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 — though 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.
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
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
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.
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,
The common law of libel relied upon by the court below as set forth in the New York cases was that courts will not strain to interpret commentary in its mildest and most inoffensive sense. Mencher v. Chesley, 297 N.Y. 94, 99, 75 N.E.2d 257, 259 (1947). The test applied to determine whether a passage is libelous was rather what the overall effect would be upon an ordinary reader. Everett v. Gross, 22 App.Div.2d 257, 254 N.Y.S.2d 561 (1st Dep't 1964). Since those cases were decided, however, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and many Supreme Court cases following it have recognized that the law of defamation is one which has enormous First Amendment implications and which may constitute an intrusion upon the prohibitions of that amendment. The law of defamation has in effect been rewritten in the light of the constitutional imperatives.
As to our role in reviewing a libel case, the First Amendment requires careful appellate review of the facts found at trial which have constitutional significance. As the Court said in New York Times Co. v. Sullivan, supra:
[T]he rule is that we "examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect." [Citations omitted.] We must "make an independent examination of the whole record" . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.
376 U.S. at 285, 84 S.Ct. at 728. See also, e. g., Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Fiske v. Kansas, 274 U.S. 380, 385-86, 47 S.Ct. 655, 71 L.Ed. 1108 (1927). It may be true that, as a general rule, we are permitted only to review findings of fact under the "clearly erroneous" standard when the factfinder is a judge. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2585, at 730-31, 734 (1971). But when interpretation of a communication in the light of the constitutional requirements is involved, our scope of review is to examine in depth the "statements in issue" and the "circumstances in which they are made." See New York Times Co. v. Sullivan, supra, 376 U.S. at 285 n.26, 84 S.Ct. 710; Davis v. Schuchat, 510 F.2d 731, 735-36 (D.C.Cir. 1975); Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). It is our duty to "re-examine the evidentiary basis" of the lower court decision, Time, Inc. v. Pape, supra, 401 U.S. at 284, 91 S.Ct. 633, in the light of the Constitution.
Before undertaking such review, however, we may say parenthetically that we reject appellant's suggestion that somehow Buckley is "libel-proof," the suggestion being based on our decision in Cardillo v. Doubleday & Co., 518 F.2d 638 (2d Cir. 1975), where we held that an habitual criminal could not recover in a libel action based upon references to him in a book about the Mafia. Mr. Buckley, despite the fact that
When we confront the constitutional law of libel, it is at once evident, as set forth first in New York Times Co. v. Sullivan, supra, that our primary concern must be the "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks . . .." 376 U.S. at 270, 84 S.Ct. at 721. From this premise proceeds the conclusion, made explicit in Gertz v. Robert Welch, Inc., supra, that "[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." 418 U.S. at 339-40, 94 S.Ct. at 3007. Our Constitution thus contemplates a bias toward unfettered speech at the expense, perhaps, of compensation for harm to reputation, at least where a public figure and a topic of enormous public interest, going to the heart of political discourse, is concerned. Id. at 339-43, 94 S.Ct. 2997. See generally Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300-01, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971); id. at 301 (White, J., concurring); Time, Inc. v. Pape, supra, 401 U.S. at 290-92, 91 S.Ct. 633; Monitor Patriot Co. v. Roy, 401 U.S. 265, 274-77, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 11-12, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); St. Amant v. Thompson, 390 U.S. 727, 731-33 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82-85, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); Curtis Publishing Co. v. Butts, supra, 388 U.S. at 146-53, 87 S.Ct. 1975, 18 L.Ed.2d 1094; Rosenblatt v. Baer, 383 U.S. 75, 79-86, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Here involved is an exchange, however heated, about systems of government, about democracy and totalitarianism and about the continuation of the freedom of religious worship; surely these are matters where the widest latitude for debate in the interests of the First Amendment must be furnished. As was said in Cantwell v. Connecticut, 310 U.S. 295, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), quoted in New York Times Co. v. Sullivan, supra, 376 U.S. at 271, 84 S.Ct. at 721:
Hence mere falsity and defamation is not enough. There must be "actual malice," as that term has been constitutionally defined, to permit recovery in this area, affecting as it does "the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Repeatedly the Court has said that ill will toward the plaintiff or bad motive, indeed, hatred, spite or desire to injure, are not the kind of "malice" that the New York Times Co. v. Sullivan test comprehends. National Association of Letter Carriers v. Austin, 418 U.S. 264, 281, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Rosenblum v. Metromedia, Inc., 403 U.S. 29, 52 n.18, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (opinion of Brennan, J.); Greenbelt Cooperative Publishing Ass'n v. Bresler, supra, 398 U.S. at 9-11, 90 S.Ct. 1537, 26 L.Ed.2d 6. The appellee, a public figure, must rather have demonstrated with convincing clarity not only that the appellant's statements were false, but that appellant knew they were false or made them
We will examine each of the three alleged libels separately in light of these First Amendment imperatives.
