Wrestling with Defamation and Truth

By James Kelly

In a 64-page charge that took two hours to read, Federal Judge Abraham Sofaer outlined the complex issues that the four women and two men on the jury had to evaluate. In reaching a verdict on former Israeli Defense Minister Ariel Sharon's $50 million libel suit against Time Inc., he explained, they faced three sets of questions about a single paragraph in TIME's Feb. 21, 1983, cover story about an official Israeli report on the 1982 massacre of hundreds of Palestinians in the Sabra and Shatila refugee camps in West Beirut. First, could the disputed passage, which reported on discussions Sharon had with Lebanese Christian Phalangist leaders prior to the massacre, be interpreted as having a meaning that defamed Sharon? If so, was the substance of the paragraph false? And if the answers to both these questions were yes, did TIME publish the paragraph "with a high degree of awareness" of its probable falsity? For Sharon to win his suit, the jury would have to answer yes to all three questions and then, after an additional round of testimony, find that his reputation had been damaged by the story.

In an unusual move, Sofaer asked the jury to report publicly their answers at each stage. After 14 hours of deliberations, the jury announced on Wednesday that it had found for Sharon on the first question. The paragraph, said the jury, implied that Sharon "consciously intended" to permit the Phalangists to take revenge by deliberately killing noncombatants in the camps. It took the jury an additional 20 hours of deliberation, which continued through Friday afternoon, to find that the disputed paragraph was in fact false. At week's end the jurors were still debating the question of malice.

$ TIME's cover story dealt with the report of a commission headed by Israel's Supreme Court President Yitzhak Kahan. The killings, which began two days after the assassination of Lebanese President-elect Bashir Gemayel, were carried out by Phalangist militiamen. The Kahan commission concluded that Sharon had ordered the militiamen into the camps and thus bore "indirect responsibility" for what happened; Sharon resigned his Defense post two days after the findings were released.

The paragraph at issue in Sharon's lawsuit comes halfway through the eight- page story; it described a condolence call Sharon paid to the Gemayel family the day after Bashir's death and said that information about the visit was contained in a classified Appendix B to the report. The passage went on to say: "Sharon reportedly told the Gemayels that the Israeli army would be moving into West Beirut and that he expected the Christian forces to go into the Palestinian refugee camps. Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir, but the details of the conversation are not known."

After months of negotiations by Judge Sofaer, the Israeli government finally allowed an attorney representing TIME to examine the secret appendix and other selected documents two weeks ago. After its representative examined some, but not all, of the relevant documents, TIME acknowledged in last week's issue that Appendix B did not contain further details about Sharon's visit to the Gemayel family. But the magazine continued to defend its report about the meeting as true and argued that it has been forbidden to see testimony made to Israeli investigators that could corroborate the account.

Thomas Barr, Time Inc.'s chief defense attorney, insisted last week that the magazine had been denied due process of law. It had been hampered in defending its story by the refusal of the Israeli government, in which Sharon currently serves as Minister of Industry and Trade, to allow several top-ranking army and intelligence officers to testify. "The important guys, the guys at the guts of what happened, we did not get," Barr told reporters. "Sharon came here knowing we could not discover the substance in this case." Allowing a foreign public figure to sue for libel in a U.S. court over reporting about his official actions, Barr added, sets a dangerous precedent. "I don't see why (Libyan Leader Muammar) Gaddafi can't sue here too, and then say every piece of evidence is a state secret." Throughout the trial, Sofaer has "reserved judgment" on TIME's motions to dismiss the case on due process grounds; he may rule on that question this week.

In reaching a decision on whether the disputed paragraph was defamatory, Judge Sofaer instructed the jurors to look not only at what the words literally meant, but also at what they implied to "the average reader" in the context of the entire story. He identified for the jurors five possible readings of what the paragraph could mean. He noted that the first three of these--that Sharon was "negligent" or "reckless" or was aware in advance that a massacre would occur--would not constitute defamation in the context of this case. Only at issue, he said, were two more extreme interpretations: that Sharon "consciously intended" a massacre or "actively encouraged" it.

As deliberations about the paragraph's meaning wore on, the jury requested a dictionary, a blackboard and file folders. Then, shortly before 11 a.m. on Wednesday, Jury Foreman Richard Zug informed Sofaer that the panel had reached a decision on that first issue. On the six-page checklist that the judge had given, which spelled out the various answers they could give on the three sets of questions, the jurors had marked "yes" under the statement that the paragraph implied that Sharon had "consciously intended" the Phalangists to kill noncombatants in the camps. They also found that the defamation was "aggravated" by TIME's statement that Appendix B contained details of Sharon's discussion with the Gemayels.

Outside the courtroom in lower Manhattan, a smiling Sharon told reporters, "I am pleased that we won on this point." His attorney, Milton Gould, added, "I'm glad we're not going to get beaten on etymology." Moments later TIME Managing Editor Ray Cave said he felt that the jurors had "misread" the disputed paragraph and insisted once again that the passage in no way accused Sharon of responsibility for the massacre. The passage simply echoed the findings of the Kahan report, Cave said. He defended the magazine's use of confidential sources in seeking information about the events leading to the massacre. "Most magazines and most newspapers constantly rely on confidential sources," he noted.

