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Dan Rottenberg spent 70 years as a journalist and free speech warrior, most of them here in Philadelphia, where he most recently created Broad Street Review.

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Frank Rizzo v. the Free Press

An excerpt from a longtime Philly journalist’s memoir sees in a famous Philly libel trial the path from Rizzo to Trump

Frank Rizzo v. the Free Press

An excerpt from a longtime Philly journalist’s memoir sees in a famous Philly libel trial the path from Rizzo to Trump

Frank Rizzo had been out of the mayor’s office for nearly two years when I became editor of the Welcomat [a Philly weekly from 1971 to 1995] in the fall of 1981. The following spring, I published an unsolicited essay by Noel Weyrich, a young freelance writer, who contended that Philadelphia was no longer the same city that had first elected Rizzo mayor in 1971. The Weyrich essay characterized Rizzo as “a relic from the age of bad food, heavy industry, and Connie Mack” — this last a reference to the ancient icon who had owned and managed the Philadelphia Athletics for the first half of the Twentieth Century. The transformations of both Philadelphia and America since 1971, Weyrich argued, “have left Frank Rizzo in the dust”:

Frank Rizzo could not get elected in this atmosphere any sooner than a clown like Adolf Hitler could get elected in the Germany of today. Politicians like Rizzo, Hitler, Mussolini, George Wallace, Joe McCarthy, and Milton Street [a rabble-rousing former Pennsylvania state senator] all have or had this in common: They are mediocre if not inferior men, boosted to undeserved prominence by a wave of irrational fear and hatred.

Rizzo, not surprisingly, objected to being lumped with Hitler and Mussolini. But he didn’t send us a letter — which I would have been happy to publish — or demand a retraction. Instead, one week after the Weyrich essay appeared, he filed an $11 million libel suit against the Welcomat, our publisher Susan Seiderman, and even our general manager, Mark Mandelkern (who as supervisor of the paper’s business side had nothing to do with the Weyrich article whatsoever) — and, of course, me.

In the Age of Donald Trump, Americans may yet need to re-learn the lessons of the Age of Rizzo. Nobody ever said democracy was easy.

To the reporters and TV cameramen who rushed out to his Chestnut Hill home that night, Rizzo mentioned that I had criticized him frequently in the past, but

this time, he went too far. I want satisfaction. If I wasn’t a public figure, I’d rather make him eat a bundle of those articles covered with ketchup or mustard or whatever he likes.

Of course, if Rizzo hadn’t been a public figure, I never would have published a word about him — a point that Rizzo failed to grasp.

Had anyone else filed such a suit, it would have been dismissed immediately. As the Welcomat subsequently argued — in our court briefs as well as my editor’s column — the Weyrich essay constituted an expression of opinion about a public figure. Such expression is absolutely protected by the U.S. Constitution, no matter how offensive Rizzo may have found it. But Rizzo cast a long shadow over Philadelphia’s judiciary in 1982. Many of the city’s Common Pleas Court judges owed their election to his support. Many other judges were former prosecutors who had worked with Rizzo when he was a police officer and commissioner. As judges, they surely understood that Rizzo had no legal case against us. But they were terrified to rule against him.

Thus began four nerve-wracking years during which our little weekly paper searched in vain for a Philadelphia judge willing to dismiss Rizzo’s suit on constitutional grounds. Rizzo’s bizarre legal contention that the Weyrich essay was presented as fact, rather than opinion, was deemed at least worthy of debate in a court of law. Of the seven libel suits that were filed against me or my publications during my career, this was the only one that actually survived to the trial level.

Our attempts to move the trial out of Philadelphia were similarly rejected. And although most Philadelphia judges seemed friendly to Rizzo and hostile to the press, our lawyers nevertheless concluded that we were better off making our case to a single local judge, trained in the law, rather than exposing twelve lay jurors to the force of Rizzo’s charisma. So the choice of a judge would be critical. We were stuck between the proverbial rock and a hard place.

Susan Seiderman, Rottenberg, and the writer Noel Weyrich shortly before Rizzo’s suit finally came to trial in May 1986. (Photo: Michael McGettigan, Philadelphia City Paper.)