The first is that Buckley is a fellow traveler of fascism as those terms, "fellow traveler" and "fascism," are defined in Wild Tongues. The judge's view of the book was that "[i]t is clear that Buckley is charged with being a fellow traveler of the fascists." 394 F.Supp. at 925. But the book does not say this; this is an interpretation of the passage which is possible, but it is only one interpretation. Parenthetically it was also essentially Buckley's own interpretation
Beyond the ambiguity and looseness of the terms "fascist" and "radical right," the usage of the term "fellow traveler" in Wild Tongues, including the reference in the allegedly libelous passage, note 1, supra, is equally consistent with the appellant's interpretation
It can be seen, the moment that we are involved in ascertaining what meaning Littell's statement purport to convey, that we are in the area of opinion as opposed to factual assertion. While Buckley said he himself had not used the word "fascism" in 15 years, he had, for example, referred once in a published reply to a review of God and Man at Yale by McGeorge Bundy by saying that the word "fascist" fitted "with unusual precision Mr. Bundy's advocacy of irresponsible, irreproachable education by an academic elite." While he took the occasion of the trial to repudiate that usage, it further pointed up the looseness of the term. He had used the word "totalitarianism" similarly loosely, he admitted, in the past; Buckley himself put it accurately by saying that "As you know, a totalitarian [sic] can under certain circumstances be used metaphorically." It is not without significance that the very title of his column dealing with Littell, "Who Are the Totalitarians?" (erroneously referred to on oral argument as "Who Are the Authoritarians"), implied in a way that Littell was a "totalitarian." Moreover, when asked if there existed other fascist journals in addition to that of the American Nazi Party, Buckley gave the word a varying content: "I would say that, depending on whether you vest in the word fascism the primary motivation of anti-Semitism then the answer is yes." He referred to the magazine Common Sense as "openly fascist insofar as it is clamorously anti-Semitic." Again, "I guess what I'm trying to say is that, depending on whom I was talking to, I would call it openly fascist or not, depending on the requirements of precision." Compare note 7, supra. In reply to a question of the court, Buckley added that the term "fascism" and the term "fellow traveler" had acquired a "loose meaning" but in no case a nonpejorative
Necessarily such a spectrum and the place of a given commentator who takes a position in it involves to a significant extent an area of opinion.
Gertz v. Robert Welch, Inc., supra, 418 U.S. at 339-40, 94 S.Ct. 2997, made the distinction — crucial to the issue — between "false statements of fact" which receive no constitutional protection, and "ideas" and "opinions" which by definition can never be "false" so as to constitute false statements which are unprotected when made with actual malice. See Restatement (Second) of Torts, supra, § 566, comment c at 8-9. The district court recognized that the "boundary line" between fact and opinion is not a precise one, and acknowledged that "to call someone a fascist fellow traveler is perhaps not as concrete a statement of fact as to say that someone committed a theft. . . ." 394 F.Supp. at 943. Nevertheless the court found that
We find, to the contrary, that the use of "fascist," "fellow traveler" and "radical right" as political labels in Wild Tongues cannot be regarded as having been proved to be statements of fact, among other reasons, because of the tremendous imprecision of the meaning and usage of these terms in the realm of political debate, an imprecision which is simply echoed in the book.
We come then to the charge, as Judge Griesa puts it, that appellant's book "accuses Buckley of deliberately acting as a deceiver in the purveying of fascist material." 394 F.Supp. at 939. Appellant's book did not make such a direct statement in any form, but again, this is the district court's interpretation of the implication of the passage in note 1, supra.
The district court's interpolation of the libel of "deliberate deception in purveying fascist materials" is evidently the product of and dependent upon its construction of the earlier phrases "fellow traveler" and "functions as a deceiver," an interpretation we have analyzed and rejected as definitive in the context of this case, see text supra at n.8 & note 8. The district court noted Littell's denial on the stand of believing or meaning to say that Buckley was intentionally or deceptively purveying fascist material, and it is clear from its opinion that the source of the interpolation was not disbelief of Littell on this point. Indeed, the court called Littell's belief an "honest" one that there were instances when the National Review and Buckley's columns reflected information and points of view similar to those in some journals alleged by Littell to be "openly fascist." 394 F.Supp. at 939. Rather, the court's construction came solely, apparently, from its reading of Wild Tongues. Id. Given our earlier conclusion that the textual evidence supports a conclusion which is the opposite of the district court's as readily as it supports the district court's conclusion, see note 8 supra, we cannot say that the appellee proved with "convincing clarity," New York Times Co. v. Sullivan, supra, 376 U.S. at 285-86, 84 S.Ct. 710, that the second allegedly libelous statement in question was made in the form articulated by the district court, irrespective of its truth or falsity.
