The New York Daily News Lawsuit: A Tangled Web

dailynews-1964

[Part 2 of 2]

In the wake of the May 1963 failure of Linus Pauling’s first libel trial versus the New York Daily News, Pauling received a letter from his secondary attorney in the case, J.P. Tonkoff.  In it, Tonkoff wrote

It was a pleasure to represent you, even though the outcome was disastrous; and I still insist that the disaster was brought about by stupidity and nothing else.

In using the word ‘stupidity’ Tonkoff was referring to the court tactics deployed by Pauling’s primary attorney in the case, Francis Hoague. And in addition to his anger over his perceptions of Hoague’s incompetence as a lawyer, Tonkoff also noted that Hoague had shorted him on his compensation for out-of-pocket expenses incurred during the trial. Indeed, Tonkoff suspected that Hoague might have pilfered some of the funds that Pauling had meant to be directed toward Tonkoff.

Around the same time, Francis Hoague also wrote a letter to Pauling about the outcome of the court case. In it, he conceded partial culpability for the poor result.

I am deeply regretful that the Daily News case did not come out in your favor. I know that it could have been tried better than it was….Whether the case was badly tried or satisfactorily tried, I put my best efforts into it; and whatever mistakes I made were not from lack of concern and thought on my part. I certainly was fully aware that this was an important case not only to you but to the issue of freedom of speech and association and to the peace movement….Of one thing I am sure, and that is that whatever caused defendant’s verdict it was not due to any failure or shortcoming on your part….Despite the unhappy ending, it has been a truly wonderful experience for me to have been associated with you and Ava Helen in these two cases over the past two years. You are the most moral and courageous people I have ever known.

In June, Tonkoff wrote another letter to Pauling, expressing mounting discontent with his colleague.  By now it was clear the relations were heading due south between the two lawyers.

I am convinced that Hoague is incompetent to be in charge of your case. If Hoague believes that this is a libelous statement he can bring an action against me, and I will establish truth of the statement beyond a shadow of a doubt….I unhesitatingly state to you that the further away Hoague is from the court room when this case is retried, the better off you are going to be. Personally, I am certain that the failure of the court to inform the jury that the publication was libelous per se is reversible error.

That month, Francis Hoague motioned for new trial; a motion that was rejected. The decision upset Hoague and at that point he decided to turn over responsibility of the case to Eleanor Piel, which was Pauling’s wish as well.


Pauling notes re: expenses incurred by the Daily News case.

Pauling notes re: expenses incurred by the Daily News case.

Meanwhile Pauling, likely spurred by his correspondence with J.P. Tonkoff, became suspicious of his past financial dealings with Francis Hoague. After studying his records, he found that Hoague had underpaid him from the settlement of the Bellingham case and that Hoague had indeed not supplied sufficient funds to Tonkoff for out-of-pocket expenses. After finally receiving the full Bellingham settlement money, Pauling decided to pay Tonkoff’s balance directly, as Hoague refused to release additional funds to Tonkoff and insisted that Tonkoff was lying.

As all of this was playing out, Tonkoff wrote a number of letters to Hoague, CC’d to Pauling, that voiced his frustration. In one response, Hoague wrote to Tonkoff

I do not know what your full purpose is in sending me these long written tirades with a copy to Dr. Pauling. I am certain that one of your purposes is to blacken me as much as possible in Dr. Pauling’s eyes. This is neither decent nor ethical, and you know it.

He also asked that Tonkoff withdraw his involvement in the case.

Concurrently, Hoague and Pauling began to discuss an agreement to transfer responsibility for the case over to Eleanor Piel. Hoague suggested that he receive one-third of 50% of the net settlement if they won, and that Piel receive two-thirds of 50%. Pauling would cover all legal costs and out-of-pocket expenses if they lost.

Around this same time, Tonkoff wrote back to Hoague concerning his suggestion that Tonkoff withdraw from the case.  As one might expect, Tonkoff didn’t agree with the idea.

Now if you think for one moment that after I supplied to editorial upon which the case was brought, and after drawing the complaint upon which the action was tried, associated New York counsel who appeared because of their feeling toward me and not toward you and who were responsible for getting the case at issue, preparing the instructions which I know you couldn’t possibly prepare, taking town days out of my office and listening to you butcher this case, plus a substantial amount of out-of-pocket expenses and, among other things, furnishing free transportation to you to New York, that I will resign from this case as counsel because you ask me to, you are sadly mistaken. If Dr. Pauling, after he has an opportunity to examine, investigate, and determine the verity of the foregoing facts, decides to retain you as counsel, I demand that he personally advise me of his decision, and then we will go from there.

