In the matter of Gen. William C. Westmoreland versus CBS television, the elders of Washington appear to side firmly with the general. "I've got a lot of sympathy for Westmoreland in this case," one of the Democratic leaders in Congress said the other day -- a characteristic remark. Seen from the beleagured vantage points of our politicos, Westmoreland has a noble cause: He is fighting back against the harassments and intrusions of the enemy -- the news media.
It's no use pretending that the news media enjoy much popularity among high public officials. For many of them, criticism or direct challenge from the media is the only criticism or challenge that ever confronts them. Moreover, the odds are good that any important official has been unfairly maligned at some time by the media. There just isn't any foundation here for a warm relationship.
Let's acknowledge further that a lot of ordinary people are also fed up with the news media, angry at intrusion into private lives or the appearance of harassment of prominent people, or convinced that some unseen hand guides the media to take positions hostile to society's best interests.
"Who's going to police the media?" a neighbor asked the other night over dinner. This is a thoughtful lawyer, a former professor, and his choice of words spoke volumes. No doubt a lot of citizens would nod affirmatively at his question, but in fact it's a scary one. Police the media? How does a free country remain free while policing its newspapers and television networks?
Westmoreland and the Capital Legal Foundation, a conservative "public interest" law firm that represents the general and helps finance his $120 million libel suit against CBS, obviously hope to trade on popular antipathy for the media in room 318 of the Federal courthouse in lower Manhattan, where the case is now in a holiday recess.
Does Westmoreland have reason to be mad at CBS? Sure he does. The documentary which prompted his suit was unrelentingly critical of him. It used some dubious journalistic techniques, all at Westmoreland's expense, including the famous close-up camera that gave viewers an inside look at Westmoreland's skin pores -- and at his anxiety under a withering cross-examination from Mike Wallace.
Moreover, Westmoreland seems firmly to believe that the charges brought against him in the documentary were false. The one event that CBS considers crucial proof of its charge that Westmoreland "conspired" to hide embarrassing new intelligence on the strength of the Vietcong was -- in Westmoreland's view -- an insignificant happening, a nothing.
But if Westmoreland has reason to be mad, does that mean he should be able to collect damages from CBS? No, it does not.
As interpreted by the Supreme Court, our libel law allows a public figure or official like Westmoreland to collect for defamation only when someone has made a false and damaging statement about him knowing it was false, or with "reckless disregard" for its accuracy, a phrase courts have interpreted to mean that the author had serious doubts about the accuracy of what he said or wrote.
This stringent standard is crucial, though juries and citizens are understandably confused by it. Judge Pierre N. Leval, who is presiding over the Westmoreland- CBS trial, explained it lucidly in a ruling this month. The ruling barred Westmoreland's lawyer from introducing an internal report by a senior producer at CBS News that was sharply critical of many aspects of the documentary on Westmoreland, while also supporting its main conclusions. Here is part of what Leval said:
"The fairness of the broadcast is not at issue in the libel suit. Publishers and reporters do not commit a libel in a public- figure case (that is, in a case where the aggrieved party is a prominent public person) by publishing unfair one-sided attacks. The issue in the libel suit is whether the publisher recklessly or knowingly published false material. The fact that a commentary is one-sided and sets forth categorical accusations has no tendency to prove that the publisher believed it to be false. The libel law does not require the publisher to grant his accused equal time or fair reply. It requires only that the publisher not slander by known falsehoods (or reckless ones). A publisher who honestly believes in the truth of his accusations (and can point to a non-reckless basis for his beliefs) is under no obligation under the libel law to treat the subject of his accusations fairly or evenhandedly."
Judge Leval said, in plain English, that news organizations don't have to be fair. That assertion will exasperate lots of people, particularly people who are regularly the object of news media attention. But Leval's sense of the law is surely correct.
And as another judge explained eloquently in a recent opinion, allowing the media to be unfair about public figures actually serves the public interest -- not because unfairness is a good thing, but because freedom is a good thing.
Judge Robert H. Bork of the U.S. Court of Appeals in Washington delivered a lecture on press freedom in a case called Ollman v. Evans and Novak. Bertell Ollman, a Marxist political scientist at the University of Maryland, sued the columnists for libel because they had quoted an anonymous professor of political science as saying that "Ollman has no status within the profession, but is a pure and simple activist." The Court of Appeals here ruled that Ollman could not bring a case of libel on the basis of that statement.