Only in retrospect do I realize that Rizzo too was stuck. In his haste to vent his anger as well as his overweening confidence in his own righteousness, Rizzo had filed his suit without sound legal advice. Years later, I learned that he had approached Richard Sprague, the much-feared former chief prosecutor-turned-media scourge, who seemed to delight in filing libel suits (including one against the Welcomat); Sprague declined, telling Rizzo his case was groundless. Several other lawyers rejected Rizzo for the same reason. But these dealings were unknown to us at the time.

Ultimately, Rizzo enlisted Benjamin Paul, a political hanger-on who was apparently motivated by his devotion to Rizzo, his hope that Rizzo might some day reward him with a judgeship, and his assumption that the case would be settled and he would receive a third of the payout as his contingency fee. Paul, who operated from a one-man law office on the outskirts of the downtown, struck me as a study in low self-esteem: At my subsequent deposition, when our attorney upbraided him for asking “a poor question,” Paul replied, “If I was a great attorney it would be a better question.”

Neither Rizzo nor Paul seemed to have devoted any thought to the nature of their adversary in this case: the Welcomat’s publisher, Susan Seiderman, a woman every bit as combative as Rizzo. After years of squabbling with her parents, her sisters, her suppliers, and her employees, Susan seized upon Rizzo’s suit as the ultimate battle she’d been born to fight.

Standing by himself, and at age sixty-five a shadow of the husky macho cop who had once intimidated street punks, Rizzo now looked out of his element. But his very lack of the trappings of power impressed me: Rizzo has the guts to show up here alone, I found myself thinking with grudging admiration.

Susan was further energized by phone calls from no fewer than five Philadelphia lawyers, all offering to represent us gratis against Rizzo — which happily wasn’t necessary, because our legal expenses were insured. Thus while Rizzo had only Ben Paul in his corner, we hired the law office of Harold Kohn, a Philadelphia superlawyer whose past work had resulted, among other things, in the end of movie censorship in the U.S. Our specific counsel was Kohn’s partner Sam Klein, a champion of free speech as well as the libel lawyer of choice for Philadelphia’s daily newspapers and TV stations; and if the case came to court, our litigator would be Bill Lytton, a former federal prosecutor. Our spunky little weekly was in heady legal company — which was some comfort, since Rizzo seemed to have most of the city’s judges in his corner.

As the case wound its way through four years of motions, countermotions, depositions, and delays, Paul offered to settle Rizzo’s $11 million suit for $1 million. When we declined, he reduced the offer to $100,000. Ultimately, he came down as low as $30,000, but still our answer was no. For us, it was a matter of principle; and our insurance company, which was footing all those legal bills, supported our stance: By fighting a prominent figure like Rizzo rather than settling, our insurers perceived, we’d discourage similar suits in the future. God bless them for that, too.

A forum for the exchange of ideas

The case landed in the courtroom of Bernard Goodheart, a benign-looking fellow in his mid-fifties who was best known in Philadelphia (if at all) for his appealing surname and his practice (derived from his name) of performing courtroom weddings on Valentine’s Day. When Judge Goodheart’s court was called to order on the morning of the trial, the room was devoid of an audience, other than one reporter and one other spectator. Rizzo was nowhere to be seen. At about 10:30 I was called to the stand as the plaintiff’s first witness — even though I was one of the named defendants in the case.

Ben Paul’s examination of me attempted to demonstrate the two points he needed to prove in order to make his case: First, that the Welcomat was a newspaper and not an “opinion forum”; and second, that Weyrich’s article was presented as fact, not opinion. I tried to turn his questions to my favor:

The Welcomat, from the time I became editor, was construed as a forum for the exchange of ideas, the idea being that there ought to be some place where people who don’t have access to the mass media can exchange ideas. . . . This was to be a place where people engage in a vigorous exchange of views, whether I agreed with them or not, and it would sort of be the equivalent of the old New England town meeting.

As the morning wore on, I grew increasingly confident. At one point Paul laboriously established that I had erred in saying that Rizzo had campaigned “vigorously” for two of his friends.

“You could be wrong,” Paul concluded triumphantly.

“Of course,” I replied. “Absolutely. . . . That is the whole point of the Welcomat to get these things out in the open. . . . If we are wrong, let Mr. Rizzo write and say, ‘Gee, I never supported these people. You have it all wrong’.”

