‘Ghastly Drama’ : Death Spurs Novel Legal Challenge

The news accounts, now 70 years old, offer only fragments of the “ghastly drama” that surrounded the marriage of Mary Kenan Flagler Bingham, “the richest woman in America.”

She was the widow of Standard Oil co-founder Henry Flagler and her estate was worth between $60 million and $100 million. Her bridegroom was Judge Robert Worth Bingham, a Kentucky lawyer without independent means. Their wedding in 1916 made headlines, even in New York. And so did her mysterious death eight months later.

Whispers of foul play spread quickly, fueled by the discovery that, while Bingham initially had renounced any inheritance from his wife’s estate, a few weeks before her death Mary had signed a codicil to her will granting him $5 million.

Secret Midnight Exhumation

Mary’s family was so suspicious it hired private investigators and conducted a secret midnight exhumation and private autopsy. Bingham’s lawyers countered in outrage that “when, if ever, whispered suspicion shall become an audible charge, such charge will be met with facts.”

The charge, however, never came. The autopsy results were locked away. Mary’s family suddenly dropped its inquiry. And Bingham took his $5 million and bought the Courier-Journal and Times newspapers in Louisville.

Thus was born the Bingham dynasty of Kentucky, for the next 70 years one of America’s great journalistic families.

Last month, Macmillan Publishing Co. was to have brought out a book, “The Binghams of Louisville” by David Chandler, which seeks to explain Mary Flagler Bingham’s mysterious demise.

Publication Suspended

But now, following receipt of a unique copyright challenge from Barry Bingham Sr., the current family patriarch, Macmillan has suspended publication of the book indefinitely.

After seeing “The Binghams of Louisville” in manuscript, Barry Sr., Judge Robert Bingham’s son, copyrighted material he had earlier placed in a Louisville archive open to historians. In an even more unusual step, he also copyrighted the written answers through which he previously had replied to Chandler’s questions.

In a letter accompanying the copyright notice he sent to Macmillan, Bingham charged that Chandler’s book inaccurately depicts Mary’s death.

“My motive is not to suppress this or any other book,” Barry Sr. said in an interview, “but to make them as accurate as I can with reference to my father.”

Whatever his intention, the squabble not only has renewed interest in Mary Bingham’s death, but also aroused concern among First Amendment specialists, who were alerted to the Bingham story when Chandler and a dissident Bingham heir charged that the family is indeed attempting to suppress the book through its novel use of the copyright law.

“What the Binghams seem to be doing is using copyright to suppress speech of which they disapprove, which is especially troubling,” attorney Floyd Abrams said. “That is not what the copyright laws were supposed to be about.” Abrams’ concerns were first voiced by Barry Sr.’s estranged daughter, author Sallie Bingham, who recently wrote letters to book editors and newspaper executives around the country, charging her father with using “legal intimidation . . . to chill” publication of Chandler’s book.

Barry Sr.’s attempt to copyright his written answers to Chandler, Sallie Bingham argued, threatens “all authors who depend on interviews for information . . . when the conclusions they draw from interviews are unflattering.” Sallie is writing her own book about the family.

This flurry of literary interest in the Bingham dynasty was piqued in 1986, when feuding between the Bingham heirs, including Sallie, over seats on the corporate board led Barry Sr. to sell the publishing empire to Gannett Co.

Book About Flagler

About the same time, Chandler had just completed a book about Mary Lily Kenan’s first husband, Henry Flagler, John D. Rockefeller’s partner in Standard Oil, owner of the powerful Florida East Coast Railway and founder of both Miami and Palm Beach, Fla. When he finished with Flagler, Chandler moved on to the Binghams, using what he had learned of Mary Flagler’s last years as a starting point.

Robert Worth Bingham had courted Mary Lily Kenan back in the 1890s, in their youth, before he had gone on to become a judge, mayor of Louisville and a husband with three children. In 1913, after he and Mary Flagler were widowed within a few weeks of each other, Bingham, whose own financial means were limited, renewed the old courtship. Three years later they were married, though the judge--to prove his intentions honest and under pressure from Mary’s family--had to forswear any legal claim on his new wife’s fortune.