In the letter, Tonkoff also stated that Hoague was attempting to overcharge Pauling for his handling of the case, as the normal litigation fee for libel suits was one-third of the settlement, not half. Pauling agreed with Tonkoff that 50% of the settlement was too much.

As the situation continued to get messier, Pauling moved in and made a final decision. He wrote to Hoague

I am not satisfied with the handling of the Daily News case. I feel, of course, that I share in the responsibility for its outcome. I relied upon you, but I feel now that it might have been wise for you to have discussed the matter of handling the case with me, in New York, and perhaps to have discussed the differences between you and Tonkoff….I propose for your consideration that your withdrawal be on the following basis. You will give up all claim to any share in any sum obtained by settlement or by decision in court, after the agreement to withdraw as my counsel has been made.

In the letter Pauling also stated that Tonkoff should likewise withdraw from the case and that Hoague withdraw his financial understanding with Eleanor Piel.

Pauling then wrote a separate letter to J.P. Tonkoff personally asking him to withdraw from the case. Tonkoff and Hoague both agreed to Pauling’s requests, at which point the Daily News case was completely transferred over to Piel.


dailynews-1965

In July 1963, Eleanor Piel compiled and formally submitted an appeal to the lower court ruling of Pauling’s libel suit versus the Daily News. One year later, the Circuit Court of Appeals confirmed the original jury’s verdict. Piel then filed a Petition for Rehearing, but in the next month, August 1964, this petition too was denied.

Undaunted, Piel and Pauling then decided to file a petition for certiorari with the Supreme Court. But in January 1965, the court decline to hear the case.

Indeed, this case and others like it had very little hope for success following the Supreme Court’s 1964 ruling in New York Times Co. v. Sullivan, which set a higher standard for libel of public figures and made it nearly impossible for individuals like Pauling to successfully pursue grievances of this sort. And so ended a decidedly messy chapter in Pauling’s long and complicated history of court action.

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The Strange Saga of the New York Daily News Lawsuit

New York Daily News opinion piece of September 2, 1961.

New York Daily News opinion piece of September 2, 1961.

[Part 1 of 2]

As readers of this blog know, Linus Pauling was a prominent public figure who became especially well-known for his campaign against nuclear bomb testing. The “Appeal by American Scientists to the Governments and Peoples of the World,” circulated by Pauling and his wife in 1957 and 1958, garnered the signatures of over 11,000 scientists from around the world, each of them condemning the detonation of nuclear weapons in the atmosphere. The petition received a great deal of attention and ultimately led to Pauling’s receipt of the Nobel Peace Prize in 1963.

The petition also came about in the midst of the Cold War, and Pauling’s protests made many Americans uncomfortable and even angry. Much of the public saw his efforts to work with communist countries as evidence of communist sympathies and, by extension, betrayal of the United States. Many newspaper editors around the country took a similarly dim view and attacked Pauling in print for his actions. Naturally, Pauling worried about the impact that articles of this sort might make on his reputation, and he chose to fight back against numerous media sources through libel lawsuits.

On September 2, 1961, the New York Daily News published an editorial titled “Two Johnny Come-Latelies” that criticized Pauling’s anti-testing activism and mocked him for his efforts in light of the resumption of bomb testing in the Soviet Union. The piece suggested that

For years, a couple of semi-prominent American loudmouths have been agitating against nuclear weapons and weapon tests – the best defense the West has against Soviet Russian and Chinese Red manpower. [Norman] Cousins and Pauling now profess to be horrified by Khrushchev’s announcement of Soviet resumption of nuclear weapon tests…But all that Pauling has done about it is to record a plea to his friend in the Kremlin to reconsider…It’s nice to have these two on the American side for once, however belatedly and lukewarmly. But their ideas on meeting the Khrushchev threat are no better than their longstanding proposals that the West cripple itself.

Reader Louis B. Settner wrote to Pauling informing him of the opinion piece and likewise wrote a letter to the editors of the Daily News that defended Pauling and objected to the editorial’s tone. The Daily News refused to publish Settner’s letter, but the protestations to the piece were far from over.


In October, Pauling responded to Settner, writing that the actions of the editors

are shocking, and of course it is shocking that the Daily News would not publish your letter. The captive press in the United States is a great danger to civilization. I am pleased to tell you that I probably shall institute suit for libel against the Daily News, on the basis of the defamatory editorial.

Francis Hoague, Pauling’s Seattle-based lawyer in a concurrent libel lawsuit filed against the Bellingham, [Washington] Herald, offered to take on the case for a fee of one-third of any settlement reached out of court or for half of a settlement arrived at in court. Hoague had already taken care of most of the preparation required for the Bellingham case, which was filed in response to editorials published in late November and early December 1960, and likely saw himself as a natural fit for this new complaint.