Judge Bork is no liberal. Richard Nixon appointed him solicitor general in the Justice Department, and he is a hero to many conservatives, who mention him as a possible future justice of the Supreme Court. Wrote Bork of the Ollman case:
"It arouses concern that a freshening stream of libel actions, which often seem as much designed to punish writers and publications as to recover damages for real injuries, may threaten the public and constitutional interest in free, and frequently rough, discussion. Those who step into areas of public dispute, who chose the pleasures and distractions of controversy, must be willing to bear criticism, disparagement, and even wounding assessments. Perhaps it would be better if disputation were conducted in measured phrases and calibrated assessments, and with strict avoidence of the ad hominem; better, that is, if the opinion and editorial pages of the public press were modeled on The Federalist Papers. But that is not the world in which we live, ever have lived, or are ever likely to know, and the law of the First Amendment must not try to make public dispute safe and comfortable for all the participants. That would only stifle debate."
Bork made another wise observation: "The American press is extraordinarily free and vigorous, as it should be. It should be, not because it is free of inaccuracy, oversimplification and bias, but because the alternative to that freedom is worse than those failings." The alternative, of course, is some kind of official control -- the one thing the founders ruled out.
Gen. Westmoreland asks the staggering sum of $120 million from CBS for damages he claims were inflicted by "The Uncounted Enemy: A Vietnam Deception," the documentary broadcast in January 1982. He feels CBS besmirched his honor and reputation untruthfully by charging that he was part of a "conspiracy" to mislead the American public, Congress and his superiors by suppressing the findings of his own intelligence officers that the Vietcong enemy included more than 400,000 people, not the 300,000 his command was reporting to Washington.
As Judge Leval has made clear from the beginning, Westmoreland's lawyers face a difficult challenge. They must demonstrate that the documentary was false and that CBS knew it was false when it was broadcast, or that the behavior of CBS personnel demonstrated a reckless disregard for the accuracy of the accusations. (This is the legal standard set in the landmark 1964 libel case, New York Times v. Sullivan.)
After pretrial "discovery" of facts that included thousands of hours of interrogation of witnesses by lawyers for both sides and the accumulation of mountains of documents, CBS asked Judge Leval for a summary dismissal of Westmoreland's suit. Leval refused, ordering the case to trial. But in that order Leval seemed to rule out the possibility that Westmoreland could win by showing that CBS had conducted a biased and inadequate investigation.
Leval ruled that even if the CBS investigation were biased and incomplete, this was "probably insufficient" to prove libel. He noted that CBS had interviewed more than 80 people, "and found a number of seemingly knowledgeable and reliable witnesses who confirmed and supported the broadcast's premise" -- enough, the judge suggested, to show that CBS did not broadcast the documentary knowing its thesis was false.
Leval indicated that he felt Westmoreland had one narrow opening to prove his case. A reporter, he wrote in that original ruling, may "make himself liable (for a libel judgment) if he knowingly or recklessly misstates (his) evidence to make it seem more convincing or condemnatory than it is." Leval cited four examples of CBS' editing of the documentary -- all of them, it should be said, examples of tendentious journalism -- that he thought created factual disputes justifying a full trial.
Even then, Leval suggested, to make a libel case, such examples of questionable editing had to be shown to be intentional, and to have had "significant impact on the substance of the broadcast."
Dan M. Burt, Westmoreland's lead lawyer, who is trying his first case before a jury, has tried to prove that the thesis of the documentary was false, and that CBS knew it was false. He has also tried to argue the case that Judge Leval outlined for him in his pretrial ruling.
However, Burt's presentation in court has often been singularly inept. Even when challenging the producer of the program, George Crile, about his most questionable film cuts, which did indeed seem to exaggerate or misstate the sense of certain interviews, Burt failed to embarrass Crile before the jury, or even -- it seemed in the courtroom -- to demonstrate convincingly that Crile had done anything improper.
In two instances Burt tried to expose misrepresentations of interviewees' statements in edited interviews in the program. But he must have known from pretrial depositions that both men in question were likely to testify later as witnesses for CBS that their views were not misrepresented in the broadcast. If the jury remembers this when those two do testify later, it won't do Burt any good.
