By Marty Appel, October 27, 2016

Warren Spahn died in 2003 at the age of 82, and his legacy in baseball not only remains strong, but some of his accomplishments may never be matched in our lifetime.

He is, for instance, the winningest left-hander in baseball history (363), a total so high that it remains the most wins by any pitcher in the last 100 years. As we are now in an era where 300 seems fairly unlikely to be achieved, it seems safe to say that we will pass the game on to future generations with that benchmark intact.

The active leader today among left-handers is CC Sabathia with 223, followed by Jon Lester with 146. Clayton Kershaw has 126.

Spahn was selected for All-Star teams in 14 seasons and won 20 games 13 times, leading the league eight times. He was 25 when he won his first game, 44 when he won his last. He pitched two no-hitters for the Milwaukee Braves, in 1960 and 1961, when he was over 40 years old. He won the Cy Young Award in 1957 and a World Series ring in the same season.

And he earned a Purple Heart for his World War II service, which included combat at the Battle of the Bulge.

The high-kicking six-footer from Buffalo, New York, first reported to the Boston Bees in 1942, where Manager Casey Stengel cut him after two winless starts. (He pitched for Casey again with the New York Mets in 1965 and told people, “I pitched for Casey Stengel before and after he was a genius.”)

With the pennant-winning Braves in 1948, Spahn and Johnny Sain led the pitching staff, and Boston Post sports editor Gerald Hern wrote a poem that included the line, “Back will come Spahn followed by Sain and followed we hope by two days of rain,” which became part of baseball lore as the shortened, “Spahn and Sain and Pray for Rain.”

(In reality, Spahn won only 15 that year, just two more than Bill Voiselle. Sain had 24. But never mind the details.)

For the purposes of this column, all of that brings us to a 1958 biography of Spahn (The Warren Spahn Story), written by Milton J. Shapiro and published by Messner.

Image courtesy of Marty Appel.

It was pretty standard practice at that point to turn out quick biographies on sports heroes. Spahn, just off a Cy Young season and a world championship, was a likely figure for such treatment. The book sold about 16,000 copies, which was pretty good for a player in a small market like Milwaukee.

Messner had been turning out books like this fairly regularly, often written by Gene Schoor or Shapiro. Shapiro, in fact, actually ghostwrote some Schoor books when Gene was backed up. (This ended in 1967 when Shapiro demanded coauthor credit on a Bob Feller bio, which led to an angry breakup of the duo.) The books were aimed at the teen market, but easily fit the bookshelves of any baseball fan. Libraries gobbled them up.

Messner Publishing began in 1933, and when Julian Messner died in 1948, his ex-wife, Kathryn, took over the company. It was quite unusual for a woman to head a publishing company then, but Messner ran successfully under her guidance, publishing the blockbuster novel Peyton Place in 1956. They churned out a lot of Schoor books—bios of Ty Cobb, Jackie Robinson, Ted Williams, Casey Stengel, and more. Shapiro said he ghostwrote profiles of Sal Maglie, Jackie Robinson, Leo Durocher, Pee Wee Reese, and Joe DiMaggio under Schoor’s name. Shapiro did his own on Mickey Mantle, Willie Mays, Hank Aaron, and Roy Campanella, among others.

Shapiro turned in his Spahn manuscript after the 1957 season.

Without anyone on staff to fact-check each statement, the manuscript was accepted as presented. It was quite laudatory, and nothing in it suggested the possibility of defamation or libel.

But celebrities are seldom happy with unauthorized biographies for which they receive no payment and that might cost them the chance at a first-person book.

As Shapiro’s account had exaggerated or misstated aspects of Spahn’s life, Warren and his attorney decided to sue for $175,000.

Shapiro’s The Warren Spahn Story claimed Spahn won a Bronze Star for valor. He did win a Purple Heart, but not a Bronze Star. Spahn took the position that overstating his honor was an embarrassment to him.

The book had him in charge of “repairs of the Bridge at Remagen”—a place where he had never been. He had not “raced out into the teeth of the enemy barrage” and had not been “rolled onto a stretcher.”

The romantic reunion with his future wife upon his return from war had been fictionalized. He had not walked into the house and surprised her; he had called from the train station where she had met him.

Further, a description of Spahn’s relationship with his father had been exaggerated. His father had not taught him how to pitch. And matters of personal self-doubt and confidence had been invented. Dialogue was created that had never been spoken.

Shapiro admitted that he had never spoken with Spahn, Spahn’s friends, Spahn’s fellow soldiers, Spahn’s teammates, or with representatives of the Milwaukee Braves. He claimed that his sources were newspaper articles, magazine stories, and general background books, upon whose accuracy he depended. Messner’s lawyers claimed First Amendment protection and noted that biographies aimed at a juvenile audience needed to create dialogue, maintaining that the practice was customary and widespread.

This defense did not impress the court. In May 1964, the New York State Supreme Court found Messner guilty and awarded Spahn $10,000 and legal costs. Both sides appealed over the next several years—Spahn seeking more money and Messner seeking dismissal. The verdict withstood the challenges.

As Michael Bamberger, a publishing and First Amendment lawyer with the global law firm Dentons, explains:

There is a branch of the right of privacy which is accepted in many states called “false light.” It is different, but somewhat related to defamation. Liability for invasion of privacy for “false light” requires that information . . . published portraying a person in a false or misleading light . . . was reasonably embarrassing or offensive to the person. For example, publishing a stock photo of a baseball player next to an article entitled “Drug Use Rampant in the Major Leagues” could lead to liability even though the article did not mention the pictured player. The Spahn case was unusual because the false statements were laudatory rather than defamatory. Nevertheless the courts ultimately found that, in this unique case (perhaps because Spahn was basically a very modest person), the false statements were embarrassing and offensive to Spahn, and found for liability. While I believe the concept underlying the Spahn case remains valid and the case has never been overruled, I do not know of any other reported case where a plaintiff has successfully claimed damages for “false praise.”

Did this change the course of biographies by authors? Not much. But lawyers at publishing houses know of the case and monitor questionable “facts”—whether positive or negative.

“If a biography is defined as an account of a person’s life and times based on research and [is] thought by the biographer to be accurate, then the Spahn case hasn’t affected biographers at all,” says Neil Rosini, an attorney with Franklin, Weinrib, Rudell and Vassallo. “Rather, it serves as a warning to those who would pass off fiction as biography that the First Amendment—which protects actual biographies whether or not authorized by their subject—offers them no defense.”

According to a summary of the Spahn case published by the University of Tulsa College of Law, “The courts concluded that one ‘should not be exposed, without his control, to biographies not limited substantially to the truth.’ The authors of biographies such as Spahn’s must either gain the consent of the subject to sensationalize his or her life or print only a factual account.”

Kathryn Messner died three months after the verdict. Messner had to cease and desist in the sale of The Warren Spahn Story and was required to recall books in stores, but the 16,000 “out there” couldn’t be recalled. The company was sold to Pocket Books, then acquired by Simon and Schuster, where it continued to produce children’s books until shutting down in 1999.

Messner backed Shapiro, not only in court, but also in business, continuing to publish him through 1972, when he gave them A Treasury of Sports Humor, his last sports book. By then, Shapiro had moved to England and largely switched to World War II histories, which he produced into the 1980s.

Spahn earned his 300th win on August 11, 1961. He went on to win a total of 363 games, was inducted into the National Baseball Hall of Fame in 1973, and is considered one of the greatest left-handed pitchers of all time.