TIME: Almanac 1993/TIME Almanac 1993.iso/time/caps/85/85capprs.1

Text File | 1992-09-25 | 11.3 KB | 211 lines

                                                                                March 4, 1985

PRESS

"It Was the Best I Could Get"


After a five-month libel trial, Westmoreland settles with CBS


The retired general held his head high for the 200 reporters
and photographers at his press conference at Manhattan's Harley
Hotel last week. Pale and tired-looking but firm of voice, he
claimed victory in his $120 million libel suit against CBS.
Although William Westmoreland had withdrawn his case and had won
no money, no vindication by a jury and no retraction, he said
that a joint statement issued by him and the network had
provided the affirmation of his honor that he had sought. The
statement said, in part, "CBS respects General Westmoreland's
long and faithful service to his country and never intended to
assert, and does not believe, that General Westmoreland was
unpatriotic or disloyal in performing his duties as he saw fit."
Said Westmoreland:  "It was in essence an apology. I'm going
to try to fade away."

Minutes later at the Dorset Hotel, several blocks northwest,
CBS Executive Vice President Van Gordon Sauter arrived for his
own press conference, pipe in mouth and bow tie flopping, to
tell a similar number of reporters and photographers that the
network also claimed victory. CBS had spend several million
dollars defending itself, conducted an internal investigation
that uncovered substantial violations of its own procedures, and
endured widespread critical judgment that its treatment of
Westmoreland had been one-sided. But Sauter asserted that the
Jan. 23, 1982, documentary, The Uncounted Enemy:  A Vietnam
Deception, had been vindicated. Said he:  "Nothing has surfaced
in the discovery and trial process now concluded that in any way
diminishes our conviction that the program was fair and
accurate."  As if to underscore that feeling of triumph, CBS
staffers had held a party in a hotel room the night before, and
gathered again two nights later at the flashy disco-restaurant
Regine's.

With those contrasting statements, which came after 18 weeks of
testimony and just a few days before the scheduled end of the
trial, one of the most celebrated libel cases in American
history was removed from a court of law and placed where legal
scholars believed it belonged from the outset, in the court of
public opinion. The result seemed to validate the conventional
legal wisdom that public figures have little change of
sustaining libel victories against the press, but to prove as
well that their suits can cause significant concern and expense.

The jurors expressed disappointment at not being called upon to
render a verdict. A majority said they had been leaning toward
CBS, but some thought each side had presented a substantial
case. Said Judge Pierre Leval, who had warned at the outset
that the suit could easily turn into a futile effort to
re-evaluate the war in Viet Nam: "Judgments of history are too
subtle and too complex to be satisfied with a verdict. It may
be for the best that the verdict will be left to history."

The abrupt resolution of the case came as a shock to nearly
everyone who had been following it, even to Attorney George
Leisure of the firm Donovan, Leisure Newton & Irvine. He had
been advising Westmoreland and thought the general had a good
chance of winning. Said Leisure:  "I was stunned. I was unaware
that negotiations were going on."  But in fact, repeated
attempts had been made to reach a settlement. Before the trial
started, according to sources involved in the out-of-court
talks, CBS offered Westmoreland the same sort of statement he
eventually accepted, along with 15 minutes of free TV airtime
to reply in any fashion he chose and a contribution toward his
legal fees. The general reportedly refused, insisting that he
wanted a statement containing the words apology and regret and
explicitly disavowing the 90-minute documentary. During the
course of the trial, both sides exchanged further offers, but
those of CBS steadily narrowed. In the end, as CBS piled up
evidence, and as Capital Legal Foundation, a Washington-based
nonprofit corporation that was providing Westmoreland's defense,
ran short of money, the general agreed to settle for less than
he had apparently been offered originally. Of his final
acquiescence, Westmoreland told the New York Times:  "I figured
it was the best I could get."

What Westmoreland could not get, despite repeated insistence,
was any statement by CBS that the program was wrong or even the
slightest admission that the information it was based on had
been incomplete. The general fought for that concession up until
minutes before he signed the agreement late in the afternoon of
the day before it was announced. According to sources close to
the negotiations, Capital Legal Foundation President Dan Burt
pressured the general to concede and wore him down. Although
the decision disappointed Westmoreland's conservative backers,
settlement appealed to both sides because it allowed each to
come away with something, rather than risk outright defeat by
a verdict of the jury.

The controversy about The Uncounted Enemy began even before it
aired, when the network ran print ads that featured the word
conspiracy. During the show, Westmoreland was depicted as having
been at the center of a "conspiracy at the highest levels of
military intelligence" to mislead the President and the public
about the success of a war of attrition against Vietnamese
insurgents. Westmoreland did this, the program said, by
systematically understating the levels of enemy troop strength.
He held a press conference a few days later to denounce those
assertions.