Since TIME had already conceded that Appendix B did not state that Sharon discussed revenge with the Gemayels, the issue of truth for the jury focused on a single question: Had Sharon proved that "he did not engage in any discussion with the Phalangists, prior to the massacre, of the need to take revenge"? During the trial, Sharon relied principally on his own testimony to prove this point. He denied that he had ever discussed revenge--not just with the Lebanese, but with "anybody."

TIME's account was based largely on the reporting of David Halevy, one of its correspondents in Jerusalem. During the trial, Halevy testified that he relied on four sources for his report that Sharon conveyed his understanding of the Gemayels' need for revenge at his meeting with them in the Lebanese town of Bikfaya. Halevy said these included an Israeli intelligence officer with access to notes taken at the meeting. He told Halevy that Bashir's father had declared to Sharon that his son's death should be avenged.

Under Sofaer's agreement with Israel allowing lawyers for both sides to examine secret information gathered by the Kahan commission, TIME had sought access to testimony collected by the commission's investigators that, it contended, could support its case. Sofaer last week received permission from the Israeli government to release a letter to the court from Haim Zadok, the attorney who acted on TIME's behalf. According to Zadok, a former Israeli Minister of Justice, he was not allowed to see information gathered by the investigators, who had the power to summon witnesses and require them to testify. Zadok also said that after inspecting those documents he was permitted to see and the testimony he was allowed to review, he felt that there "is at least a suggestion that Minister Sharon knew, or at least was likely to know, in advance, that Phalangists would massacre civilians if they went into the camps unaccompanied by I.D.F. (Israeli Defense Forces) troops."

In a closed session of court last Monday (the transcript was released on Tuesday when Zadok's letter was made public), Barr underscored the significance of Zadok's reservations. He asked the jury to heed the wording in Zadok's letter, and in letters from Kahan and the Israeli Attorney General's office, which suggested that other important documents and information may well exist that TIME was not allowed to see. That material, said Barr, could include minutes of a meeting that Sharon held with Bashir two days before the assassination; the Defense Minister might have learned there of the Phalangists' intentions if they ever entered the Palestinian refugee camps. In response, Gould dismissed Zadok's reservations as a "red herring."

"What has been proved by now is that TIME magazine lied," said Sharon after the jury announced on Friday that it found the disputed paragraph false. He called the decision "a clear moral victory." But Cave told reporters that TIME still believed its story to be substantially true. "No one has come forward and said that story was false, but one," he said. "We were forbidden to bring in our own witnesses in this case. We were forbidden access to the testimony that we were confident, confident, would prove that what that paragraph said was correct." After deciding the falsity issue, the jurors closeted themselves on Friday afternoon to discuss the matter of "actual malice": Had TIME published the paragraph knowing it was false or with reckless disregard--or entertaining serious doubts--about whether or not it was? Over the weekend they asked for 90 exhibits totaling more than 400 pages and loose-leaf binders to help them organize their thoughts.

Devoting 20 of his charge's 64 pages to a definition of "actual malice," Sofaer offered three separate ways in which the jurors could find against TIME. If they believed Halevy or another TIME employee had "fabricated" the story, including the claim of what was in Appendix B, then that would constitute actual malice. The jurors also could decide against TIME if they believed Sharon's charge that journalists in New York had "exaggerated or distorted" the information Halevy received to the point that they were aware that it was "probably untrue." Finally, the jurors could find actual malice if they believed that TIME's journalists had "systematically disregarded" substantial evidence that caused them to be aware that the paragraph was probably untrue. Sofaer reminded the jury to consider TIME's claim that its employees had checked the passage carefully and found no contradiction between its conclusion and the Kahan commission report. The jurors were also to take into account testimony by Halevy's TIME colleagues that they regarded him as a reliable reporter.

Some legal experts not connected with the case thought that Judge Sofaer's complex definition of malice represented a departure from precedent. "It is contrary to established law to equate exaggeration with substantial factual falsity," observed Richard Winfield, a publishing specialist in the Manhattan firm of Rogers & Wells. Said Henry Kaufman, general counsel for the Libel Defense Resource Center, a New York-based media group: "It's a Rube Goldberg kind of charge. I'm concerned, in the context of this case, that jurors will turn the concept of material exaggeration or distortion around to secondguess editorial judgment."

If the jury decided against TIME on "actual malice," it would then hear testimony on Sharon's reputation to determine any assessment of damages. In most libel cases, the lawyers for both sides present evidence on the plaintiff's reputation before the jury begins its overall deliberations. But after Sharon had already presented character witnesses on his own behalf, Judge Sofaer decided to split the trial; he ruled that introduction of evidence detrimental to Sharon's reputation could unfairly influence the jury on the first three issues. For Sharon to win the case, he will have to show that his reputation was in fact damaged.

With reporting by Kenneth W. Banta/New York