Inc. John Henry Faulk v. Aware et al: 1962

When the trial finally opened on April 23, 1962, New York Supreme Court Justice Abraham N. Geller immediately impressed upon the members of the jury their right to judge the facts in the case without prejudice and without fear.

The fear of blacklisting was still so great when the trial opened that witnesses whose testimony Nizer needed were hard to find. Both Faulk and Nizer implored individuals to come forward, and those who did were an impressive lot: successful performers, advertising executives, and producers who had had their fill of blacklisting.

Nizer led each one through testimony that described for the court how people were labeled Communists because they were linked to Communist Front activities, often simply because they had made small financial donations to obscure political causes. There were stories of mistaken identity and of guilt by insinuation. Rarely would someone be given the opportunity to deny an allegation, but one witness testified a victim could, if he paid a fee to the consultant, receive a "full report" and concede the wrongdoing.

Actress Kim Hunter told how she couldn't get a job in broadcasting for three years after she'd won an Academy Award in 1949. Her name had not appeared in Aware, Inc. bulletins or on any lists that she knew of, but no one in television would hire her.

Finally in 1956, she traced her lack of employment to Hartnett and sought him out. He told her that his investigation had linked her name with assorted Communist Front activities and she could have a full report for $200.

The actress' former "acts of disloyalty" now valued at $200 were: purchasing for $5 a reprint of the New York Post series entitled, "Blacklist—The Panic in Radio and Television"; lending her name to the "problem of world peace" under the auspices of the National Council of Arts, Sciences and Professions; and signing a petition for the fair trial in Mississippi of Willie McGee, "a Negro."

David Susskind, an experienced producer, testified he had to submit all the names of all the people involved in a production to the ad agency Young and Rubicam for political clearance. No one was hired until approved. In one year alone, Susskind testified he had submitted 5,000 names for approval. One-third were rejected.

Nizer tied this testimony to Hartnett by producing an agreement Hartnett had with Young and Rubicam. For $5 each, Hartnett would check the names of artists submitted to him for Susskind's program. An advertising executive corroborated this by testifying that he came to view Hartnett as a racketeer selling protection.

Apparently no performer had been excluded from the screening process. Nizer produced Hartnett's records in which one entry read, "Santa Claus, $5."

It wasn't Faulk's political sins that got him fired, argued defense attorney Thomas Bolan, who had replaced his associate Roy Cohn. It was Faulk's lack of talent and his loss of popularity. Bolan pointed out that Faulk kept his show for one year after the Aware bulletin was issued—evidence, he said, that it was Faulk's loss of popularity and his own incompetence that cost him his job.

Bolan then accused Faulk of attending Communist Party meetings in the 1940s and associating with known Communists. Faulk denied this on the stand and it gave Nizer an opening to get his client's views before the jury.

"Have you … ever been sympathetic to any Communist ideology, directly or indirectly?" Nizer asked. In a tremulous voice, Faulk answered, "No, sir, I have not."

It was Aware, Inc., and the defendants themselves who proved to be the most effective witnesses for the plaintiff. Paul Milton, one of Aware's founders but not included in the suit against the organization, testified for the defense. Under Nizer's questioning, Milton moved from resistance to a reluctant confession, conceding that Faulk's only wrongdoing was opposing Aware, Inc. Nizer also attacked the language of the Aware, Inc. bulletin, which Milton had helped draft. The phrase "according to the Daily Worker" made it appear that the Communist newspaper supported Faulk's candidacy. Nizer pointedly asked if news of Faulk's opposition in the union to Aware hadn't appeared in all the daily papers? Milton admitted he had deliberately omitted this fact.

When Hartnett took the stand, Bolan began to lead his client through an impressive-looking pile of documents on which Hartnett claimed he had relied when compiling evidence of Faulk's disloyalty.

Ordinarily notes of this sort are inadmissible, as they cannot be independently verified, but in a libel case an exception is made to permit the defendant to demonstrate a research effort had been made unmotivated by malice. Hartnett began citing the records of the House Un-American Activities Committee hearings, but he was interrupted. These congressional hearings were not admissible in a court of law, Justice Geller told the astonished defense attorney. They did not constitute a judicial finding, and their truth had not been established. With the HUAC hearing records excluded, all that was left of Hartnett's "research" were 13 notes on a file card when Nizer began cross-examination. Of these, only two mentioned Faulk's name, and both were positive references to Faulk's career.

Nizer also proved that Hartnett had attributed a story about Faulk and the "middlers" to the Daily Worker, though it had appeared in the New York Herald Tribune.

While he was under cross-examination, Hartnett was asked if he could identify Faulk's wife among the spectators. When Hartnett pointed to the wrong woman, Nizer bellowed: "Sir, is that an example of the accuracy with which you have identified your victims for the past ten years?"

Hartnett told the court he investigated individuals only at the request of a client. But no one—not the ad agency Young and Rubicam, not the sponsors, not the network, Nizer showed—had requested a report about John Henry Faulk or the middle-of-the-road slate of officers. This research Hartnett had thrown in for free.

Laurence Johnson never appeared in court to defend himself. Newspaper columnists called him "sick-call Larry," as he traveled from doctor to doctor for exemption. Nizer charged that if Johnson could withstand this many medical examinations, he was sturdy enough to appear in court. The court agreed. But as the trial reached its final days, Johnson checked into a Bronx, New York, motel, where he was found dead of a barbiturate overdose. The news was kept from the jury until both sides finished their summation.

The issue in the trial, Nizer told the jury, was not Communism at all, but private vigilantism and individuals who took the law into their own hands. When a self-appointed group fabricates information about a man, then goes behind his back to deprive him of his livelihood, Nizer declared, it could only be described as a concerted conspiracy. Nizer urged the jury to give by its verdict a "clarion call to the world" that this practice had to stop.

Bolan's defense attacked Faulk's integrity. Faulk, he told the jury, was a liar.

Justice Geller sequestered the jury for the night. The next day he substituted the estate of Laurence Johnson in place of the deceased Laurence Johnson as defendant. One day later, on July 29, 1962, the jury returned a verdict for Faulk along with the largest award in a libel suit to that date. It awarded damages of $1 million against Aware, Inc., Hartnett, and the estate of Laurence Johnson. Finding malice on the part of the defendants, it added $1.25 million in punitive damages against Aware, Inc., and the same amount against Hartnett.

In 1963, an appellate court reduced the damages from $3.5 million to $550,000, deciding that this amount was in line with Faulk's estimated earnings. The decision was upheld the next year in the New York State Court of Appeals.

Hartnett and Aware, Inc. then claimed the verdict violated their First Amendment freedoms and petitioned the Supreme Court for certiorari—permission to appeal the constitutional question. The request to be heard was denied with only Justices Hugo Black and William 0. Douglas voting to grant it. In one last petition to the Supreme Court, the defendants argued that libel law came from the ecclesiastical law of England and violated the First Amendment separation of church and state. It was unanimously denied. Finally the blacklist and the blacklisters were finished.