Within weeks, however, something clearly was wrong. Mary was shuttled off to a Louisville hotel and placed in the care of one of Judge Bingham’s friends, a Louisville dermatologist. It was during this period that she revised her will to include a bequest to her new husband.

‘Acute Heart Disturbance’

Mary deteriorated and on July 27, 1917, died, the cause, according to the New York Times story of the day, “acute heart disturbance.”

Rumors in the New York papers whispered that doctors had found traces of morphine in Mary’s system. The Kenans, though they stood to inherit as much as $95 million, balked at giving Bingham his $5 million.

Two months later, according to Bingham’s documents, the Kenans assembled a team of renowned doctors from Chicago, New York and Baltimore, brought them by special railway car to Wilmington, N.C., where Mary had been buried. After midnight the doctors were driven in curtained limousines to the cemetery to exhume the body.

They performed a “hasty autopsy”--the New York specialist getting “quite sick” from either fear or odor--and tissue samples were sent on the train to New York for a more complete examination.

The results, however, were never released. Soon afterward, the Kenans mysteriously dropped their opposition to Bingham’s inheritence.

The judge went on to build one of America’s most respected newspapers, a champion of liberal causes, and in 1932 President Franklin D. Roosevelt appointed him ambassador to the Court of St. James’s.

Death Largely Unexplored

In the years since, the cause of Mary Flagler Bingham’s death, which may or may not be hidden in a locked box closely guarded by the Kenans in Chapel Hill, N.C., has remained largely unexplored. Today, as the story has resurfaced, the explanations of her death seem to range from the sad and wretched to the scandalously bizarre.

Barry Bingham Sr. believes his stepmother died from alcoholism, which his father discovered only after their marriage--a theory he bases on a document from a Baltimore doctor and friend of Judge Bingham enlisted to help cure her.

Bingham failed to offer this theory to Chandler, however, because he did not discover the document until he began his own research to refute the author’s book.

Chandler, instead, outlines six far more explosive possible explanations of Mary Flagler Bingham’s death, all of them pointing blame at Judge Bingham.

The least extreme, Chandler said, is that the judge “caused her to be addicted to morphine and she unexpectedly died due to lack of medical attention.”

The most sensational--and the one to which he gives greatest weight--is the theory that America’s richest woman “died of the ultimate complications of tertiary syphilis,” a disease Chandler claims she may have contracted “25 years or more” before it killed her.

Dramatic Speculation

To this Chandler proposes an even more dramatic scenario: “Tracing it back, the likelihood was that she received it from Robert Worth Bingham” during their earlier courtship, though Chandler cautioned this is strictly speculation.

This, Chandler believes, “answers the question why Mary Flagler was in the care of a dermatologist rather than a heart specialist. In those days dermatologists treated syphilis. It also explains the curious settlement of the Kenan family, obviously not wanting a scandal of that sort.”

To Bingham, however, the syphilis notion is Chandler’s wild invention, drawn from the presence of a dermatologist and Chandler’s desire to make his book dramatic. And the notion that Judge Bingham caused that disease, Barry Sr. contends, is scurrilous fantasy, and he has medical records to prove it.

To make matters worse, Bingham contends, Chandler’s conclusions are based only on hearsay; he has never actually seen the autopsy reports, which if they still exist are held by the Kenans.

This is one of the few points on which Chandler and Bingham agree. But Chandler argues that through phone calls and letters he was “allowed to ask questions of the (Kenan) family historian, Tom Kenan,” who then researched his questions in a collection of family papers that Chandler said do include whatever medical reports still exist.

Kenan did not return phone calls for this article.

Interpretation of Challenge

The two sides even disagree as to what Bingham’s copyright challenge means.

In his letter to Macmillan accompanying the documents he sent, Bingham wrote that his documentation “should in no way be construed as a threat to initiate litigation or as reflective of any intent to coerce a particular result.”