Paul asked if I believed people are entitled to express “unfair opinions.”

When Frank Rizzo sued the Welcomat in 1982, he vowed to make me eat a bundle of our papers “with ketchup or mustard.” Art director, Jim Naughton captured Rizzo’s fantasy in this cartoon.

“There is a value to society in expressing opinions,” I replied, “because if those opinions are wrong. . . . the other party has the opportunity to say, ‘Hey, that’s wrong,’ and he has the opportunity to set the record straight. Whereas if you keep the wrong opinion to yourself, he won’t have that opportunity.”

“It could be scurrilous and unfair,” Paul hypothesized, “but so long as it is an opinion, you feel you can publish it with impunity?”

“I guess the best way to answer that,” I replied, “is. . . . How would I feel if someone wrote this about me?…. Would I respond as Mr. Rizzo has responded, would I object and file a lawsuit?” I said my answer would be “no,” for three different reasons:

First, I recognize that as an editor of a paper, I do exercise some power—not as much as Mr. Rizzo exercised or seeks to exercise, because I don’t have the power to levy taxes and I don’t have the power to arrest people. But I do recognize I exercise some power. That being the case, I feel the least I can do is to allow other people to express their opinions about me, whatever they want to say. . . .

The second point is that since we do live in a society where everybody, rightly or wrongly, is entitled to express their opinion, the fact that somebody expresses something scurrilous about me is not necessarily a reflection on me. It might very well be a reflection on him or her.

The third thing:. . . . If there is someone out there who holds a scurrilous opinion about me, I want to know about it. I don’t want him to keep it to himself, because he may be wrong, and I want to get out there and set the record straight.

I was on the stand for about three and a half hours. Much of the time, Ben Paul tried to demonstrate that I was biased against Rizzo. But Paul wasn’t terribly well prepared. And if he had been, I gradually realized, I knew myself better than he did — one advantage witnesses enjoy over lawyers. (Later, when I took my seat in the audience next to Susan Seiderman, she said much the same thing: “He can’t touch you,” she whispered, “because you know who you are.”)

My last half-hour or so of testimony involved questioning by the Welcomat’s lawyer, Bill Lytton, who induced me to read bits of my previous writings about the value of free expression and the role of the Welcomat. And he asked me to read aloud one of my favorite quotations, from the Jerome Lawrence-Robert E. Lee play, Inherit the Wind:

A thought is like a child inside your body. It has to be born. If it dies inside you, part of you dies, too!…. Bad or good, it doesn’t make any difference. The ideas have to come out—like children. Some of ’em healthy as a bean plant, some sickly. I think the sickly ideas die mostly, don’t you?

Whether deliberately or not, this line of questioning painted the Welcomat and me as figures of quasi-literary substance — the sort of people a judge might aspire to associate with — in contrast to Rizzo’s superficial bluster. But to my surprise, under this friendly examination, I found my attention wandering. By contrast, the opposing counsel, Ben Paul, kept me awake and reasonably sharp.

In retrospect, that’s understandable: We perform at our best before an attentive audience, and an audience is most attentive when the potential for drama exists — and the essence of drama is conflict. I found myself hitting better against Paul’s hardball pitches than against the softballs my own lawyer lobbed to me. That’s the whole basis of the theory of free expression — that the conflict of ideas brings out the best thinking.

The writer finally has his say

Noel Weyrich, author of the essay in question, followed me to the stand. At the time his article appeared, Weyrich was 22 and trying to establish a freelance writing career; after Rizzo filed the suit, Weyrich’s credentials were publicly maligned — not only by Rizzo but by three columnists at local daily papers. What’s more, Weyrich was precluded from publicly defending his words, lest he damage our legal case.

From Noel’s perspective, he was the one whose name was dragged through the mud — and, unlike Rizzo or me, he lacked a forum in which to respond, until now. Weyrich was not a defendant in this case — the Welcomat, Susan Seiderman, and I were, for having published his words — but he had suffered the most as the result of Rizzo’s suit.

For a man who professed concern about media recklessness, Rizzo on the stand was hardly a model of precision or logic. In all respects, he came across as a man who believed in his right to say whatever he pleased, and his right to prevent others from doing likewise.

