John Henry Faulk v. Aware, Inc., et al: 1962
John Henry Faulk v. Aware, Inc., et al:
Plaintiff: John Henry Faulk
Defendants: Aware, Inc., Vincent Hartnett, and Laurence A. Johnson
Plaintiff Claim: Damages for libel and conspiracy
Chief Defense Lawyer: Thomas A. Bolan
Chief Lawyer for Plaintiff: Louis Nizer
Judge: Abraham N. Geller
Place: New York, New York
Dates: April 23—
July 29, 1962
Verdict: Award for compensatory damages in the amount of $1 million, plus $2.5 million in punitive damages (at the time, the largest judgment ever returned in a libel suit)
SIGNIFICANCE: The verdict put an end to institutional blacklisting by private groups and individuals who claimed to be experts on Communism, "cleared" artists, and excluded artists from employment in the mass media.
In 1957, radio and television performer John Henry Faulk, a Texan with a penchant for folklore, fought back against blacklisting in the American work place by suing Aware, Inc. and two individuals for libel. In the tense Cold War years following World War II, fear of Communist subversion led to pressure on the movie and broadcasting industries to blacklist anyone suspected of the slightest past or present sympathy with Communist or leftist causes. Afraid of advertiser boycotts, the broadcasting companies buckled under the pressure from self-styled experts on Communism who insisted on their right to screen performers. Hundreds of careers were jeopardized or ruined and some victims of the practice were so distraught they committed suicide.
Despite bankruptcy and humiliation, Faulk persisted in his suit against the blacklisters through six years of pretrial motions, a dramatic trial, and numerous appeals that reached the U.S. Supreme Court.
The Cold War Climate
With the onset of the Cold War in 1946, the federal government and other sectors of American life were purged of those suspected of sympathy with the Soviet Union's Communist government. Blacklists containing the names of anyone who had refused to appear before the House Un-American Activities Committee (HUAC) were circulated to intimidate offending individuals and organizations. By the 1950s, the blacklisters, motivated as much by the desire to make a buck as anti-Communist ideology, had begun to intimidate the private sector—business, higher education, radio, and television.
Performers were systematically "cleared" through paid security consultants. Encouraged and provided with information by the continuing HUAC hearings, they researched a performer's political history. The evidence was often slight or ambiguous. A $5 donation to the "wrong" cause was sometimes sufficient to add a name to a blacklist and jeopardize the "sinner's" livelihood. By 1955, the practice was an integral part of the broadcast industry's hiring procedure.
Faulk Leads Fight Against Blacklisting
John Henry Faulk, who was all Texas charm and folksy humor, was born and reared in Austin and went on to earn a Master's degree in English at the University of Texas, where he lectured on American folklore and English while studying for a doctorate. After the war, during which he served in the Merchant Marine, the American Red Cross, and the U.S. Army, Faulk began appearing on radio and television. By 1953, he was starring in his own talk show, playing popular music and commenting in his distinctive drawl on the news of the day.
His daily afternoon radio program on WCBS, in New York City, had high ratings and solid sponsors such as Libby's Frozen Foods by 1955. Faulk was well-liked by his colleagues and substituted regularly as a panelist on television game shows. He was, in fact, planning a full-time television career.
Like all broadcast performers, he was a member of the American Federation of Television and Radio Artists, known as AFTRA. Formed in 1938, AFTRA's New York local was the largest in the country. It was governed by a 35-member board of directors, elected by the membership every year. In the mid-1950s the board was dominated by an anti-Communist faction supporting Aware, Inc., a political group organized to fight "the Communist conspiracy in entertainment communications." In fact, Vinton Hayworth, the president of AFTRA in 1955, was also an officer of Aware, Inc.
Any performer who found his name in one of Aware's regularly issued bulletins was blacklisted and rendered unemployable in the industry. Sponsors, worried that their products would be linked to those accused of Communist sympathies, canceled advertising spots. Without explanation, performers were denied all opportunities, even 10-minute guest appearances. Careers and lives were quickly ruined. Victims disappeared into obscurity, including Jean Muir, the popular mother on "The Aldrich Family." Others, like Mady Christians and Philip Loeb, committed suicide.
Alarmed by the growing practice of blacklisting, several members of AFTRA, including Faulk, recommended that Aware, Inc. be condemned by the union membership. The vote was carried, 982 to 514, and a new slate was put up for election: Charles Collingwood, a former Rhodes Scholar and then a CBS news commentator; Gary Moore, popular on radio and television; and John Henry Faulk, among others. They called themselves "the middle of the road slate" to oppose Communism and blacklisting alike, to "oppose denial of employment by discriminatory and intimidating practices, especially by outside organizations."