“The whole point here,” Bingham family attorney Gordon Davidson said, “is publish all you want, but do it truthfully and accurately.”

Copyright attorney Carol Rinzler, however, said that the point of registering copyright in a situation like this is that it ties up a legal loose end and allows one to sue.

Is Bingham considering suing for copyright violation if the book is published as is?

“That issue has not been discussed, and I have no comment on it,” Bingham lawyer Davidson said.

According to Chandler, “What is at issue is whether the book in terms of dollars is worth a further legal battle with Barry Bingham.”

Macmillan itself is saying little. “We have no position as to when the book will be published,” Macmillan general counsel Beverly Chell said in an interview. “We are reviewing the book as we do any work of nonfiction.”

Some Inaccuracies Found

Macmillan also sent the manuscript to the Filson Club archives in Louisville, where the Bingham records are housed. Scholars there also found inaccuracies--some of them major--and have sent corrections to the publisher.

Now, Chandler said, Macmillan is considering whether to publish, publish with revisions, or cancel publication altogether.

In simple terms, copyright grants people the right to own and control the use of printed documents, such as private letters, just the way they own and control land or a home.

To balance those property rights against free speech, the law allows authors to use the ideas and facts from those documents without permission, and even to “borrow” some of the words themselves, as long as that borrowing is limited to what courts call a “fair use.”

According to some copyright attorneys, however, two recent cases have significantly extended owners’ control of their documents, and these have inspired the Bingham challenge.

In one, the Nation magazine vs. Harper Row, the Supreme Court ruled that the magazine exceeded fair use by publishing a 2,250-word article--with only 300 words quoted verbatim--about former President Gerald R. Ford’s still unpublished 200,000-word memoirs.

Extensive Paraphrasing

In the other, completed just this year, reclusive author J. D. Salinger stopped publication of a biography that extensively paraphrased his private letters, which the biographer had found in various libraries.

Bingham’s position, his attorney Davidson said, is “following the parade” from Salinger. Bingham’s situation differs from Salinger’s, however, in two important respects, attorneys said. Salinger wanted no books published about him until after his death. Bingham is not trying to discourage books in general, but objects specifically to Chandler’s, which he considers inaccurate and biased.

The other difference is Bingham’s more novel attempt to copyright a letter that was originally written as a response to the author’s questions. Salinger’s letters were written to friends as private correspondence.

Copyright expert and Stanford University law professor Paul Goldstein said that legally the Binghams probably have every right to copyright material after seeing Chandler’s book. What may be open to interpretation, however, is whether donating documents to an archive that allows any qualified author access means that the Bingham papers are already in some manner published, Goldstein said.

In addition, while copyright law does not make any distinction between motives for asserting copyright protection, “if the Binghams are saying on the record that their motive is to stop an interpretation of history they disagree with,” Goldstein said, “that might raise questions in a court’s mind.”

Fair Use Doctrine

Generally, however, attorneys said the fair use doctrine in copyright generally provides adequate protection for authors to publish, while the right of copyright, in Rinzler’s words, “is very important to society. If it is used on occasion in what some people would call a suppressive way, I think that is a small evil we must put up with.”

But others are more concerned. “I don’t think one can yet say it is in vogue” for people to “use copyright to suppress speech they find discomforting,” said Abrams, one of the principal attorneys in the Nation case. “But it is one of the dangers of the Salinger decision” that it might happen.

In 1933, Judge Bingham’s close friend, Baltimore doctor Hugh Young, wrote a long letter explaining that he also once tried to investigate Mary Flagler Bingham’s death. He interviewed the doctors who had conducted the autopsies, became convinced there was “no evidence of poison or foul play,” and then sought out Mary’s family to clear Judge Bingham’s reputation.

When the Kenans refused, Dr. Young urged Bingham to sue.

No, Bingham said, according to Young’s letter. “Although he, an innocent man, had been done a grievous wrong . . . he preferred to bear the odium which remained in the minds of certain people” rather than expose his wife to scandal, Young wrote. His heirs, apparently do not agree.