Gore Vidal

by Fred Kaplan

  Hayes was stunned. Buckley’s suit against Vidal seemed an unreasonable attempt to prevent his having his say in an essay that appeared to Esquire to meet reasonable standards of truth and fairness. Was this also a message to Esquire? Would Esquire also be sued if it printed Vidal’s essay? Hayes had to begin to consider what had seemed to him inconceivable. Vidal also had threatened to sue Esquire if it published Buckley’s article. But his intent was to condition the withdrawal of the threat on Esquire’s publishing his as well, since Buckley was pressuring the magazine to publish only Buckley’s. When Vidal’s revision met Esquire’s conditions, his threat to sue was moot. He said nothing more about it. Hayes had believed that Buckley’s threat was also moot. In general, he had trusted in what he believed to be Buckley’s sense of fairness, among other reasons because he genuinely liked and admired him. As a journalist-editor, Hayes had assumed that in the end Buckley shared his view that controversial articles that met his own profession’s standards of interpretive fairness should not be prevented from being published by recourse to legal pressure. If both parties were to have their say, what better jury and judge than the court of public opinion? But a week before he learned that Buckley was suing Vidal, Hayes had had a preparatory jolt. The New York magazine world buzzed with gossipy tremors. On May 6 and 7 Buckley had sent telegrams to twenty magazine publishers: “LAST AUGUST I WAS DEFAMED ON NETWORK TELEVISION BY MR. GORE VIDAL. MR. VIDAL HAS NOT RETRACTED HIS LIBEL OR APOLOGIZED TO ME. ON THE CONTRARY, HE HAS SOUGHT TO GIVE RENEWED CURRENCY TO THAT LIBEL AND TO LAUNCH OTHERS, TO WHICH END HE SUBMITTED A MANUSCRIPT TO ESQUIRE MAGAZINE WHICH ESQUIRE DECLINED TO PUBLISH BECAUSE IT WAS DEFAMATORY AND UNTRUE. MR. VIDAL’S ACTIVITIES HAVE LEFT ME WITH NO OTHER RECOURSE THAN TO A LAWSUIT, AND ACCORDINGLY I HAVE FILED SUIT AGAINST MR. VIDAL FOR FIVE HUNDRED THOUSAND DOLLARS IN DAMAGE. I ADVISE YOU OF THESE PROCEEDINGS BECAUSE I HAVE BEEN INFORMED THAT MR. VIDAL IS BENT UPON CIRCULATING CHARGES ABOUT ME WHICH ARE ABSOLUTELY UNTRUE. I WRITE TO REGISTER MY WILLINGNESS TO COOPERATE WITH YOU IN ANY WAY … SO AS TO GUARD AGAINST YOUR JOURNAL’S INADVERTENTLY CIRCULATING MR. VIDAL’S DEFAMATORY MATERIAL.” In the telegram to Playboy he added, “I HAVE JUST BEEN INFORMED THAT IN THE JUNE PLAYBOY YOU PLAN TO PUBLISH STATEMENTS BY VIDAL WHICH I CAN PROVE TO BE DEFAMATORY. I REQUEST OPPORTUNITY TO PROVE TO YOU THAT SAID REMARKS ARE FALSE SO THAT YOU MAY ELIMINATE THEM FROM THE ISSUE.” A general interview with Vidal that appeared in the June Playboy, one of a series of interviews with celebrities that the magazine published regularly, made some of the same points about Buckley that were in his rebuttal article for Esquire. Playboy’s editor-publisher, Hugh Hefner, was not intimidated by Buckley’s telegram. “Speaking as one publisher to another, I must tell you that I do not regard Vidal’s remarks as published in the June issue as actionable. They must be read in the context of the well publicized dispute between the two of you. Indeed a contemporary piece concerning either of you which did not in some measure reflect the views of the subject toward the other would have to be considered incomplete.” In fact, Esquire had not declined to publish Vidal’s article. It had simply said that it could not publish it without revision. The same had been said of Buckley’s. By the time of Buckley’s twenty telegrams, Vidal’s revision had been approved by Esquire’s lawyer. But apparently, despite having given his conditional go-ahead to Hayes, Buckley still had not accepted that Esquire would publish it. When he incorrectly got it into his head that Vidal was trying to find an alternative publisher, he precipitously sent the telegrams, the result of which was to make twenty influential people curious about what it was he so desperately wanted to suppress.