Four months later, TV Guide heightened the controversy with a
cover story, "Anatomy of a Smear," that detailed the unorthodox
procedures used in making the program:  reinterviewing someone
to get him to be more forceful on camera, showing an interview
subject the raw footage of other interviews to get him to
concur, allegedly coaching an interviewee and, as Westmoreland
described it, "rattlesnaking" him by misrepresenting the nature
of his on-camera interview so he would arrive inadequately
prepared.

The TV Guide article prompted Sauter, then president of CBS News
and now its corporate overseer, to order an investigation by
Senior Producer Burton Benjamin. Benjamin sternly criticized
the methods of the show's producer, George Crile, but did not
address most questions about substance. CBS announced that it
"stood by the broadcast," and Westmoreland condemned that stance
as a "whitewash."  Although he had been counseled by former
colleagues not to sue because a public figure was unlikely to
win a libel trial, Westmoreland accepted the offer of Capital
Legal Foundation to represent him; much of the $2 million cost
of his case was provided to Capital by conservative foundations
and individuals.

Prior to the trial, the case was kept in the headlines by both
sides' aggressive efforts at public relations. Much of the
publicity favored Westmoreland. Once the suit reached court,
Attorney Burt demonstrated that several key former officials who
took Westmoreland's side either were not interviewed for the
broadcast or, like President Johnson's National Security Adviser
Walt Rostow, were left on the cutting-room floor. But Judge
Leval counseled the jury that "fairness" was not an issue;
Westmoreland hod to prove both that the documentary was false
and that CBS had good reason to know so.

When CBS Attorney David Boies presented the network's case, the
initiative shifted dramatically. A succession of current and
former Central Intelligence Agency officers stated that
estimates of enemy troops had been tainted by politics.
Producer Crile offered an impressive point-by-point explication
of the evidence for each assertion in the program. In the most
dramatic moment, Westmoreland's former intelligence chief and
close friend, retired major General Joseph McChristian,
testified that his boss had "improperly" held back a cable about
high troop estimates because it would cause a "political
bombshell" in Washington.

Opinion was dived on whether the outcome in Westmoreland's case,
and in the libel case that former Israeli Defense Minister Ariel
Sharon lost against TIME, would encourage or discourage libel
suits. Said Executive Editor Heath Meriwether of the Miami
Herald:  "The ability of CBS to put on a rousing defense was
well noted, and I would hope that this has raised red flags
among potential plaintiffs. Libel litigation has not proved to
be either effective or efficient as the forum in which to seek
redress for alleged wrongs."  First Amendment Attorney Floyd
Abrams, whose clients have included the New York Times, agreed:
"General Westmoreland is clearly the loser...The immense risk
in seeking vindication is that you will actually worsen your own
reputation."  But Editor Gene Roberts of the Philadelphia
Inquirer contended, "Westmoreland proved that you can cost a
major TV network millions of dollars and tie up its management
and journalists for months in litigation. The settlement won't
diminish these cases, it will increase them."

Libel suits have been increasing rapidly over the past few
years, according to the Libel Defense Resource Center, and
recent outcomes have ranged from multimillion-dollar verdicts
now on appeal to a $10,000 judgment won last week by a former
Oriskany Falls, N.Y. high school cafeteria cook whose output was
described by the school paper as "not fit for dogs to eat."  One
result is that news organizations have been spending more money
on legal advice. Ed Turner, vice president of Cable News
Network, maintains that "if you are going to be in the
investigative business, you have to budget for legal reviews the
same way that you do for reporters."  Says Frank McCulloch,
until recently the executive editor of the California- based
McClatchy newspaper chain:  "People sue us today for things they
scolded us for on the phone a few years ago. Our legal fees
have been $1 million a year. Some smaller papers are saying
they cannot afford the costs."  In suburban Philadelphia,
Publisher Irvin Lieberman eliminated investigative reporting
from his chain of six weeklies after being sued twelve times for
libel by public officials since 1973. Says he:  "I found myself
vigorously defending the First Amendment and watching my
business go to hell. Now the communities our papers serve no
longer learn about the misconduct of their officials."

Large news organizations, including CBS, insist that
Westmoreland's and other suits will not deter them from
undertaking touchy stories. They have resources to weather a
court case, they say, and their bread and butter is public
policy. Says NBC News President Lawrence Grossman:  "I do not
want to sound arrogant, but those suits have had no impact."

Still, most journalists admit they are taking greater
precautions to avoid libel suits, at the simultaneous cost of
a bit of venturesomeness and enterprise. Even though the news
media generally win in the law courts, reporters and editors
fear the legal expenses and the damage to their credibility.
They are worried that everyone involved in a libel suit is
likely to be a loser in the eyes of the public.

--By William A. Henry III.  Reported by Kenneth W. Banta and
Marcia Gauger/New York, with other   bureaus