We find further that there was nothing libelous in the statement as it appears in Wild Tongues that the National Review and "On the Right" frequently "print `news items' and interpretations picked up from the openly fascist journals." The issue of what constitutes an "openly fascist" journal is as much a matter of opinion or idea as is the question what constitutes "fascism" or the "radical right" in Wild Tongues. See note 5, supra. Buckley himself admitted that he or the National Review had occasionally printed items and interpretations picked up from openly fascist journals even as he defined them, although "for the purpose of denouncing them." Surely the difference of opinion between Buckley and Littell regarding what is "approval" of what one calls "fascist" and the other calls "radical right" or "denunciation" of the same highly debatable categories cannot give rise to recovery by the one against the other in this case.
We have a different factual context, however, concerned in the third alleged libel. For here appellant's book says, "Like Westbrook Pegler, who lied day after day in his column about Quentin Reynolds and goaded him into a lawsuit, Buckley could be taken to court by any one of several people who had enough money to hire competent legal counsel and nothing else to do." This is an assertion of fact, namely that Buckley had lied about and implicitly libeled several people who, if they wanted to and could afford it, could take him to court for his lies. As opposed to the loosely definable, variously interpretable statements of opinion above referred to made inextricably in the contest of political, social or philosophical debate, in this instance appellant's comment makes a factual
While Littell suggested that he intended in the passage only to criticize Buckley's "goading, hounding and excessive pursuit" of many people, particularly of certain church men and church women Littell had in mind, as well as of Martin Luther King and Robert Kennedy, he also testified that he equated Buckley's frequent literary attacks as "falling within the general category of lying." Although he testified that he did not remember the specifics of the Pegler libels and did not mean to make a direct analogy between Pegler's libels and Buckley, what is critical is that Littell knew, as is evident from the passage itself, that Pegler's lies had been proved (by Reynolds) to be libels. Littell must have known that when he directly compared Buckley's statements with those of a proven libeler, the clear meaning to be inferred was that he considered Buckley to be a libeler like Pegler.
In response to Buckley's proof of the falsity of this accusation of libelous journalism, appellant's only rebutting proof of the truth of his charge was that Buckley had been sued in the past for libel; only one suit, however, had been successful, and that only by way of settlement.
In short, whatever might be said of a person's political views, any journalist, commentator or analyst is entitled not to be lightly characterized as inaccurate and dishonest or libelous. We cannot disagree with the finding of the court below that it is "crucial" to such a person's career that he
We pass then to the issue of damages. There was no proof of special damages — Buckley's reputation apparently suffered not at all from this book, which sold 941 hardcover and 8,226 softcover copies before it was voluntarily withdrawn from distribution when this action was begun. Thus he is entitled in any event to no more than one dollar in compensatory damages as found by the district court. The question is whether he is entitled to any punitive damages and, if so, how much. Appellant would have us take the view that punitive damages are subject to a different constitutional standard than compensatory damages, thereby abandoning our position in Goldwater v. Ginzburg, supra, 414 F.2d at 340-41. It may be that Gertz v. Robert Welch, Inc., supra, 418 U.S. at 350, 94 S.Ct. 2997, and its underlying concern lest punitive damages be used "selectively to punish expressions of unpopular views" especially with "the wholly unpredictable amounts" that can be awarded will ultimately lead the Supreme Court to hold that punitive damages cannot constitutionally be awarded to a public figure. But to date the Court has not so held, stating in Gertz v. Robert Welch, Inc., supra, only that punitive damages cannot constitutionally be awarded to a plaintiff who has met a standard of proof less demanding than "actual malice." We recognize that this is a somewhat higher standard of proof than that enunciated by Mr. Justice Harlan for the plurality in Curtis Publishing Co. v. Butts, supra, and it may be that Gertz rejects the assertion in Butts that "punitive damages serve a wholly legitimate purpose in the protection of individual reputation." 388 U.S. at 161, 87 S.Ct. at 1994. But absent clear word from the Court to the contrary, or an en banc, we are bound to abide by our own controlling decision in Goldwater, supra, and therefore must permit such an award in the appropriate case.
