Libel and the Presidency

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AP Photo

President Theodore Roosevelt in the White House, 1908

The Open Mind explores the world of ideas across politics, media, science, technology, and the arts. The American Prospect is republishing this excerpt.

Alexander Heffner: First to the book, which is really an outstanding read. Teddy Roosevelt after he had served in office was sued for libel.

Dan Abrams: Roosevelt’s president from, from around ’01 to ’09. He then gives it up. He says, all right, I’ve served almost two terms. Remember he came in because William McKinley was shot. And he said it’s time for me to step down. 1912 he decides he’s going to run again. He feels that the Republican Party robbed him of the nomination that he should have gotten, that the party bosses ensured that in various states that he didn’t get the nomination, not because the people didn’t want him, but because they didn’t want him. Fast forward to 1914. Yeah, and you have this, this independent sort of Rooseveltesque candidate for governor, and he hands out a pamphlet in essence to announce his support. And as part of it, he blasts the party bosses and in particular William Barnes and in particular he felt Barnes was, I don’t want to say single handedly, but the leader of the movement against him in 1912 and so he blasts the party boss system, which the biggest thing about it back then was that senators were not elected directly by the people. It was the state legislature often controlled by the bosses that picked who the senators were. And so Roosevelt was decrying that system and talking about the need for someone much more independent minded to be the candidate for governor. And that’s what led to this. He accused Barnes of being corrupt. My goodness, the word corrupt back then.

Heffner: To our audience, it was a rather tame assessment of Barnes. There was no expletives, there was no …

Abrams: There was no personal attacks.

Heffner: Yeah, there was no ad hominem, vindictive attack like the kind we see on Twitter today from politicians.

Abrams: No. It was just basically saying, it was accusing Barnes of in effect, being in cahoots with the head of the Democratic Party and saying they’re trying to retain power so that senators aren’t elected directly by the people. And that was the essence of his argument. But you know, look, he’d made similar comments in the past, and again, this is political talk, this guy’s corrupt, this guy, he will … And so it was I think stunning to everyone, including those around Barnes, that he decided to file this lawsuit against Roosevelt.

Heffner: Is there any question about whether he’s going to comply with the legal mandate? It sounds like no from what I read.

Abrams: Yes.

Heffner: He was, he saw the suit and he was there.

Abrams: He was there. He was ready. He was ready to defend this case. And I think for him this was an opportunity to defend his legacy. I mean this trial was about much more than a libel case.

Heffner: Vindication of Bull Moose…

Abrams: Vindication of Bull Moose,

Heffner: Of his third party run.

Abrams: And vindication of his longstanding hatred, resentment towards this sort of party boss controlled system, which by the way, he was resentful of even before he became president. Remember, one of the things that happened when he was governor of New York was that they, the bosses pushed him to run to become vice president. Why? They wanted him out of the governorship. They wanted him in a know-nothing job as vice president so that they could again have someone they picked as governor of New York and Roosevelt reluctantly agreed and lo and behold, he becomes president shortly thereafter.

So I think that was his goal in defending this. And you know he spent eight days on the witness stand.

Heffner: Right. Let’s talk about the trial. So initially it would be designated for Albany, that jurisdiction, but it’s moved to Syracuse because Roosevelt who has busted corruption is not, does not think he’s going to get a fair shake.

Abrams: Wasn’t that amazing. Think about it that. The former president of the United States is saying, I can’t get a fair trial in, in a city because the other guy’s so powerful there, because it shows you the control, right? Barnes. Albany, capital of New York. Barnes was so powerful in Albany. He controlled the biggest newspaper there. He was the player in town and the court agreed. Theodore Roosevelt can’t get a fair trial in Albany, so we need to move this case. And they moved it to Syracuse, New York and Roosevelt moved his life for six weeks out of Long Island, six hours away, to defend this case.

Heffner: His suit would be by today’s standard frivolous or thrown out.

Abrams: Totally. It would be thrown out.

Heffner: What were the respective arguments and how were they contextualized in the history of Alien and Sedition and the fact that, you know, libelous speech then was more curtailed and legally unjustified than it is today.

Abrams: Yeah. So, so back then, just the fact that he’d called Barnes corrupt, the trial starts with the plaintiff basically saying, these are the comments that were made. They call a witness who says, yes, I was the person who handed it out. And you hear the defense lawyers then say, well, you know, they haven’t shown that necessarily what he said was of and about Barnes, cause really all they have to show back then was it was defamatory. He distributed it. And it was of and about the defendant. If they could prove those things, the burden shifted to Roosevelt to prove it was true.

And the defense attorneys are sort of playing these games and saying, well, maybe it wasn’t about Barnes. And so the, the attorney for the plaintiff for Barnes says, fine, let’s call Mr. Roosevelt to the stand. Mr. Roosevelt, was this of and about Mr. Barnes. Yes. Okay. Game on. I mean that was it. Roosevelt was not, and that’s the, that’s one of the great things about Teddy Roosevelt. He was a straight shooter. He wasn’t going to play games. He didn’t come up to Syracuse, New York to muck around with, oh well, you know, maybe I meant this. Yes, I said this about Barnes and I meant it. And then immediately the burden shifts to the defense, which by the way, and fundamentally different than today because of New York Times versus Sullivan,

Heffner: Right.

Abrams: In 1964 fundamentally changed the legal standard for someone who’s a public figure. So the reason this would get dismissed is because back then all you had to show—defamatory, of and about the person, distributed or you know, made by the person, et cetera.

Now you’d have to show that the person who made the comments knew or should’ve known in effect, that it wasn’t true. And that’s a much harder standard to overcome. And that’s why the case like this would certainly get dismissed before trial. And this is why there were more libel suits back then. I mean, you know, you’re talking about an era, which is just post the duels. I mean, you know, libels were really serious stuff. Abraham Lincoln almost got in a duel in the 1840s over something he and his wife had written in a newspaper under a pseudonym. I mean, duels were common things based on libel.