  Hayes soon learned, in fact, that Buckley still hoped that Esquire would publish his article but not Vidal’s, or at least that Esquire was still susceptible to pressure from him. This worrisome scenario was dramatized in a semi-threatening letter in mid-June: “I am sure there is practically no chance at all that Fate will require me to sue Esquire, but I must remind myself that the last exchange I read between Williams and Medina had Williams contending that one version of Vidal’s piece was libelous with Medina disagreeing. And the further datum that I would not be shown V’s piece as finally accepted, nor even advised as to whether a version has been accepted. Understand, I am quite certain that there will be a happy ending to all this….” On July 17 the August issue of Esquire, with Buckley’s article, appeared on the newsstands. In early August, with Gore’s essay about to appear in the September issue, or perhaps with an advance copy in hand, Buckley asked John Kenneth Galbraith’s advice. Galbraith had read Buckley’s essay, perhaps Vidal’s. “Your Esquire piece, as always, is lively … and in spite of the incredible length, it is very interesting,” he wrote to Buckley. “But it lacks plausibility…. You are talking about a staged row between two highly experienced controversialists…. That was ABC’s intention when they engaged you. And there is further and devastating weakness in your case when you concede that you first refused and then accepted Vidal. Obviously you accepted a risk of which you were aware…. As entertainment you perhaps could pursue this controversy. An an issue of justice you simply cannot. That holds especially for the courts…. Were you the literary cynosure of the SDS [Students for Democratic Society] my advice would not be different except as I might suppose your instinct for self-preservation to be less developed.” On August 18 the September Esquire, with Vidal’s article, “A Distasteful Encounter with William F. Buckley,” appeared on newsstands. That same day Buckley’s lawyer filed suit in United States District Court against the magazine. It demanded $1 million in compensation for emotional and financial damage done to the plaintiff. The charges were essentially the same as those against Vidal. Vidal had willfully defamed the defendant by charging that he was a Nazi, a homosexual, a war lover, and an anti-Semite. Esquire had conspired with Vidal by encouraging him to write the article, guiding him in its construction, and providing a forum for its publication.

  For the next three years the lawyers flourished in a complicated legal dance. Vidal immediately instituted the obligatory countersuit, the purpose of which was to put pressure on Buckley to drop his. The charge was that Buckley had attempted to infringe his right of response. When Buckley’s lawyer asked the court for summary judgment, the court dismissed Vidal’s nuisance suit, which did not surprise any of the participants. As far as the law was concerned, Buckley had every legal right to pressure Esquire not to publish Vidal’s rebuttal. Whatever Esquire’s and Vidal’s view of Buckley’s ethics, it was not a legal matter. Buckley’s libel suits against Esquire and Vidal were the main show. Each was a separate suit, though it was clear that a decision in one would have relevance to the outcome of the other. Legal maneuvering, naturally, created long delays. Both Buckley and Vidal soon changed lawyers, each dissatisfied with his representation. C. Dickerman Williams was replaced in 1970 by Charles Rembar, a sophisticated attorney well known for his defense of a civil-liberties suit in which the free-speech issue had been paramount. An accomplished man, small, thin, handsome, one of the best-known civil-liberties lawyers in New York, he had written interestingly about his accomplishments. Rembar’s cousin, Norman Mailer, had recommended him to Buckley, a reminder to Gore of how chummy Mailer and Buckley had been at the 1968 Democratic convention and corroboration of his view that Mailer had become an enemy. Vidal’s own lawyer, William Fitelson, had proved as unsatisfactory as Dickerson had proved to Buckley. From the start Gore felt he was being represented erratically by an office attracted more to glamour than to legal legwork. In New York, in early February 1972, Vidal was subjected to a long session with Buckley’s lawyer and a stenographer. Rembar was shrewdly, relentlessly effective, intelligent and well informed about literary and linguistic matters in ways that most lawyers are not. He grilled Vidal for hours, including a sustained attempt to get him to define the word “homosexual,” during which Vidal provided self-protective answers, including a great deal of purposeful smoke screen in which he asserted that there was no such thing as a homosexual or a heterose
xual, only homosexual acts and heterosexual acts. In the end Gore thought he had done well, though he was not happy with his representation by Fitelson’s office. When Richard Poirier was subpoenaed to testify about Myra Breckinridge, Fitelson advised him to disregard the subpoena. Poirier saw that as a likely route to a jail sentence for contempt. In March 1972 Vidal replaced Fitelson with Edward Weisl of Simpson Thacher & Bartlett, recommended by Gore’s half-sister Nini, who knew Weisl socially. The son of one of William Randolph Hearst’s lawyers, an intelligent, shrewdly combative inquisitor, Weisl eagerly took on the case. In the view of Fitelson’s successor, “the judge really was prejudiced against him very badly. I think Fitelson and his associates were very aggressive and came to court with a chip on their shoulders. They were real New York types, theatrical types, and the judge wasn’t used to those kinds of people. They were great theatrical attorneys, one of the best. The judge was a Jew himself,” though a conservative upstate Republican. “They were very aggressive. I’ve had negotiations with them on other matters. They hadn’t, in my view, prepared themselves well for Gore’s case, not because they were bad lawyers but because this was an area that was totally unfamiliar to them.” By late winter 1972 it looked almost certain that the case would have to go to trial. Weisl did not think there were grounds for a libel conviction. “It was all in the heat of debate. What Gore said was intemperate but not libelous. Gore shouldn’t have said that Bill was a ‘crypto-Nazi.’ It’s an unpleasant thing to say. He should have apologized and Bill shouldn’t have sued. Bill seemed to be in the habit in those days of suing people. I assume he was feeling litigious. I don’t like using the libel laws unless there’s real damage, real malice…. Homosexuality had nothing to do with their discussion. What they should have done is fought a duel. Instead they went and forced the taxpayers to pay a lot of money and enriched a bunch of lawyers who are rich enough already.”