We agree, however, with the appellant that the award is excessive, particularly in the light of our reversal of the judgment in its two more important aspects. It does not appear, moreover, that the trial judge investigated Littell's own financial situation, other than to note his occupation, to determine the extent to which the damages awarded would be an effective deterrent, but we gather from the record that Littell either could not afford or did not want a lawyer to defend him at trial and appeared pro se. He has been a man of the cloth and a professor of religion and hence subject to such a person's notoriously low salary. He received only $500 from the book. Buckley has recovered something, we know not what, from the publisher by way of settlement. Although ordinarily we would remand the issue of damages for consideration of the appropriate amount of reduction, in the interests of justice we will exercise our authority to reduce the award ourselves to the more reasonable figure of $1,000 punitive damages. See 6A J. Moore, Federal Practice ¶ 59.05 at 59-68 (2d ed. 1973); see also Carroll v. United States, 133 F.2d 690 (2d Cir. 1943); 1 F. Harper & F. James, The Law of Torts § 5.30, at 472-73 (1956); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2820, at 127 & n. 75 (1973); cf. Staplin v. Maritime Overseas Corp., 519 F.2d 969, 974 (2d Cir. 1975).
Judgment affirmed in part and reversed in part in accordance with this opinion.
They are immediately followed by:
The district court, unfortunately, did not approach the task of interpreting the debatable meaning of the alleged libels in the light of the imperatives of "uninhibited, robust, and wide-open" debate, New York Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), but only discussed their implications once its search for the "proper interpretation" of Wild Tongues had ended. 394 F.Supp. at 925, 929, 931, 942.
Appellee's brief goes even further at 17 in quoting from Wild Tongues at 36 with emphasis added to suggest that the book refers to a fellow traveler as one whose "style is conspiracy and his stench is disloyalty"; in fact the phrase in context is referring to "the totalitarian demagogue," which is clearly meant to be a different figure from the fellow-traveling pseudo-conservative who is his "patsy." Again, the appellee's brief at 30 misquotes appellant's brief by saying "Indeed, as already noted, defendant formally admits in his brief that `he did not believe that what he said was true as regards the allegation that Buckley was a fellow traveler of fascism.'" In fact, appellant's brief at 13, correctly quoted theretofore in appellee's brief in the note, at 4, says: "Littell testified that he did not believe Buckley was a fellow traveler of fascism and that he never intended to say that in Wild Tongues."
The only journal agreed upon by both Buckley and Littell to be "fascist" was The Cross and the Flag. In addition to giving a non-fascist rating to some of Littell's fascist-rated materials, Buckley came up with some "fascist" rated journals which had not been so rated by Littell, namely, The Washington Observer, as "fascist in tone," and the Minutemen's On Target.
It should appear that this does not necessarily mean that for all purposes Littell equates the terms "radical right" and "fascism"; it is altogether possible that he meant that "some writers" use the lesser term "radical right" to refer to the greater evil, "fascism." In the exact context of the purported equation Littell points out, not without some historical justification, that "[t]he issue in the rise of Communist — and fascist-type parties is precisely that the ill-trained and half-formed baptized tend to be swept away, whereas genuine `confessing Christians' would stand fast to the truth." Id. Viewed more charitably, as the Constitution requires, the overall passage may be interpreted to mean that the "radical right" may tend to be subsumed in "fascism" as a particular movement takes shape.
We may note that this definition, however "correct" it may be, is significantly more narrow than the dictionary definition, the several accepted variations of which include at least one meaning which is extremely broad.
Webster's Third New International Dictionary at 825 (1971 ed.) (emphasis added).
When asked to define and describe "radical right" Buckley testified:
(Emphasis added.) It appears that in Buckley's view the "radical right" may be characterized as those who often embrace fascist proposals. The looseness of the terminology is further demonstrated by the court's question, later in the trial, "`Radical right' isn't as well defined as fascist is it?" and Buckley's definition a few moments later: "It's [the `radical right' is] mostly understood as a way to designate irresponsible, thoughtless, sometimes racist organizations of right wing agitators." (Emphasis added.) The term "radical right," this exchange suggests, is rather imprecise since it can be defined even by appellee only in the way it is "mostly understood" and in terms of such generalities as "irresponsible," "thoughtless" or "sometimes racist," or only circularly as consisting of "right wing agitators." We should suppose that more than one person uses the term "fascist" equally loosely and so as to overlap "radical right."
The district court relied on Littell's definition of "fellow traveling" in Appendix 2, at 131, of Wild Tongues as "to follow a `line' fixed by someone else in another place, while pretending to integrity — and independence of discussion and decision," in accepting appellee's contention that a "fellow traveler" means one who consciously adheres to fascist principles. That this general definition in the appendix is arguably directly contradicted by usage of the term in the context of explicit examples of "fellow traveling" in the text at 36 and in the passage in dispute at 50, is not mentioned by the district court.
Again, in another context Buckley allowed that "there is a certain democracy in language and usage tends to dictate its meaning."
Most of these allegations were properly dismissed by the district court.
While appellant argues that he was referring to Buckley as a libeler in the loose, pre-New York Times Co. v. Sullivan, in other words the nonconstitutional, sense, we think this would be permitting him to have it both ways.