Paul spent several minutes dwelling on the fact that Weyrich never finished college — a puzzling ploy, since Rizzo never finished high school. When Paul produced a volume of the World Book encyclopedia and asked Weyrich if he would accept it as an authority on Hitler and Mussolini, Noel replied that he would rather rely on various scholarly books about the Weimar Republic: “The World Book is like reading a novel in the Reader’s Digest,” Noel said.

By surprise, Judge Goodheart chimed in with his unsolicited agreement: “We have a copy of it [the World Book] at home, an old copy we inherited. . . . My children have never used it because it is pure garbage.”

Later, when Paul asked Weyrich why he had referred to Hitler as a “clown,” Noel got his first chance in four years to explain what he meant:

German politicians [today] are extremely low-key, extremely businesslike. . . . Someone in Germany today, acting the way Hitler acted, would be seen as a clown.

Noel, I felt, had acquitted himself marvelously. Now I looked forward to spending the next day as a spectator at the ultimate spectacle: Frank Rizzo called to account not in a political rally or a press conference but in a court of law, confronted by our side’s relentless litigator, the youthful and eager Bill Lytton.

“This made me so angry, this article”

Rizzo, to my knowledge, rarely traveled alone. In my experience, he was usually accompanied by a retinue of bodyguards, aides, and followers. If he packed the courtroom with his supporters, an ugly scene might have developed.

So I was surprised, when I arrived in the courtroom the next morning, to see Rizzo standing alone by a window, fiddling absently with the Venetian blinds, accompanied only by Ben Paul, his lawyer. By contrast, our side boasted a small claque of reporters, readers, spouses, and friends. This struck me as ironic, since I had often fancied myself the voice of the lone underdog speaking up against the mob appeal of a bully like Rizzo.

Standing by himself, and at age 65 a shadow of the husky macho cop who had once intimidated street punks, Rizzo now looked out of his element. But his very lack of the trappings of power impressed me: Rizzo has the guts to show up here alone, I found myself thinking with grudging admiration.

Ben Paul’s direct examination of Rizzo quickly became not so much a question-and-answer session as an opportunity for Rizzo to vent his feelings in a virtual stream-of-consciousness ramble:

This made me so angry, this article. I am still angry about it. . . . If the writer is in this courtroom, I strongly suggest he not come near me because I might come here as a defendant. . . . I can ac- cept anything they call me, but when they refer to me with two barbarians, that is enough. That is the reason I am here. . . . It took a lot for me to do this. I know the press is here and they’re going to have a field day. . . . I want to make sure that characters like this don’t run wild again.

Rizzo spoke of his heroic deeds as a policeman, and of his good relationships with African-Americans, for he saw the Hitler analogy as an accusation of racism:

I have jumped in freezing rivers to pull out a Black kid. . . . I have been in shoot-outs to protect Blacks. . . . Limousine liberals don’t know anything about broken bodies. . . . This city couldn’t survive five seconds without the police.

For a man who professed concern about media recklessness, Rizzo on the stand was hardly a model of precision or logic. He claimed that Weyrich’s article “accused me of mass murder” (it didn’t). He called Weyrich “a little snotnose who couldn’t find Broad Street.” He said that “limousine liberals” who attack him—he cited me as an example— “only do this to get on a payroll” (I’ve never held or sought a public job in my life, and at that point I didn’t own any car, much less a limousine). In all respects, he came across as a man who believed in his right to say whatever he pleased, and his right to prevent others from doing likewise.

Rizzo’s defense

Paul’s examination of Rizzo took less than a half-hour. At this point, Judge Goodheart announced: “I want the record to show that [Rizzo] did not practice the horrors of Hitler or want to practice the horrors of Hitler or Mussolini.” These comments struck me as irrelevant, but I sensed that Goodheart was bending over backwards to soften Rizzo up for a verdict in our favor.

In contrast to Paul’s examination — which simply let Rizzo speak at will—Bill Lytton’s cross-examination was precise and linear, leading Rizzo in directions that seemed obvious to everyone in the courtroom but Rizzo himself.

LYTTON: Have you ever called anybody or compared anybody to Adolf Hitler?

RIZZO: Not to my knowledge, counselor.

