Elmer Gertz; Plaintiff in Key Libel Case

Attorney Elmer Gertz was once called the Chicago legal world’s equivalent of the “2,000-Year-Old Man,” the classic Mel Brooks character who had seen everything and knew everybody.

That was a slight exaggeration.

Gertz was only 93 at his death Thursday in a Chicago nursing home, three months after suffering a heart attack. But over a seven-decade legal career, he built a client list that included two of the past century’s most famous murderers: Nathan Leopold and Jack Ruby. He defended “Tropic of Cancer” author Henry Miller against obscenity charges. He counted Carl Sandburg, Eliot Ness and George Bernard Shaw among his acquaintances. And he was perhaps the last person who knew Clarence Darrow well.

Gertz’s name is also embedded in the minds of several generations of law and journalism students as the plaintiff in a landmark case that redefined libel law.

“He was one of the really great figures in Chicago legal history,” said USC law professor Erwin Chemerinsky.

Gertz, a Chicago native, grew up in a series of orphanages after his mother died when he was 9 and his father, strapped with six children, could not afford to raise him.

A graduate of the University of Chicago, he rose to national prominence in the 1950s when he took over as counsel to one of the century’s most notorious killers. Nathan Leopold and Richard Loeb had been convicted in 1924 of the thrill murder of 14-year-old schoolboy Bobby Franks. Leopold and Loeb, who were only a few years older than their victim and came from the same well-to-do Hyde Park neighborhood, had offered Franks a ride. Loeb was the one who delivered a fatal blow to the boy’s head with a chisel, but Leopold drove the car in the motiveless crime that shocked the nation.

Darrow, the most celebrated defense lawyer of the early 20th century, successfully argued that the killers were mentally ill, saving them from the death chamber. Gertz remembered Darrow as a “very informal, very simple” man who never talked down to him. “He was completely committed to opposing the death penalty. As I am,” he told the Chicago Tribune a few years ago.

Gertz entered the Leopold case in the late 1950s when Leopold’s older brother, who belonged to a history group the lawyer helped found called the Civil War Roundtable, asked him to become involved. Gertz prepared for a year, winning Leopold’s parole in 1958 and full freedom in 1963.

The lawyer was so convinced of his client’s rehabilitation that he allowed his wife to join Leopold in one of the convicted killer’s favorite pastimes: bird-watching in the woods.

“Prepare, prepare, prepare,” Gertz advised students at John Marshall Law School during a lecture in 1998. “You owe that to yourself and your client, even if you don’t get paid.”

He was never paid for representing Ruby, the man who shot President John F. Kennedy’s alleged assassin, Lee Harvey Oswald. Gertz stepped into the case after Ruby was found guilty in 1964, “a time when most of the legal betting was that [the] conviction would no doubt be upheld,” said Victor G. Rosenblum, a Northwestern University law professor who knew Gertz. In 1966 Gertz won a reversal on grounds that the trial had been tainted by massive publicity. Ruby died in prison of natural causes in 1967 before the case could be retried.

Gertz’s most lasting contribution to the law came, not as a litigator but as a plaintiff when, in 1983, he won a 14-year legal battle against the John Birch Society. Gertz had invoked the Birchers’ ire when he represented the family of a boy shot in the back by a Chicago policeman in a lawsuit against the officer. A 1969 article in the society’s house organ, American Opinion, accused Gertz of being a “communist fronter” plotting to frame the police officer, who was later convicted of second-degree murder.

Gertz sued the magazine’s publisher, Robert Welch, for libel but lost in two lower courts. His suit finally reached the U.S. Supreme Court in 1974, which remanded the case. But nearly a decade would pass before it came to trial again, resulting in nearly $500,000 in compensatory and punitive damages for Gertz.

Gertz vs. Welch expanded the instances in which a plaintiff could be deemed a private citizen and thus entitled to more protections from the press. The case reversed a trend of expanding protections for the media.

“You can’t teach 1st Amendment law without teaching Gertz v. Welch. It’s the bedrock case for modern libel law,” said David Protess, a journalism professor at Northwestern University.

The case is considered one of the two most important libel cases ever decided by the Supreme Court. The other was Sullivan vs. the New York Times in 1964, in which the paper had been sued by the Montgomery, Ala., police commissioner for publishing an ad that the official found defamatory. The court held that the freedom of the press was infringed on if it had to prove the factual accuracy of every statement about a public official. Herbert Wechsler, the attorney who successfully defended the newspaper in that case, also died this week.

The Gertz case began a trend toward balancing the rights of individuals against those of a free press. This development was disturbing to Gertz, who was a leading civil libertarian.

During the 1960s he represented bohemian author Miller in many of the more than 60 obscenity trials that stemmed from the 1961 Grove Press publication of “Tropic of Cancer.” One of Miller’s most important works, it was banned in the United States for 27 years after its 1934 publication in France, because of its candid descriptions of sex.