  Depositions were required. Hayes and his research assistants were deposed. Exhibits were collected, including all drafts of both essays. Motions and countermotions were filed, affidavits sworn to. Search-and-reveal orders kept Vidal’s lawyer, Buckley’s lawyer, the National Review staff, and Esquire’s lawyers and staff busy providing documents, many of them trivial and barely relevant. In late March 1972, in a marathon four-day session, Weisl did a superlative job deposing Buckley. He grilled the plaintiff with merciless, perfunctory politeness. He had cleverly seen that if he could get Buckley to take responsibility not only for his signed articles in the National Review but for its editorials, he could then introduce into the record statements from the Review that supported Vidal’s claim that Buckley had views that reasonable people could readily compare with those held by Nazis in Hitler’s Germany; that Buckley was hostile to Jews, blacks, and immigrants; and that he advocated first strikes against foreign governments. As a matter of fact and pride, Buckley took responsibility for the editorial content of his magazine. Weisl found no shortage of editorials and articles that supported Vidal’s claims. Item by item they were made a part of the record.

  For Esquire the situation was complicated. Its lawyer, Harold Medina, later to become a prestigious judge, was held in the highest respect. His advice throughout had been cautious, thoughtful, sound. He could not be blamed for Buckley’s monomaniacal pursuit of repression and vindication, and once in the grip of the legal process Medina was well aware that anything could happen. A mild man, Harold Hayes was angry and also afraid. The legal nightmare of libel accusations and court machinations seemed infinitely dark, an unjust imposition he had gone far to avoid and that he believed he did not deserve. Esquire’s publisher, Arnold Gingrich, saw his legal costs mounting. From the beginning it was clear that if Buckley persisted, a large part of Esquire’s resources, including the time of its editors and staff, would have to be expended on defending itself, whatever the outcome. It was not what a magazine was in business to do. Medina asked for a summary judgment of dismissal. So too did Weisl. In both cases, in separate rulings, the court did not grant it. Judge Richard H. Levet, after an examination of the documents, ruled that the defendants had not demonstrated the impossibility of the plaintiff’s making his case. The judge ruled that Buckley might have been libeled or might not have been libeled; only a full examination of the actual facts during a trial could determine that. The plaintiff was entitled, then, to plead his case to a jury. The court would not throw out his case, as Esquire had requested. He could voluntarily withdraw it if he chose, or he could proceed with his suit. Buckley won nothing with this ruling except the right to go to trial to attempt to prove he had been libeled. In Buckley’s case against Vidal, however, Levet gave Weisl a favorable ruling on which defenses he would permit and which he would disallow. “We have won, all things considered,” Weisl told Vidal on July 11, “a substantial victory in the case. Judge Levet upheld what I believe to be the most important defense in our answer in part, that of fair comment which allows us to go into all of his political views and the ‘heat of debate’ defense which tends to excuse all remarks made…. At the same time, he denied the Esquire summary judgment motion on the grounds that malice and reckless disregard of the truth might be provable by Buckley, which I doubt.” Judge Levet had also made part of his formal opinion an assertion Rembar and Buckley would have reason to find worrisome. After reviewing the National Review statements Weisl had provided in his brief, Levet concluded that “if a reasonable man could make reasonable inferences from plaintiff’s statements that plaintiff Buckley could be categorized as a ‘procrypto-Nazi,’ ‘anti-black,’ ‘anti-semitic’ or a ‘warmonger’ and if these phrases meet the above-mentioned standards of fair comment, then paragraphs 5th through 31 should remain…. The court must conclude that Vidal’s comments in these paragraphs meet the minimal standards of fair comment. The inferences made by Vidal from Buckley’s statements cannot be said to be completely unreasonable.” Weisl had good reason to feel optimistic.