Judge Leval has already undermined Burt by criticizing -- in some cases all but mocking -- him in front of the jury. On one occasion during his questioning of Crile, David Boies representing CBS objected repeatedly to Burt's formulation of a question, and Burt had to rephrase it five times before the judge would accept it. By posing questions sloppily, Burt has allowed his examinations of witnesses to go on hours longer than he had planned. Judge Leval has limited each side to 150 hours of courtroom time to present its case, so Burt now must curtail his presentation. He apparently won't be able to put several CBS witnesses on the stand.
For a journalist who writes, this lawsuit is a striking reminder of the differences between print journalism and television. Both fall into the same category before the law, but we are different.
A reporter conducting an investigation like CBS' in this instance would do much the same kind of reporting that a television producer would do, but for television, the reporting is only the beginning. It must be followed by filmed interviews with relevant individuals who -- to make a good television program -- must make the points on camera that the producer wants to make in his broadcast. Not surprisingly, many people who will talk quite freely in private, or on the assurance that they won't be named in a story, react nervously to lights and a camera, and won't repeat what they may have said earlier.
A reporter and a TV producer both make selections from their material when they assemble their final report. But in making his selections the producer is looking not just for bits of information or snippets of quotable observations, but for "good television." He needs dramatic material on film to tell his story and make the impression he wants to convey.
To put his broadcast together, George Crile did things that a careful newspaper reporter or editor would not do (and, because of different technologies, would not be tempted to do either). For example, Crile quoted one participant in the events under investigation as calling a particular statistic "crap," when the participant -- Col. Gaines Hawkins, once an intelligence officer on Westmoreland's staff -- was referring to another statistic.
By his own testimony, Hawkins considered both statistics "crap," and in fact, the two statistics -- calculated at at different times, one by South Vietnamese and one by American officials -- were virtually the same at the bottom line. Crile's shortcut may be defensible, and it may not misrepresent Hawkins' view (Hawkins is expected to testify that it did not). Still, Crile's methodology seems questionable.
(If Crile were a reporter who only kept a notebook, this shortcut might never have become an issue. A reporter, typically, would write something like "says numbers are crap," without specifying which. But in this case Burt had the transcript of a long, filmed interview with Hawkins.)
In the documentary, Crile and CBS seemed to reach for a dramatic conclusion that was overstated. The program said that Westmoreland's failure to report to Washington his intelligence staff's new findings in May 1967 that the Vietcong was much larger than previously reported contributed significantly to the surprise of the Tet offensive the following January. In fact the surprise of Tet was its audacity and scope, neither of which would have been anticipated with a better count of enemy forces. Arguably, miscounting the enemy had no tangible military impact.
But it was an important and revealing error, as George Allen of the CIA said on the CBS broadcast. The basic issue was whether part-time Vietcong fighters -- villagers who might tend rice paddies by day and set boobytraps by night, or political agitators and the like -- were an important part of the enemy force. Westmoreland testified in this trial that he didn't want to count such people, and didn't want to fight them either. He was after the communists' main-force units.
The count of the enemy, Allen said, "was a fundamental question of the soundness of our policy, of our whole approach to the war in Vietnam. It was a question of whether we ultimately, finally, were going to come to grips with the nature of the war and the scale of the enemy forces that we were up against, or whether we were going to continue this process of self-delusion."
Allen was right. And there seems little doubt that our Founding Fathers -- if they could see the modern consequences of their First Amendment -- would approve of CBS television's attempt to raise that question, however imperfectly, in a serious documentary.
The proposition that Westmoreland -- an American military commander who eagerly sought publicity, who voluntarily became a propagandist for the war, who in this lawsuit has dropped the claim that he was libeled by charges that he misled Congress and the public -- should collect $120 million in damages from CBS for this broadcast is a frontal challenge to the freedom of the press.
If Westmoreland ultimately prevails in this suit -- a prospect that now seems unlikely, unless the case reaches the Supreme Court and the justices rewrite existing libel law -- the American news media will have to fundamentally alter its approach to disputes about how important officials perform their jobs. You will learn much less about controversies involving the behavior of high officials. This, one suspects, is just what Westmoreland's lawyers and many of those who encouraged him to sue would like. But the country is best served by the open clash of ideas and opinions -- even unfair opinions -- that the First Amendment was intended to protect, even when that clash becomes "rough and personal" -- in Judge Bork's words -- for those who voluntarily take part in it.