The case against the Bellingham paper, one of Pauling’s first lawsuits, was instigated in early 1961 and proceeded with relative rapidity. The dispute reached a settlement out of court in April 1962 with Pauling agreeing to damages of $16,000 plus a retraction. As it turned out, this was one of only two libel lawsuits, out of eight filed in total, that ended in Pauling’s favor.


List of East Coast-based character witnesses supplied by Pauling to his lawyer, Francis Hoague.

List of East Coast-based character witnesses supplied by Pauling to his lawyer, Francis Hoague.

Throughout 1962, Pauling’s team worked gather information and depose witnesses. As had been the arrangement in Bellingham, Francis Hoague worked on the Daily News case in collaboration with another more experienced lawyer, J.P. Tonkoff, though Pauling’s contract was technically with Hoague alone, and not Tonkoff.

Hoague and Tonkoff had worked well together on the Bellingham case, but they became very frustrated with each other as work on the Daily News complaint moved forward. Over time, Tonkoff came to believe that Hoague was incompetent as a litigation lawyer and expressed a wish that he were in charge of the suit, rather than Hoague.

In February 1963, the Daily News suffered a damaging blow in the form of a $201,000 verdict against the paper for having libeled a different plaintiff. This particular suit was filed by Paul J. Kern, a project manager for the New York City Housing Authority, whom the Daily News had declared to be a communist. Eleanor J. Piel, Kern’s high-profile lawyer, was a key player in the success of Kern’s suit.

Pauling’s complaint first came to trial in May 1963. Pauling’s chief counsel, Francis Hoague, included in his tactics a large number of character witnesses who spoke positively of Pauling’s character, and ultimately this strategy backfired. One of the character witnesses, chemist (and future Nobel laureate) Martin Karplus, spoke of the trial and the verdict in a 2013 oral history interview conducted by the Oregon State University Libraries.

…it was in New York, the trial, and so I went down and did testify for him, as did various other people. And then, as I remember it, he actually lost the case because the judge felt, ‘look, if you’re going to have all these people testifying for you, a libel suit really doesn’t make any sense’…and the judge said this, I remember, was that he had all these sterling witnesses, so he wasn’t harmed by what they [the Daily News] wrote.


At the end of May, Pauling met with Francis Hoague, to inform him that he would be appealing the decision and that Eleanor Piel was going to take over the Daily News case. As Pauling documented in a note to himself

I mentioned that I thought that Mrs. Piel, with her experience and knowledge of the New York courts and the opposing lawyer, could do a better job than Mr. Hoague himself. I pointed out that I felt that he was not tough enough for Mr. Carter and the New York courts.

As we’ll see next week, the situation became rather strange at this point.

The Bellingham Suit

bellingham-newsclip

From the years 1960 to 1968, Linus Pauling either threatened or actually instigated several libel suits against various newspapers and media outlets throughout the country, demanding retractions and financial compensation for defamatory statements issued about him. The damaging statements usually stemmed from Pauling’s hearings before the Senate Internal Security Subcommittee in 1960, during which the inquisitors grilled Pauling about his activities in the peace movement, especially his 1958 nuclear bomb test petition, and repeatedly implied that he was a communist sympathizer.

Pauling was not a communist and, in fact, had led a large research effort on behalf of the U.S. war effort during World War II, work for which he earned several commendations, including the Presidential Medal for Merit. So naturally, Pauling was very frustrated when newspapers around the country began to question his loyalty to the US, and he became increasingly alarmed as his reputation was attacked amidst the heightened tensions of the Cold War era.

One of the first newspapers to provoke legal action from Pauling was the Bellingham, [Washington] Herald. In late November and early December 1960, shortly before and after Pauling gave a talk at Western Washington College, the paper published five letters to the editor attacking Pauling. The letters contained factually incorrect information, such as the suggestion that Pauling had appeared before the House Un-American Activities Committee (rather than the Senate Internal Security Subcommittee) and that he was a communist. The letters also accused him of other communist-related activity that had never been proven by the Senate Internal Security Subcommittee.

In early December, Pauling wrote to the newspaper demanding a retraction of the letters that it had published. The Herald responded quickly, printing a note explaining that they were “unable to substantiate the claims” of one letter published on December 2nd by Martin Gegnor.  That stated, the editors ended their note by declaring that “it is the policy of this newspaper to give free expression to our readers.” They likewise noted that the Herald, in its December 2nd issue, had also printed a long letter from the wife of the president of Western Washington College extolling Pauling’s scientific achievements.

