Herbert's War

An interim victory for CBS

When CBS News Producer Barry Lando interviewed Lieut. Colonel Anthony Herbert for a 1971 report on prisoners of war in South Viet Nam, he found the soldier too good to be true: a gung-ho, ribbon-covered lifer who was being quietly drummed out of the Army for uncovering U.S. war crimes. CBS broadcast Lando's report of Herbert's plight, and Herbert later became a talk-show hero among foes of the war; his 1973 autobiography, Soldier, hit the bestseller lists.

For a follow-up story, Lando began checking into Herbert's career and his charges against the Army, and concluded that the colonel was indeed too good to be true. In a half-hour 60 Minutes segment in 1973, Lando and Correspondent Mike Wallace challenged a number of Herbert's allegations, and interviewed fellow officers unable to substantiate them Herbert sued Lando, Wallace and CBS for libel, demanding that Lando answer questions about his state of mind when he prepared the program. Lando balked, and in January a judge ordered him to comply.

Last week, in a potentially significant victory for all journalists, a federal appeals court in Manhattan declared that kind of judicial delving into editorial thought processes unconstitutional. "Such an inquiry," wrote Chief Judge Irving R. Kaufman, "unquestionably puts a freeze on the free interchange of ideas within the newsroom."

Herbert's lawyers say they will appeal to the Supreme Court. Unless the ruling is reversed, it could be used by journalists in their attempts to keep a plaintiff from prying into their thoughts during the preparation of a disputed article or broadcast. In a dissent, Judge Thomas Meskill called Herbert's questions legitimate because in order to win a libel case, a public figure like Herbert must prove that a journalist had serious doubts about the accuracy of his report, but published it anyway.

Now 47 and working as a hospital psychologist in an undisclosed Western city, Herbert may still win his four-year-old libel suit if he can prove in some other way that CBS's allegations against him were false, damaging and recklessly made. Whatever the outcome, both sides would feel better if the Supreme Court some day settled the question of whether a journalist can be forced to divulge his thoughts and opinions. "As long as the question is open," says Lando, "any time a reporter sits down to discuss something with his editor, he'll keep in the back of his mind the thought that in a year or so he may have to repeat the conversation in court."

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