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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A Tough Conclusion to the National Review Suit

Bio 3.016, 16.9

[Part 2 of 2]

Upon learning about Linus Pauling’s lawsuit, the National Review responded by deliberately provoking him, publishing an article in September 1962 titled “Are You Being Sued by Linus Pauling?” In answering their own question, the magazine’s publishers pulled few punches in reaffirming the stance that had so angered Pauling in the first place.

We are (or so his lawyers tell us). And so are other well-behaved papers and people throughout the country. Professor Pauling…seems to be spending his time equally between pressing for a collaborationist foreign policy, and assailing those who oppose his views and who question whether this country can simultaneously follow Dr. Pauling’s recommendations and remain outside the Communist orbit. Dr. Pauling is chasing after all kinds of people….His victory signal is the check or two he has wrested from publishers – who may indeed have libeled him, in which case they should pay up; but who may simply have been too pusillanimous to fight back against what some will view as brazen attempts at intimidation of the free press by one of the nation’s fellow travelers.

This public response made it clear that the National Review’s founder, William F. Buckley, had every intention of fighting the lawsuit to its end.

At the time, Buckley’s response probably seemed ignorant to Pauling since he had already won a settlement against the Bellingham (Washington) Herald and was in the midst of a complaint against the Hearst Corporation that would result in his receipt of $17,500 in June 1963.  A twist was soon to arise, however, that made a major impact on Pauling’s strategy as well as that no doubt contemplated by an untold number of other individuals used to living their lives in the spotlight.


New York Times vs. Sullivan

Pauling officially filed suit against the National Review on January 17th, 1963. However, Pauling’s case against the magazine was delayed for over three years, until March 1966, for a number of reasons: the need for information gathering; Pauling’s receipt of the Nobel Peace Prize in December 1963; and Buckley’s running for mayor of New York City in 1965. This delay proved to be crucial as, in 1964 a landmark Supreme Court case, New York Times v. Sullivan, was decided.

New York Times Co. v. Sullivan is the United States Supreme Court case that ultimately enabled the media to comment freely on public officials without worry of being sued for libel, except in cases of provable “actual malice.” The decision established the definition of “actual malice” as a publisher knowing that a published statement was false or acting in reckless disregard of its truth or falsity at the time of printing.

From there, the burden of proof in a libel case was outlined as falling on the plaintiff, who was charged with establishing “actual malice” on the part of the defendant. Doing so is generally fairly difficult as there is often little evidence documenting the details of which a defendant was or was not aware. The Court handed down this ruling in order to protect the First Amendment and it proved to be hugely influential. Aside from cases like Pauling’s, New York Times v. Sullivan made a significant impact on the Civil Rights Movement as, prior to the case, media in many southern states were wary of reporting on civil rights abuses for fear of libel action.

The New York Times decision did allow for future case-by-case determination of identifying parties subject to the burden of proving “actual malice.” Importantly, the possibility of extending the Times ruling beyond public officials seems to have been suggested first (or at least very early) by the United States Court of Appeals for the Second Circuit in Pauling v. News Syndicate Company, tried just four months after New York Times case.

Decisions made in Pauling’s lawsuit against the News Syndicate Company helped to establish a precedent of extending the New York Times v. Sullivan ruling from public officials to public figures. If his scientific work hadn’t done the trick, by 1964 Linus Pauling had certainly made himself a public figure through his prominent involvement in the international peace movement, to say nothing of two Nobel Prizes. In determining that the Times ruling applied to him as well, the courts began to expand the restricted definition of libel to parties outside of public officialdom, an evolution that proved very damaging to Pauling’s litigious streak.


New York Herald Tribune, April 20, 1966.

New York Herald Tribune, April 20, 1966.

In March 1966 the National Review case finally went to trial in the New York State Supreme Court, but at this point Pauling had lost essentially all of his legal traction. The courts had already begun to apply the New York Times ruling to public figures and Pauling was unable to prove the new definition of “actual malice” against the National Review. As such, it came as no surprise when, in April, the New York court held that

The constitutional guarantees [of the First and Fourteenth Amendments] require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or not.

Although Pauling was not a public official, the incident

would seem to favor extending the doctrine of that case at least to a private person who ‘has thrust himself into the vortex of the discussion of a question of pressing public concern.’…It is clear that if any private citizen has, by his conduct, made himself a public figure engaged voluntarily in public discussion of matters of grave public concern and controversy, Dr. Pauling has done so. Finally, the criticisms made of him in the alleged libelous articles are not criticisms of his private life; they are criticisms of his public conduct and of the motives for that public conduct.

Pauling understood the legal precedent weighing against him but disagreed with the Supreme Court’s stance on New York Times v. Sullivan – in effect, he felt that the tide of legal opinion weighing against him was itself fundamentally incorrect. Likewise, he objected to the court’s definition of “actual malice,” writing

I believe that the new criterion, as stated above, should not be upheld by the Supreme Court of the United States, because it places a reward on irresponsibility. I believe that the utterances of false and defamatory statements should be required by law to assume some responsibility, even though the false and defamatory statements are made about public officials or public figures.

Bruised by his National Review loss and disappointed by the New York Times verdict, Pauling actually contacted another lawyer, Louis Nizer, in hopes of finding a way to reverse the Supreme Court’s thinking on the standard of libel for public figures. Nizer, while pessimistic, agreed to initiate an attempt to get the public figures extension of the New York Times case overturned. Indeed, his firm appealed the case for three years, but ultimately conceded to the dismissal of its case in 1968.

In the wake of the bitter National Review saga, Pauling ended up either losing or abandoning all of the other cases that he had in motion. His legal power had been taken away by New York Times vs. Sullivan and, though often provoked over a lifetime that remained controversial, he never again mounted another libel case.

National Review, May 3, 1966.

National Review, May 3, 1966.