Pauling was not satisfied with the Herald’s response and wrote a second letter to the paper that was published on December 20th. This letter went to great pains to point out how each defamatory statement issued about him was untrue. Although the Herald published Pauling’s letter, they did so while emphasizing that it was his viewpoint and that the paper did not explicitly apologize for its previous actions. This upset Pauling, who suspected that Martin Gegnor was not actually an ordinary resident of Bellingham, Washington but was instead a pen name for another author, possibly a journalist at the newspaper. (A suspicion that was, many years later, proven correct.)


ubc-students-lp

Pauling decided to sue the Bellingham Publishing Company and the letter writers for libel. He later dropped his case against the individuals and decided to focus entirely on the newspaper, which he sued for $500,000. Pauling complained that the allegations in the letters were untrue and that he had no communist tendencies. He also claimed that damages to his reputation might result in the loss of royalties from his three textbooks, which amounted at the time to about $40,000 per year.

In December 1961, the judge overseeing the suit ordered Pauling to release the names of the people who had helped to circulate his nuclear bomb test petition. This very information had been requested of Pauling by the Senate Internal Security Subcommittee in the summer of 1960. Rising contempt of Congress, Pauling had refused to turn it over, fearing that the reputations of his associates would be smeared once their names came to light. This time around, Pauling looked to his Seattle-based lawyer, Francis Hoague, for advice. Hoague replied

It seems to me that you face a dilemma. On one hand, if you dismiss your action against the Bellingham Publishing Company the same ploy will be used in all three remaining libel actions [since instigated by Pauling]. Furthermore, this successful defense to this libel action might lay you open to a rash of defamation, since the defamers would know that they had a defense to any suit brought by you. Also, your dropping of this action, and I assume of the other three actions, would be used by certain columnists to indicate your admission of the truth of the accusations.

Pauling decided to disclose the names of his fellow petitioners, in spite of his desire to protect them from potential federal investigation. The list totaled about 650 names, including approximately 450 Americans.

petition-submitters

Page 1 of Pauling’s list of those who helped to circulate the bomb test petition.


In January 1962, before the case came to trial, Pauling offered the Bellingham Publishing Company a settlement: $75,000 in damages plus a retraction. After negotiating for four months, the parties agreed to a penalty of $16,000 plus a retraction. The settlement was likely close to what Pauling would have received through the full prosecution of a successful suit. The outcome also allowed him to spend less in legal fees, and was hoped to deter other news sources from libelous actions of a similar nature.

The Bellingham Herald published its retraction in May 1962, writing

In late November and early December, 1960…this paper published in its Letters to the Editor column five letters in which the writers attacked Dr. Pauling. These letters contained untrue statements which, if believed, would have reflected on Dr. Pauling’s integrity and loyalty to the United States of America. These defamatory letters were published in error in reliance upon the writers, without investigation by the paper. The Herald takes this opportunity to state publicly that it regrets that it published these statements reflecting on the integrity and loyalty of Dr. Pauling.

Three years later, in April 1965, Francis Hoague, Pauling’s Bellingham case lawyer, wrote a letter to him noting the impact that the suit had made in the community. In his observation

Up until the time when you sued the Bellingham Herald, the John Birch Society had a firm grip on city and school affairs in Bellingham and virtually no one dared to challenge them…Your suit was the turning point in this matter, and since then the John Birch Society has had relatively little influence and can be quickly and effectively challenged when necessary. Even the Bellingham Herald has shown a change of heart in liberal matters…so your efforts in that respect were not in vain.

Thirteen years after that, Pauling engaged in a conversation that makes for a compelling coda to the Bellingham story.  In a note to self dated February 27, 1978, he wrote

Mrs. Helen Mazur talked to me today. Her husband is Professor of Demography in Western Washington University, Bellingham….

She and her husband arrived at Bellingham just at the time that I came to give the Commencement lecture.  We learned when we arrived there that some derogatory material had appeared in the Bellingham Herald. I sued, and the case was settled out of court with payment of $15,000 [sic] to me.

Mrs. Mazur said that when she arrived in Bellingham just at that time she met the president of the local bank. For some reason that she does not understand he began talking to her about me, and said that he had gone to the editor of the newspaper to suggest that something be done. She says that he said that he and the editor had written a letter attacking me, which was then published in the Bellingham Herald. It was this letter, with a false name and address, that was the basis of my suit. She also said that the newspaper borrowed the $15,000 from the banker’s bank in order to make the payment to me. I had not known that the newspaper editor and the banker had conspired to write this letter.