  After three years of expensive maneuvering, there were now reasons for the principals to bring the case to a close. Judge Levet’s point was clear. If Buckley wanted to vindicate himself, he would have to go to trial, theoretically two separate trials. But he had been put on notice that his chances of winning against Vidal were slim, and a representative New York jury, Buckley and Rembar could be assured, would contain at least some blacks and Jews, though Levet had made it clear that whatever the composition of the jury, the permissible reasonable defenses favored Vidal. Buckley’s chances of winning against Esquire may have been better, though still slim, depending on further rulings about Esquire’s permissible defenses. When Buckley “realized that we could embarrass him by recitation of all those articles from the National Review, “Weisl later commented, “and when the judge wrote his one- or two-sentence opinion saying that a modern jury would find a man holding such views to be sort of a pro- or crypto-Nazi, Buckley realized that he was in big trouble.” Still, Esquire felt disappointed that Levet had not granted its motion for summary dismissal and, burdened by the costs Buckley’s suit had already entailed, it seemed desirable to settle if some compromise that allowed Esquire to maintain its principles and its honor could be effected. Medina and Rembar quietly negotiated. When he learned that Rembar had asked Levet for a postponement because he was negotiating with Weisl, Weisl immediately informed the judge that this was not the case: the lawyers for Vidal and Buckley were not negotiating. In fact, “it was made perfectly clear to Mr. Rembar … that the settlement which he envisioned had no possibility of acceptance.” He urged Levet to set a date for the trial. Clearly, Rembar had not made an offer Vidal could accept. But he had made an offer that Esquire could. In late August that negotiation had reached a result satisfactory to both parties. Esquire would publish in its pages the statement that the lawsuit was “honorably terminated” and that the magazine itself did not share Vidal’s view of Buckley. “We published that article,” Hayes later wrote in Esquire’s pages, “because we believed that Vidal had the right to assert his opinions
, even though we did not share them.” Throughout Esquire had “acted both with empathy and neutrality toward Buckley as well as Vidal.” It also agreed to provide National Review advertising space in Esquire free of charge to a retail value of approximately $10,000, which would in effect cost Esquire nothing. The magazine, however, would pay Buckley’s legal fees, approximately $115,000. In return, Buckley would drop his suit against Esquire, absolve it of all liability, and agree not to pursue the matter again. In late August, Rembar informed the court that the plaintiff and Esquire had reached a settlement. Two weeks later Vidal learned that the suit against him was also being dropped. Since Vidal would not concede or compromise, Buckley decided simply to terminate his action.

  The legal cacophony finally became silence. Hayes, with some quiet time to sort things out, concluded that he had made a mistake at the very outset. He had allowed Buckley to use the pages of Esquire to attack Vidal personally, to state that Vidal was homosexual and his political views were consequently not worth listening to. That had been a serious error, “which is why I now personally believe I, too, owe Gore Vidal an apology,” he later wrote. Vidal had responded partly in kind, so Hayes concluded, but in every case in his rebuttal article in which he had attacked Buckley personally he had linked the attack to Buckley’s politics. Buckley’s attack, however, was relentlessly personal and existed in and for itself. Sadly, self-critically, Hayes wished that he had seen this as clearly at the beginning as he now did at the end. Though the legal war was over, there was one last skirmish in which Buckley had another lesson to teach Hayes, though Vidal and the historical record were his primary targets. The Buckley-Esquire suit had been settled in late August. There was, however, a delay in the official public announcement of its terms. Esquire assumed that a statement along the lines agreed on in a future issue of its own pages would be sufficient. Buckley was eager to hold a press conference as soon as the settlement had been reached, though at first it seemed difficult to understand why. Esquire had admitted no culpability, its only significant concession the agreement to pay his legal fees, an acceptable price to accept to avoid the cost of going to trial as long as the settlement made clear that the magazine had not behaved illegally or unprofessionally. It seemed sensible to Buckley to delay his press conference until the conclusion of discussions between Rembar and Weisl, during which, Weisl reported to Judge Levet, Rembar provided “a total misrepresentation of the settlement with Esquire (he stated it involved a $115,000 payment by Esquire to Buckley),” as if the money represented damages rather than legal fees. The public-relations battle still remained to be won. On September 25, one day before the notification of withdrawal of his suit against Vidal, the National Review held a press conference and issued a publicity release, composed and signed by Buckley. Esquire had not been given even the courtesy of notification. The major newspapers and wire services carried the story the next day. Hayes was shocked. Vidal and Weisl were not. Buckley’s loudly trumpeted statement differed significantly from the facts and from what Esquire had agreed to. With what seemed to Hayes ruthless disregard for the truth, Buckley proclaimed that the court