was eminently fair editing," said Ginzburg.

The jury disagreed. Apparently convinced that Ginzburg had demonstrated both malice and a reckless disregard for the truth, it awarded Barry $50,000 in punitive damages from the magazine, $25,000 in punitive damages from Ginzburg--and $1 in token compensatory damages from Fact, Ginzburg and Boroson.

Ginzburg was unchastened. Prepared with two press releases, one for a verdict in his favor, one for the verdict that the jury delivered, he immediately announced his intention to appeal. Whether he eventually wins or loses, one thing is certain: few individuals have been as influential as Ralph Ginzburg in pushing the courts toward a refinement of legal definitions.

Motive & Malice. Ginzburg began that process with the publication of a magazine called Eros and the sale of a book called The Housewife's Handbook on Selective Promiscuity. Decisions already in the law books told him that his products could only be proscribed if they had no redeeming social value-- and he seemed to be challenging the Government to prove they did not. The Supreme Court answered the challenge by surprising Ginzburg with a new rule: his methods of advertising and distribution, said the court, made him guilty of peddling pornography. It upheld a five-year prison sentence, which Ginzburg is still trying to get reduced.

This time it is his motivation that is in question. It is not easy to prove libel to the satisfaction of higher courts when public figures are involved. To make a charge of libel stick, the Supreme Court has held, "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." If he did, he was guilty of recklessness and malice, and, as a result, libel. Ginzburg may yet persuade an appeals court that he was neither reckless nor malicious.

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