Libel & the Media
Reckless Disregard: Westmoreland v. CBS et al., Sharon V. Time.
by Renata Adler.
Knopf. 243 pp. $16.95.
In two articles published last year in the New Yorker, Renata Adler leveled a stinging attack on the press and the lawyers who defend the press. The Columbia Broadcasting System, in her view, libeled General William Westmoreland in a CBS News 90-minute documentary (The Uncounted Enemy: A Vietnam Deception) by falsely claiming that he had been part of a “conspiracy” to “suppress and alter critical intelligence” on the enemy in Vietnam (specifically, by undercounting the size of enemy forces operating in the south). Time magazine defamed Israeli General Ariel Sharon by claiming that he had “discussed with the Gemayels” (a ruling Lebanese family) “the need for the Phalangists to take revenge for the assassination of Bashir” (a Gemayel family leader), thereby encouraging the Phalangists to conduct a massacre in the Palestinian refugee camps of Sabra and Shatila.
Moreover, when called to task by Westmoreland and Sharon, both media giants denied all wrongdoing, went (in Miss Adler’s view) to great lengths to conceal the results of their own internal investigations of the matters (investigations that apparently raised serious doubts as to the accuracy of both stories), and employed lawyers who waged a root-and-branch defense of the press and a vigorous assault on Westmoreland and Sharon.
Miss Adler’s articles became a cause célèbre, leading to attacks on her by various lawyers and journalists who accused her of making errors of her own. Long letters criticizing the magazine pieces were sent by CBS and Time to the New Yorker and to other publications. As if matters were not already complicated enough, Miss Adler was herself pursuing a libel suit against various media, including the company that happened to own both the New Yorker, where her articles appeared, and Alfred A. Knopf, which published the book version.
The book contains the magazine articles together with a coda in which Miss Adler takes up some of the criticisms made by CBS and Time, offers her rebuttal, and extends and elaborates on her criticism of the trial conduct of the lawyers and witnesses for these corporations.
It is not an easy book to read. It is written in a style so convoluted as at times to defy comprehension. One sentence runs on for nearly two pages; other sentences meander through the potholes of so many parenthetical expressions as to make it nearly impossible to follow the trail of the argument; virtually every sentence is peppered with enough commas to make the prose read like a series of hiccups. The narrative skips back and forth between the two trials, leaving the reader to puzzle out what is happening, unaided by chapter titles, a table of contents, or an index.
But the book does convey, quite convincingly, certain major themes. First, Generals Westmoreland and Sharon were badly treated. In the Sharon case, the jury found that Time magazine had published false and defamatory statements about General Sharon and that certain Time employees, particularly correspondent David Halevy, had acted “negligently and carelessly in reporting and verifying the information which ultimately found its way into the published paragraph of interest in the case.” As part of a settlement before an Israeli court, Time admitted that there was no evidence of any discussion of revenge between Sharon and the Phalangists.
There was no jury finding in the CBS trial because, on the advice of his lawyer, General Westmoreland dropped the case. It was widely argued in the press at the time that Westmoreland had discontinued his suit because the testimony was running against him. From reading those press accounts I believed that theory. Miss Adler leads me to think that I may have been wrong. Her review of the evidence leaves little doubt that the CBS documentary produced by George Crile was slanted, incomplete, and tendentious, and that the bulk of the testimony adduced in depositions and at the trial fully supported General Westmoreland’s claim that he had not manipulated U.S. estimates of North Vietnamese troop strength.
Crile based the CBS program on the arguments of a former CIA analyst, Sam Adams, whom CBS paid as a consultant and then filmed (after extensive coaching) as an interviewee. Witnesses in a position to know the truth and who later denied the CBS version were not shown on the program. These included former Secretary of Defense Robert S. McNamara, former National Security Adviser Walt Rostow, and retired General Philip Davidson, former chief of intelligence to General Westmoreland. The two officers who were the chief military witnesses for CBS, and whose testimony was widely interpreted as being so damaging to General Westmoreland, did not in fact acquit themselves well on cross-examination, providing little or no direct evidence of any cover-up or intelligence manipulation. No brief summary can convey the significance of Miss Adler’s review; interested readers will have to plow from page 77 through 132 of the book. If they do, I believe they will find there a compelling account of key defense testimony slowly disintegrating.
