Video Exhibit 22

As the main Random House advertisement implied, critics of the Warren Commission's lone assassin thesis have never been able to completely agree among themselves about the exact nature of the conspiracy that took President Kennedy's life, although they agree that one man acting alone could not have been responsible.  The dissension, discord, and mistrust among them has made it virtually impossible to organize an effective citizens lobby for re-opening the case.  With the notable exception of the Assassination Information Bureau (AIB) during the 1970s, all other such efforts have failed repeatedly.  The critics have no "platform".  Most of them prefer to stand individually upon their own research and views. Many refrain from publicly advancing any theory of responsibility in the belief that the government has not succeeded in defending the Warren Report and still bears the burden of solving the crime.  In his public appearances through the years preceding publication of Gerald Posner's Case Closed, Robert Groden had carefully qualified his public remarks about a conspiracy in the assassination.  This was best illustrated by his participation in the original production of a widely-viewed documentary, "The Men Who Killed Kennedy" (hereafter, "TMWKK").  I raise this because Gerald Posner cited the documentary on page 468 of the original hardcover edition of Case Closed as one of his research sources.

The multi-episodic TMWKK documentary debuted on the 25th anniversary (1988) of the assassination on the Arts & Entertainment cable network, was re-run on that network before Posner published Case Closed, and was repeated many times in subsequent years on The History Channel.  It has been available for many years in home videotape and DVD editions.

Groden was credited as a "senior program consultant" and was interviewed for the documentary.  Here is what he said, in the episode entitled "The Witnesses":

"We can't know the truth unless we have subpoena power and people that want to know the truth. If they don't want to know the truth, whether it's because they don't believe in it, or because they feel that it's politically advantageous to themselves not to investigate it, then we'll never know the truth. But how can this country go on -- after a quarter of a century of this cover-up -- how can we build on that? We're building on a lie! We've got to know the truth."


"Given the nature of the President's most powerful enemies at that time, and who had the most to gain from the assassination, my feeling is that there are four groups that are suspect: the more militarily-oriented of the anti-Castro Cubans -- people who felt betrayed by President Kennedy after the Bay of Pigs; the Mob, who wanted the gaming rights back in Havana (they were losing millions of dollars every day) since Castro closed the casinos; the ultra-right wing who hated President Kennedy for virtually everything he stood for; and the ultra-right wing hawks within the CIA -- the ones who had been fired or people related to those politically who had been fired by President Kennedy after the Bay of Pigs. They all had a common goal. They wanted the president out of the way, they wanted Cuba clear of Castro and the communist threat in the Western hemisphere. They had the most to gain. They had the motive, the opportunity and the means to kill President Kennedy. If that is the cake, then the icing on the cake is the president's decision to withdraw the troops from Vietnam. That is the CIA's war. They wanted it. They wanted to promote it. They wanted to push it."


"The fact of the assassination conspiracy is beyond doubt; only the scope is in question."

A video of Groden's remarks during this interview was included in the official court record of Groden v. Random House, Inc. at al., ((VIDEO EXHIBIT 22) (Record on Appeal Document No. 19) (Videocassette)) and extensively discussed in the court papers on file. These excerpts are entirely consistent with the body of Groden's work on the subject. And they are furthermore consistent with his former editor's description of Groden's book, The Killing of a President as it was coming to market in the Fall of 1993: "His point is that a conspiracy occurred, but he doesn't claim to know who the participants were." (Michael Fragnito, editorial director of Viking Studio Books).  Groden's reconstruction of the crime (with which I do not agree in every last detail) has led him to conclude that multiple assassins indeed performed the shooting, albeit he has refrained from theorizing who they were. There is a great difference between, on the one hand, pointing out that ordinary citizens cannot determine the truth without the power of subpoena, while outlining a generally recognized list of suspected entities, but on the other hand, flatly asserting as fact that "a combination of the CIA controlled Cuban exiles, Organized Crime, and the Ultra Right Wing, with the support of some politically well connected wealthy men." carried out the assassination. The significant difference is that, in Groden's view, either of these entities might have been responsible, while in Harry Livingstone's view, they all acted in concert. The distinction was between one who merely conjured credible investigative targets, and one who advocated a massive cabal. That difference is underscored by Groden's final remark in the broadcast: "The fact of the assassination conspiracy is beyond doubt, only the scope is in question." Since Posner cited the A&E documentary as source material in his book, it cannot be gainsaid that both he and Random House were on notice of this distinction between Groden's and Livingstone's respective viewpoints before both Case Closed and its ad campaign were published. Therefore, the Random House ad campaign was false and misleading in attributing to Groden the sole authorship of a conspiracy theory that he himself did not advance and to which he never subscribed.


The issue plainly appeared from the separately dated copyright notices in High Treason, and Livingstone's claim in subsequent editions of that book to sole ownership of the work. (I will return to this point for more extensive analysis and a wrap-up of the "quote" topic in my next post.)  Since the ad campaign did not identify High Treason as the source of the quotation, readers had no way of knowing that Groden never expressed the view stated in the ads, and that the attribution was misleading. And since Groden had a more current book of his own in the distribution chain, which was well-publicized in the publishing trade press, the anti-competitive intent of the ads was manifest: Don't buy Groden's book, buy ours instead.


Some people may regard this difference as unimportant, e.g., Groden believes there was a conspiracy, therefore, he is a "conspiracy theorist", and the details of his belief system are of little consequence. However, to one who is highly concerned about appearing sober, credible, and persuasive to his audience; is vulnerable to the "assassination sensationalist" and "conspiracy theorist" stereotypes; and is also justifiably concerned about protecting the integrity of his message in the commercial marketplace of ideas, the difference in messages is quite substantial, and the same may be said of his audience and their receptiveness to the message as well. This was the heart of Groden's matter against Random House, The New York Times, and Mr. Posner. This was the essence of their misrepresentation: the presentation of Groden as "author" of a widespread political conspiracy when, in fact, he has merely demanded of the government a plausible answer to the question, "Who killed President Kennedy?"
 
The crux of the issue Groden raised was that, if he didn't write the words attributed to him in the advertisement, and they do not reflect his views, then the advertisement mischaracterized the nature of his commercial activities, was therefore false, and damaged him.
 
Next: Copy-Right, Copy-Wrong, and Intentional Fraud by the U.S. Court of Appeals