The bitterly fought election brought an overwhelming victory for the "middlers." The highest number of votes went to Faulk, and with it the full force of an Aware assault. In the no-holds-barred, poison-pen campaign that followed, Aware sent letters to CBS executives warning that Faulk had "a significant Communist Front record."
Faulk vehemently denied the allegations. At the urging of CBS executives, he signed an affidavit saying so. Despite the assault behind the scenes, Faulk's show continued to register high ratings. He openly discussed the continued assault on his sponsors and their ad agencies with CBS executives, even urging them to sue sponsors who canceled advertising because of the unfounded accusations. When they refused, Faulk himself filed suit on June 26, 1956. CBS renewed Faulk's contract in December 1956, and in the year that followed, Faulk's earnings were the highest ever and his show was number two in the Nielsen ratings. His friend and manager Sam Slate assured him his job was secure. But in 1957, CBS fired Faulk while he vacationed with his family in Jamaica. The network told him it needed to make format changes and would. substitute Arthur Godfrey in his time slot. From that time on, with the exception of a guest appearance on Jack Paar's talk show, Faulk could not get a job. In 1959 he moved his destitute family back to Texas.
The evidence that banished Faulk from the entertainment industry and left him unemployed for 61/2 years began with a list of speaking engagements Faulk had made from 1946 to 1949. It stated, "According to the Daily Worker (the Communist newspaper) of April 22, 1946, Jack Faulk was to appear at Club 65, 13 Astor Place, N.Y.C.—a favorite site of pro-Communist affairs."
Unlike other Aware victims, Faulk fought back with the help of Louis Nizer, the most respected civil liberties lawyer of the day. Nizer determined first that Faulk's was a case of libel, but Nizer suspected a conspiracy, too. The suit was an opportunity to attack the blacklisting techniques that permeated the industry. To prove the case, Nizer would show how a few private citizens forced the entertainment industry, the fifth-largest industry in the United States, to secretly and illegally boycott its own employees.
The defendants in the case, representing Aware, Inc., were Vincent Hartnett and Laurence Johnson. Johnson, in his 70s, was the prosperous owner of a chain of New York state supermarkets. His criticism of a program or a performer brought anxious network executives to his Syracuse headquarters seeking absolution. Johnson's attack on Faulk took him to the Madison Avenue advertising agencies representing Faulk's sponsors. There he threatened that every supermarket in the country would boycott any product sold on Faulk's show.
Vincent Hartnett was also an entrepreneur, cashing in on the anti-Communist zeal as the principal contributor to Red Channels, a book citing the political activities of performers. It became the desktop reference during every casting call. In 1952, Hartnett, with Paul Milton, had formed Aware, Inc., a private consulting firm to screen artists. A former network employee himself, Hartnett charged broadcast networks and ad agencies $5 a head to research a performer's background. Hartnett's alliance with Laurence Johnson added economic muscle to back up the accusations. To deny or protest only brought more controversy for the victim, more letters, more threats. Almost without exception the accused slipped quietly away.
To win the libel suit, Nizer would have to overcome the obvious defense that what was written in the bulletin was true, Nizer had to show that Faulk, as a public figure, was maliciously attacked outside the bounds of fair comment. Although the truth of the speaking engagements was proven, the claim Faulk was a Communist sympathizer was not provable by a mere newspaper listing. Nizer established in pretrial testimony that Aware, Inc., Hartnett and Johnson could not verify any of the accusations against Faulk contained in the lengthy documents they had published and distributed.
In one dramatic pretrial session, Hartnett, in front of his attorney, Godfrey Schmidt, admitted to Nizer that his research consisted of "being sold a barrel of goods." Soon after, Schmidt was replaced by Roy Cohn as the chief defense attorney.
Trial Witnesses Hard to Find
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.
Suggestions for Further Reading
Caute, David. The Great Fear: The Anti-Communist Purge Under Truman and Eisenhower. New York: Simon & Schuster, 1978.
Faulk, John Henry. Fear On Trial. New York: Simon & Schuster, 1964.
. "Awareness and Aware, Inc." Bill of Rights Journal (December, 1985): 26.
Kanfer, Stefan. A Journal of the Plague Years. New York: Atheneum, 1973.
Nizer, Louis. The Jury Returns. Garden City, N.Y.: Doubleday & Co., 1966.