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Private Guy

Elmer Gertz, the most famous nonpublic person in the annals of American law, turns 85.


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Everyone was at Elmer Gertz's 85th birthday party at the Cliff Dwellers Club--it was given by the Blind Service Association, of which Gertz is president. Everyone. Every big Chicago name was laid out on the name-tag table in alphabetical order--from the media, from the arts, from business, politics, and law. The mayor sent a proclamation delivered by Alderman Mary Ann Smith; court of appeals judge William Bauer gave a testimonial and compared Gertz to Clarence Darrow. Dawn Clark Netsch said a few words. So did Kup.

No one could deny that this evening civil rights lawyer Elmer Gertz was an important figure. People talked about the 18 books he's written; how he got Nathan Leopold sprung from jail; how he got Jack Ruby off death row; how he got Tropic of Cancer back on the bookshelves; how he was friends with Harry Truman and Carl Sandburg and Melvyn Douglas and Thurgood Marshall; how he received awards and honors--from the ACLU, from the state of Israel, from all around the world. No one could deny that at this moment Elmer Gertz was indeed a public figure.

Except the United States Supreme Court.

Elmer Gertz has the singular distinction of having been characterized decisively by the United States Supreme Court as a private figure. Gertz "has long been active in community affairs," wrote Justice Lewis Powell in 1974. "He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles....Although [he is] well known in some circles, he [has] achieved no general fame or notoriety in the community....Absent clear evidence of general fame or notoriety in the community and pervasive involvement in the affairs of society, an individual should not be deemed a public personality....It is plain [Gertz is] not a public figure."

Said Gertz, as the Chicago elite fluttered about him eating cheese puffs and drinking white wine in his honor, "Since then I've been called the most famous private person."

Gertz was not insulted then and he's not insulted now that the Supreme Court in its 5-4 decision so diminished his status among his peers. The high-court determination reducing Gertz's standing in the community paid off to the tune of half a million dollars--the fruits of his suit against Robert Welch, the founder of the John Birch Society.

"He was a contemptible person," said Gertz. "But I'm also grateful."

Grateful for the chance to be rich.

It happened like this. In 1968, Gertz represented in a civil suit the family of a boy who had been killed by a cop--a cop who was eventually convicted of second-degree murder. An article in the John Birch Society journal American Opinion said Gertz was part of a communist-inspired antipolice conspiracy. The article said Gertz had "a police file which took a big, Irish cop to lift," and that he was an official of a Marxist organization advocating the violent seizure of the government. They called him a Leninist, a communist-fronter, etc, etc.

Gertz sued for defamation in federal district court, where the jury decided in his favor and awarded him $50,000. But the district court judge threw out the verdict and the circuit court of appeals went along. The U.S. Supreme Court agreed to hear the case--and they ended up defining for the first time the difference between public and private figures in matters of defamation.

Ten years earlier, the high court had decided the landmark Sullivan v. New York Times--every newspaper and broadcast person's best friend on deadline. Sullivan said that unless a journalist's heart was filled with malice--or reckless disregard for the truth-- the American people have an important enough stake in free speech concerning public officials that the Constitution would protect false statements of fact.

In Gertz v. Robert Welch, Inc. the court said defamation suits filed by private persons would be left to the discretion of state courts. Under this new ruling Gertz's case scurried through the court system again. Gertz won, and years later he received his half million bucks from Robert Welch, Inc. For damage to his reputation and his standing in the community, for personal humiliation, and for mental anguish. He gave gifts to his wife and children, and traveled around the world--twice.

Ironically enough, the case made Elmer Gertz a public figure. "In the first trial, not one of the jurors ever heard of me," he said. "That's one of the reasons the Supreme Court ruled the way it did. But by the second trial, four had heard of me."

Gertz has no hard feelings

about the Supreme Court's characterization of his accomplishments. "It's almost impossible to name a lawyer outside of Clarence Darrow--even Mel Belli--who is well-known in 'the fullest sense,'" he said. "Or any doctors other than Mayo, let's say, who have universal fame or are household names.

"I still don't have universal fame," Gertz said, as Chicago's movers and shakers lined up to shake his hand and wish him a happy birthday. "Just this morning Kup, in his column, called me a 'legal icon.' That's probably a good description."

Lawyer and criminal-law professor Ron Smith (husband of alderman Mary Ann), who worked with Gertz more than 20 years ago on drafting a new Illinois constitution, was sitting with Gertz "sometime in the 70s" when one of the verdicts came down. "He was a public figure. Everyone knew him," said Smith. "He just wasn't a New York Times public figure. It was so odd for Elmer to sue on grounds curtailing free speech. But [Welch] was such a despicable person."

As the crowd thinned, and Gertz was left with a few close friends and family members who straggled behind, he was asked whether the crowd that had just gathered in his honor, the words they spoke, the achievements they recalled, meant the Supreme Court was wrong. Maybe Elmer Gertz really was a public figure.

"Maybe now," he said. "Probably now."

Art accompanying story in printed newspaper (not available in this archive): photo/John Sundlof.

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