Gore Vidal (108 page)

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 heterosexual, 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