Lytton proceeded to cite occasions on which Rizzo had applied Hitler analogies to the civil rights activist Jesse Jackson, to Chicago’s Mayor Harold Washington, and to the Black nationalist Louis Farrakhan.

LYTTON: Did you or did you not mean to suggest that Harold Washington and Jesse Jackson shared the same characteristics as Adolf Hitler?

RIZZO: No, I don’t think I meant that.

LYTTON: And yet you believe when you were compared in the Welcomat in one respect to Adolf Hitler, they intended to compare you with him in all respects?

RIZZO: Yes. That’s the way I feel about it.

The rest of the morning proceeded in much the same fashion — Lytton asking Rizzo about analogies Rizzo found unacceptable, then producing news clips in which Rizzo was quoted as calling people the very same names he had just said he wouldn’t tolerate being called. Sitting in the audience, my wife whispered to me, “How does Bill Lytton’s wife ever win an argument with him?”

Rizzo’s only defense against such probing was to go off on tangents about politics, race relations, and the media.

I found out that there is only one way to get back [at the media] when they present those lies that are so far out. I’ve got a battery of lawyers. . . . I am not going to tolerate it. . . . I fought for causes all my life, and I have a couple more I am going to fight for, and this is one of them.

Having personally encountered Rizzo’s “battery of lawyers,” I was unimpressed. But as he rambled on, I found myself thinking not of Hitler but of the fictitious Captain Queeg, the battle-scarred naval commander in Herman Wouk’s World War II novel, The Caine Mutiny. Queeg, you may recall, suffered a mental breakdown during a typhoon and was justifiably removed from command by his subordinate officers. But earlier in his career — when those same officers were civilians, safe and sound at home — Queeg had defended democracy on the front lines.

So it was with Rizzo, I reflected. Like Queeg, he was dead wrong in this case, dead wrong when he tried to silence public expression about him, and dead wrong to believe that the only response to ideas he disliked was a lawsuit. And yet. . . . When Susan Seiderman and I were still in short pants — when Noel Weyrich was not even a gleam in his mother’s eye — Rizzo had been on the streets, risking his life to protect Philadelphians. That was Rizzo’s real tragedy — that a man who had once fought courageously for the public now fought for himself against the public.

When Rizzo’s testimony ended, he stepped down from the stand and headed for the door. But Judge Goodheart asked him to remain in the room. It was now about noon, and Lytton made the customary motion for a non-suit — that is, that the plaintiff had failed to make a valid case. Rizzo, Lytton argued,

has come here to chill the right of the people in this city or elsewhere to speak their minds about public figures. . . . To me, this was almost crystallized during the cross-examination of Mr. Rottenberg. Mr. Rottenberg was cross-examined about his ideas, about his opinions, and he sat up here, under oath, and was forced to defend, in a sense, his ability to have those ideas, not unlike Galileo. . . . There is something terribly chilling about that. . . . I suggest, your honor, this is the time to stop the case. This is the time to say, “Mr. Rizzo, you are not a Hitler. You are not a Mussolini. . . . But you are a public figure, and when somebody expresses opinion about you, you can’t win a libel suit.”

Lytton argued that Weyrich’s essay, as opinion, was constitutionally protected. But even if it should be found that the essay was presented as factual, Lytton contended, the statements cited in Rizzo’s complaint were true facts. That is, Hitler couldn’t get elected in Germany today; and Rizzo, Hitler, and Mussolini all were politicians.

Paul, responding, argued that the lawsuit was “about correcting an injustice. . . . Malicious opinion based on undisclosed facts and some disclosed facts in his article certainly are the basis for a lawsuit.”

“There is a value to society in expressing opinions,” I said, “because if those opinions are wrong. . . . the other party has the opportunity to say, ‘Hey, that’s wrong,’ and he has the opportunity to set the record straight. Whereas if you keep the wrong opinion to yourself, he won’t have that opportunity.”

In his overwrought attempt to rebut Lytton’s statement that Hitler couldn’t get elected in Germany today, Paul argued, “That is not a fact. That is an opinion as to whether Hitler can get elected or not. I agree, the opinion is correct, but that certainly is not a fact.”

At this, the entire courtroom seemed to gasp collectively, like a scene in some Hollywood movie. For four years, we had argued that Weyrich’s essay was “opinion” and Paul had argued that it was presented as factual. Now Paul seemed to agree with us, albeit inadvertently.