As against her account, based almost entirely on the written transcript, there is the testimony of other reporters at the trial (who seemed to think Westmoreland had a weak case) and a poll of the jurors that reportedly indicated they were leaning toward CBS. Of course, they had not yet heard all the testimony or any of the closing arguments.
Though the generals were defamed, they apparently were not libeled, and thus even General Sharon could obtain no remedy. The standard that the Sharon jury was instructed to apply (and that the Westmoreland jury would have been instructed to apply) was enunciated by a unanimous Supreme Court in the 1961 case of New York Times Co. v. Sullivan. State libel laws, the Court held, are governed by the First Amendment protection of free speech and press, especially where public officials are involved. To ensure that debate on public policy is robust, one must allow it to be vehement and even caustic. A statement about an official may be false and damaging, but the official cannot obtain a judgment unless he can show that the statement was made with “actual malice”—that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Not long after the New York Times rule was announced, the Court began extending its protection to persons who, though not public officials, were “public figures.” But who is a public figure? The Court has backed and filled on this, holding, at various times, that an army general, a real-estate developer, a party to a labor dispute, and a candidate for the state legislature were public figures but that a big-time college football coach, an attorney in a newsworthy law suit, a wealthy woman in a publicized divorce case, a political adviser to former Vice President Spiro Agnew, and the founders of the La Costa resort in California were not public figures.
The Supreme Court managed to accomplish with respect to libel law what it has done with regard to the law defining obscenity and governing police searches—make it so complex, confusing, and changeable that hardly anyone, least of all a jury, is likely to understand it without deep study. In the Sharon case, the judge dutifully inducted the jurors into the mysteries of libel law and gave them some forms on which to record their answers to the key questions. As we have seen, they answered the first two questions—was the Time story defamatory? was it false?—in the affirmative. But they could not say that “clear and convincing evidence” supported the conclusion that the false and defamatory part of the story was published with “actual malice.”
This is the core of the legal issue raised by the case. Should a person, such as General Sharon, have no remedy against false and defamatory statements unless he is able to prove, clearly and convincingly, something about the mental state of the reporter (it was filled with actual malice) or about the procedures followed in producing the story (they displayed a reckless disregard for finding the truth)? No other democratic nation erects so formidable a barrier to libel suits as does the United States with the New York Times rule. No other nation requires the plaintiff to investigate the mental state and reportorial procedures of the media and in so doing to assume the burden of proof. In England, for example, the media must prove the truth of the defamatory statement; here, the plaintiff must prove its falsity. Of course, just because the U.S. has a unique policy does not make it a wrong policy, but it does make one wonder whether there might be a better way.
One consequence of the special rules limiting the claims of public officials and public figures is that a libel trial, as in these cases, can be incredibly expensive. To establish whether or not a statement is false and defamatory is one thing; to establish, by clear and convincing evidence, that somebody harbored actual malice is many times more difficult. As a result, a public official who brings such a case must seek large damages in compensation not only for the injury he has suffered but the expense he has incurred. (Much of the legal costs of the two generals was borne by private donations of money and time. But not many public figures are likely to attract such contributions.) As the financial stakes rise, the tendency of the media to admit nothing and mount a vigorous counterattack rises. The richest media have the biggest resources with which to fight back, and so the most pervasive and influential media—the television networks and the national news magazines—are best equipped to get away with defamation (both CBS and Time were represented by Cravath, Swain & Moore). And the richest and most powerful medium, network television, is also that form of communication most widely used and trusted by the American people.
But the costly and bewildering world of libel law does not simply empower the rich. It also lures almost everybody with a chip on his shoulder. Other people, including at least one journalist, who took offense at Miss Adler’s characterization of them have threatened to sue her. She may have to face a libel trial for what she published about another libel trial in a magazine owned by a firm she was suing for libel.
