State of Mind

A libel case is scaled back

When Dan Burt, the attorney for retired General William Westmoreland in his $120 million libel suit against CBS News, made his opening statement to the jury last week, he relied heavily on assertions about the intentions of the producers of the documentary in question, The Uncounted Enemy. Among the most compelling evidence that CBS must face is its own in-house investigation, which Burt forced it to make public. Ironically, just as the case came to trial, a federal judge threw out most of a precedent-setting earlier case-also involving CBS News Correspondent Mike Wallace and a Viet Nam military figure, Lieut. Colonel Anthony Herbert-that had provided the legal basis for opening CBS's private files.

Herbert sued in 1971, declaring he had been libeled by a story on 60 Minutes that questioned his claims to have reported war crimes to his superiors. (The broadcast involved in Westmoreland's suit was produced by CBS Reports, not 60 Minutes.) Herbert's case went to the U.S. Supreme Court in 1979 on a procedural question. Under existing law, a public official had to prove not only that the assertions were false, but that the journalist either knew they were false or acted in reckless disregard of whether they were true. Herbert contended that if he had to prove the state of mind of his accusers, then he was entitled to question them about their notes, conversations and even thoughts. By a 6-to-3 vote, the Supreme Court agreed. The decision has allowed plaintiffs to show juries the filmed outtakes from a broadcast.

Federal District Judge Charles Haight's action last week did not affect that principle. But he ruled that nine of Herbert's eleven assertions of libel lacked factual basis. According to CBS, the remaining issues are minor. Said Herbert's attorney, Jonathan Lubell: "We thought many more issues should have gone to the jury. But given the state of libel law, whenever a public figure gets to face a jury, it is a victory."