“I think I just won,” Lytton said to the judge. “That’s precisely the point I wanted to make. I think he just conceded that what we are talking about here is opinion.”

Paul, clearly rattled at his fatal tactical error, shouted in reply, “What I conceded was that you are a horse’s ass!”

I looked at Susan Seiderman, sitting beside me, and she looked at me. We had always believed Rizzo’s case was flimsy, but in our wildest dreams we could not have imagined it unraveling so dramatically.

Speaking in a conversational tone, Judge Goodheart announced that he would not “do what judges usually do — defer adjudication and go back in my robing room or up to my office.” Instead, he dismissed Rizzo’s suit then and there:

My decision is, that which was written by Mr. Weyrich was opinion which was constitutionally protected. . . . I have my personal feelings about the press in this town, how they have treated judges, how they have treated Mr. Rizzo and others, and I think we who are public figures are in an unfair position. We are defenseless. . . . we cannot respond, but this is America. . . . We have an open society.

Turning to Rizzo, now sitting in the audience, the judge added:

I was not hired by you to give you advice, but I am giving you advice. I think it is over. . . . As far as I am concerned, your name was not besmirched by this article. . . . In my opinion, you were a darn good mayor.

It struck me that Goodheart was providing a service above and beyond his judicial duties—in effect delivering emotional and psychological counseling to a defeated plaintiff. And I, who in the past had criticized the mediocre quality of Philadelphia’s judiciary, had to admit that, in this case at least, the taxpayers got their money’s worth and then some.

From Rizzo to…Trump

In the years immediately following Rizzo’s death in 1991, two remarkable things happened in Philadelphia. First, the city’s supposedly insoluble financial crisis suddenly evaporated; and second, Philadelphia’s habitually negative residents suddenly started feeling good about themselves and their city. Much of this transformation was rightly credited to Ed Rendell and John Street, respectively the city’s mayor and City Council president through much of the 1990s. But an important factor, I would submit, was the removal, by death, of Rizzo’s overwhelming presence.

Yet you could argue that those tempestuous Rizzo years ultimately proved a civic blessing, forcing many habitually reticent Philadelphians to discover strengths they hadn’t realized they possessed. Rizzo’s libel suit surely brought out the best in me, not to mention Noel Weyrich, Susan Seiderman, our lawyers, and Judge Goodheart. Rizzo’s inadvertent gift to Philadelphia, I would argue, was the anti-Rizzo coalition of liberals, Blacks, Hispanics, homosexuals, feminists, and, yes, even Anglo-Saxon Protestants who shared little in common other than Rizzo’s contempt for them—that, and their mutual if unspoken belief that Philadelphia was an urban experiment worth defending. The persistence of their unlikely alliance to this day explains, to some extent, Philadelphia’s subsequent reinvention as a world-class center of arts and culture, education, medicine, cuisine, upscale hotels, and gleaming high-rise buildings the likes of which were unknown to Philadelphia during any of its so-called past “golden ages.” When Noel Weyrich — Rizzo’s “little snotnose who couldn’t find Broad Street” — contended in 1982 that Rizzo’s Philadelphia was a relic of the past, he was prescient indeed.

“Inadvertently, Frank Rizzo taught Philadelphians that we’re tougher than we thought we were,” I wrote in the Welcomat the week after he died. “The bull is gone from our china shop, and the shop is still standing. Maybe now we can stop fighting and fix the place up.”

To a large extent, that’s just what happened. But real life, unlike fiction, provides no final chapter. In 2017, the reins of the U.S. government passed to a bullying, egomaniacal, juvenile, demagogic con man next to whom Frank Rizzo was a model of public service, self-sacrifice, and mature self-effacement. In the Age of Donald Trump, Americans may yet need to re-learn the lessons of the Age of Rizzo. Nobody ever said democracy was easy.

Excerpted and edited with the author’s permission from The Education of a Journalist: My 70 Years On the Frontiers of Free Speech (Redmount Press).


The Trouble with Rizzo

Hooray! We’ve Disappeared The Frank Rizzo Statue…

The Ghosts of Frank Rizzo

Rizzo, A Modest Proposal


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