What is going on here? Despite the restrictions on public figures’ winning, such suits, or threats of suits, abound. Libel law seems to be proceeding down the same slippery slope as product-liability law—when in doubt, sue; sue the deepest pockets first; get some absurd award that will then be reduced on appeal; and above all keep the lawyers prosperous. America, it has been said, has an adversarial political culture. That has its benefits (we are acutely conscious of our rights) but it also has its costs (we are all enemies to one another).
One could imagine making changes in our libel law which, while maintaining a free and vigorous press, would reduce the incentive to go for big-bucks awards and at the same time give public figures some reasonable defense for their reputation. One possibility is to modify the New York Times rule so that “actual malice” need not be shown. An alternative standard would simply be truth or falsity, with the burden on the plaintiff to prove falsity. The jury would be asked to decide whether a statement was false and defamatory, not what was in the mind of the reporter who wrote it.
But this standard might leave the press vulnerable to ruinous damages for what were innocent errors. (In the original New York Times case, the defamatory statement was an advertisement criticizing how the Montgomery, Alabama police department treated blacks. It contained minor factual errors, but Alabama juries awarded damages of $500,000 to the police commissioner and $500,000 to another commissioner; other officials brought suits totaling $5.6 million.) To guard against this, one could limit the damages that might be recovered or provide alternative remedies.
For example, proof of defamation might lead to the mandatory publication of a retraction, together with the recovery of legal fees. In addition, as Steven Brill has suggested, the offending medium could be required to pay (if a newspaper) a sum equal to three times the cost of a full-page ad or (if a broadcaster) three times the cost of a two-minute commercial. That system of what I call “space fines” would scale the monetary damages to the size and profitability of the medium—the New York Times might be out $60,000, but the East Overshoe Gazette would be out only $600. The plaintiff could pocket the money or use it to run some ads.
One can imagine other possibilities. But on these matters Miss Adler’s book is largely silent: she raises the legal issue but does not discuss any alternative standards or remedies. In various places she seems to deplore the existing state of the law, but in her coda, she makes no recommendations for change—and she does so for manifest ideological reasons: “With the composition of the new Court . . ., the likelihood is that any change in Sullivan [as the New York Times case is also known] would be only, and radically, for the worse.”
Come, now. We are not supposed to discuss the law for fear Chief Justice Rehnquist will take our advice? If the Court moves libel law in the wrong direction (and I see no indication it is likely to do so), it will not be because we writers have kept our thoughts secret. Indeed, the full discussion of alternatives is the best possible way to reduce the likelihood of bad decisions. Moreover, the question of remedies can be addressed to some degree by legislation.
The central thrust of Miss Adler’s book is not, in fact, the law of libel at all; it is the responsibility of the press and the extent to which it has, in her view, defaulted on that responsibility. This nation once was served by a press that with few exceptions was partisan and unscrupulous. Some nations are still so served. Here and today, however, we have embraced the view that news is different from opinion and that the major news-reporting organizations have an obligation to be as fair and careful as the exigencies of daily or weekly publication permit.
It is easy to see how Time might have erred. It had a story. It believed it was true. Given the confusion surrounding events in the Lebanese refugee camps, the secrecy of the Israeli investigation into the massacre, and the difficulty of being certain whether a reporter on the scene had actually and reliably confirmed his story, it was understandable that a story later shown to be false might have been printed. What is hard to understand or forgive is the decision of Time to “stand by its story” in the face of mounting evidence—ultimately, evidence deemed wholly persuasive by a federal jury and confirmed by the highest levels of the Israeli government—that David Halevy could not produce factual support for the damaging report. Most people would hope, and Miss Adler expects, Time to say something like this: “We will check into it, we will give a full public account of what we have learned, we will retract the story and issue an apology if we find we cannot substantiate it.” It did not.
