In the late 1950s, a new conservativism – in the form of William F. Buckley’s National Review and of Senator Barry Goldwater – emerged. I trace Goldwater’s response to the Fact magazine case following his 1964 defeat. I show how shocked he was by Fact, and his motivations for bringing a libel suit: a wish to protect future politicians and to counter what he saw as unethical forms of comment. Goldwater was ahead of his time and ahead of his conservative colleagues (Buckley included) in appreciating the political value of lawsuits. I also document the dynamic relationship between Goldwater and his supporters, and the American Medical Association and the American Psychiatric Association, with whom he had a de facto working alliance. Drawing on the trial transcript and on Goldwater’s extensive archives, I narrate the legal contest in all its drama. I provide political and social context, including the impact of the Vietnam War on the debates over ethics and politics but also the role of the media in shaping public opinion on the war and on the case. I also document an effort by Ginzburg’s Avant Garde magazine to survey psychiatrists about Lyndon Johnson’s fitness for office in 1968.

In this chapter, I show how the infamous Fact magazine episode of 1964 began. What motivated Ralph Ginzburg to publish his “survey” of psychiatrists and to create a psychological profile of Barry Goldwater? I reassess Ginzburg’s controversial but now almost forgotten career as a provocateur and alleged pornographer (a charge that conservative politicians made loosely, based on his conviction for distributing the highbrow Eros magazine). Ginzburg remained committed to free speech and journalistic freedom in an era when television, newspapers, and direct mail advertising were flourishing. But was the survey ethical? Was Goldwater mentally ill and a danger to the country, as Ginzburg and many psychiatrists claimed? I make use of rarely explored sources, including the transcript of the Goldwater v. Ginzburg libel case, Ralph Ginzburg’s papers, and an original interview with Fact managing editor Warren Boroson. In an era when the Supreme Court decision in New York Times v. Sullivan had dramatically loosened libel law and established a new standard for libel called “actual malice,” Ginzburg had every reason to believe he might prevail in the courts, and in the court of public opinion.

The losing side in Goldwater v. Ginzburg appealed, then asked the Supreme Court to review the appeals court verdict. The decision to file writ of certiorari (a formal request for the Court to review the case) was not an empty exercise. In the wake of New York Times v. Sullivan (1964), no one knew exactly how the new doctrine of libel – “actual malice” – would be applied or what its limits might be. This chapter looks at how the Supreme Court viewed Ralph Ginzburg and Fact magazine and shows how at least some of the justices reasoned about hearing the case. I trace Ginburg’s hope that he could loosen libel law at the highest level and Goldwater’s hope that he could protect future public figures from libel even under the dramatically loosened standard represented by Sullivan. The Court’s decision was the occasion for some of Justice Hugo Black’s most eloquent words. As I show, throughout the process the media and Goldwater’s supporters took a keen interest in the outcome, just as Goldwater had hoped.