It is much harder to justify CBS News going forward with the Crile documentary. There was no daily or weekly or even monthly deadline to meet; the events alleged to have happened had happened years earlier. There need not even have been such a documentary. There was plenty of time to check and double-check the facts and to ensure that all sides were adequately interviewed. How can the same organization that tries to do a good job with its nightly news program do so poor a job with this documentary? As Miss Adler describes it:
The CBS defendants were not “press” at all; they took a thesis; found witnesses more or less to support it; interviewed those witnesses; and cut those parts of the interviews which did not support the thesis; found the arch-villain, according to the thesis (and cut to those moments when he looked angry, shifty, ill at ease) . . . rehearsed and re-interviewed some friendly witnesses; found reasons not to interview other witnesses, who had information that would undermine the thesis; composed a script for Mike Wallace, in his adversarial style, to grill some witnesses and coddle others. In short, they were acting not as press but as producers and directors casting for a piece of theater; and that theater was a court.
Unlike Time, CBS did conduct an elaborate and independent investigation of the case, the so-called Benjamin Report. Nevertheless CBS News, like Time, still said that it “stands by the broadcast.”
Time, like many news magazines, has a fairly elaborate procedure to check on the accuracy of materials before they are published. Because of these procedures, it had earlier placed David Halevy, the Sharon reporter, on probation for poor journalistic work in reporting the health problems of former Israeli Prime Minister Menachem Begin. (The reporting of the Begin case bore a striking resemblance to the reporting of the Sharon case: Halevy’s reliance on unconfirmed and unidentified “sources.”) Some other publications, notably the New York Times, regularly publish a “Corrections” column. CBS News may have similar rules and do equivalent checking for its regular news reports, but it does not seem to do much checking when a “special” such as the Vietnam documentary is produced.
Miss Adler wants the press to do better without the prod of a tougher libel law. “Older than the First Amendment’s safeguards of freedom of speech and of the press,” she writes, “was Western civilization’s interest in the Ninth Commandment.” But she does not offer, save by exhortation, any advice as to where incentives might be found to deter the media from bearing false witness. The present law of libel makes public officials pretty much fair game except where the journalistic misconduct is egregious. Public opinion is not much of a constraint: television news has grown in popularity, especially among younger people. CBS’s 60 Minutes is one of the most popular programs on television. George Crile, producer of the Westmoreland documentary, is now a producer for 60 Minutes. (Nothing succeeds like failure.) In public-opinion polls, Time is rated as more believable than the Associated Press—a popular misperception that would be funny if it were not so tragic. The AP traditionally has not run stories based on unnamed sources—it prints what it can get “on the record.” Time lives and breathes by its ability to get “unnamed sources” to spill whatever they think are the beans.
Journalists are only rarely a visible, public check on other journalists. In a true profession, such as medicine or physics, fellow professionals keep each other reasonably honest by publicly criticizing unsupported theories or bad data. Journalism is not in this sense a profession—its members rarely criticize one another, except when they denounce cautious journalists for not attacking “The Establishment” more vigorously. There was some journalistic criticism of the Westmoreland documentary by Hodding Carter and in a book by Don Kowet, Matter of Honor. The latter was denounced by other writers as some right-wing plot against “investigative reporting.” Otherwise, the journalistic mood was to rally ’round the First Amendment.
It would be a mistake to make too much of the libel problem. The great bulk of the reporting on public officials is well within the bounds of reasonable comment. Without much doubt, the media are far more restrained today, when their immunity from libel suits by public officials is relatively high, than they were fifty years ago when such suits were much easier to sustain. The New York Times rule has not unleashed a torrent of defamation. But at the same time, we expect more of the media today than formerly. Fifty or seventy-five years ago, we expected the Hearst and Pulitzer papers to engage in a lot of mudslinging and partisan advocacy. Television news did not exist.
Today, as revealed by polls, the American people want to believe in the media, especially television. And the media have responded by doing more “investigative reporting.” The press asks tougher questions and defers less to government handouts. But in the search for the “inside story,” many reporters have lost sight of what the public needs—the inside story reported with balance on the basis of dependable sources confirmed by other sources. George Crile and David Halevy did not meet that test, and in their frantic—and often profitable—search for bigger audiences and better scoops, their employers did not seem to care.