Plaintiff
General William C. Westmoreland
Defendant
CBS, Inc., Mike Wallace, George Crile, Sam Adams, Van Gordon Sauter
Plaintiff's Claim
That a television documentary broadcast by CBS concerning the conduct of theVietnam War libeled Westmoreland.
Chief Lawyers for Plaintiff
Dan M. Burt, David M. Dorsen
Chief Defense Lawyers
David Boies, Stuart W. Gold
Judge
Pierre N. Leval
Place
New York, New York
Date of Decision
18 February 1985
Decision
The case was settled out of court before going to the jury.
Significance
The case affirmed stringent standards set for public figures to successfullyseek libel damages through litigation. Public figures must prove actual malice. Despite evidence of press misconduct in this and a similar contemporaneouscase involving Israeli leader Ariel Sharon, both plaintiffs lost. This casereceived significant national publicity and underscored the many problems with libel law in the United States. A number of national reforms were proposedfollowing the case through the nineties.
The Vietnam War obscurely began in 1957 with limited U.S. military support provided to South Vietnam. U.S. involvement escalated dramatically following the 1964 Gulf of Tonkin naval incident. The war effort steadily grew through the next several years as public and Congressional support began to gradually diminish. Finally, a turning point in the war occurred in January of 1968 whenNorth Vietnamese forces invaded the city of Hue and other South Vietnam cities including Saigon. Known as the Tet Offensive, the North Vietnamese were atfirst successful in capturing Hue but U.S. forces counterattacked repellingthe North Vietnamese forces. The U.S. victory was costly as fighting had beenintense throughout the region. The battles dramatized to the American peoplethe likely futility in winning the war on the battlefield without at least incurring a great deal of human loss on both sides, and a great deal of expense. The Tet Offensive consequently forced major changes in U.S. policy in Vietnam leading to the initiation of peace talks with North Vietnam. President Lyndon Johnson refused to send additional troops to the 500,000 already there,and announced he would not seek reelection for president. Controversy concerning the U.S. preparedness for the battle and estimation of enemy troop strength erupted publicly. The war still raged on until 1975 making it the longestand most costly war in U.S. history.
General William C. Westmoreland was U.S. commander in Vietnam from 1964 to 1968 during the Tet Offensive. Born in South Carolina in 1914, Westmoreland graduated from the U.S. Military Academy in 1936 and commanded artillery forcesin North Africa, Sicily, and northern Europe during World War II and led a paratroop regiment during the Korean War. He became a lieutenant general in 1963. During the Vietnam War Westmoreland instituted a policy of "search and destroy" which placed priority over the number of enemy killed over amount of territory gained. Later in 1968 following the Tet Offensive Westmoreland was transferred back to the United States serving as Army chief of staff before retiring in 1972.
On 23 January 1982 CBS Television aired a documentary entitled "The UncountedEnemy: A Vietnam Deception." The narrator, Mike Wallace, took an aggressiveinvestigative approach in preparing the documentary. The theme of the programwas that the effects of infamous Tet Offensive, which took American forces by surprise and caused much loss of life, could have been avoided if the actual size of North Vietnam's troop strength had been more accurately estimated.The documentary placed much of the blame on General Westmoreland for the TetOffensive successes by the North Vietnamese. Wallace accused Westmoreland ofjuggling enemy troop figures to produce an artificially low count in order toplease then-President Lyndon Johnson. During the course of the interview Wallace made Westmoreland appear uncertain and less than truthful about enemy troop estimates.
Incensed after the program was televised, Westmoreland strenuously denied theallegations raised about his conduct. The Capitol Legal Foundation, offeringto represent Westmoreland for free, filed a $120 million libel suit on 13 September 1982. The suit, originally filed in South Carolina, was transferred to the Federal Court of the Southern District of New York.
CBS immediately moved for a summary judgement claiming immunity from libel under the precedent established in New York Times v. Sullivan (1964) since they were the press making commentary on a public figure. CBS claimed theybelieved all of their statements on the program to be true. CBS asserted Westmoreland, being a high-ranking public figure, had sufficient opportunities through the media to respond to allegations concerning performance of his dutyin Vietnam. CBS further claimed the libel lawsuit essentially constituted "unconstitutional prosecution for seditious libel of the government" by forcingCBS to sustain legal expenses to defend the program. CBS also claimed to have been voicing an opinion on the program, but Judge Leval considered accusations of governmental conspiracy in misrepresenting facts too serious of an allegation to constitute merely an opinion. CBS further noted that it would be difficult to prove malice. Sam Adams, a consultant for CBS and former CIA intelligence analyst in 1967-68, had initially presented his allegations in 1967,and another CBS associate, George Crile, joined the debate in 1975 eventually leading CBS to initiate further research leading to the broadcast program.CBS claimed its investigation lasted a year and interviewed over 80 individuals many of whom participated in the events.
Westmoreland, however, charged the investigation was biased based on the wayquestions were framed and interviewees chosen. Most seriously, Westmoreland charged CBS dishonestly edited interview tapes, taking statements out of context to support their opinions, thus constituting reckless misstatements of evidence. Westmoreland contended these distortions indicated malice.
In September of 1984 Judge Pierre N. Leval ruled Westmoreland had raised sufficient questions of "reckless falsity" to make inappropriate a summary judgement on CBS' behalf. Leval wrote the case should proceed to trial.
Testimony was presented through the ensuing months, in some instances by someformer high-ranking military officials supporting CBS allegations. Westmoreland and CBS ultimately settled their case out of court on 18 February 1985 with both sides agreeing to pay their own legal fees. Westmoreland received none of the $120 million claim but instead issued a joint public statement withCBS claiming that CBS "never intended to assert . . . General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them." In essence, CBS stood by its program in the end.
Impact
At the same time the Westmoreland case was pending, another prominent military figure was also pursuing a libel lawsuit. Israeli general Ariel Sharon suedTime, Inc., which published Time magazine, for having printed an article on 14 February 1983 that accused Sharon of encouraging certain Lebanese militia forces to massacre some Palestinians in 1982. This case was the firstoccasion a major foreign official had attempted to use the U.S. court systemto sue for libel for statements concerning their official actions. The case was tried from November of 1984 to January of 1985 in New York, City before Judge Abraham D. Sofaer. A jury found Time not guilty due to lack of actual malice, and Sharon dropped his case. However, jury members made a special pointof stating that they thought Time had acted "negligently and carelessly" in preparing the article.
Generals Westmoreland and Sharon faced similar obstacles in their cases. Despite strong evidence of press misconduct, under the standard set by New York Times v. Sullivan they could not meet the difficult showing of proof required of public figures to win libel suits. Many in foreign countries were astounded by the stiff standards in U.S. courts. Even though statements were found to be defamatory and false in the Sharon case, they still were not considered libelous under the Sullivan standard. In the Sharon case, and other cases involving foreign officials, the press may not be able to successfully gain access to documents and witnesses because the lack ofcooperation of that government. In the Sharon case, Time came away victorious but embarrassed and poorer.
Immediate fears from the Westmoreland and Sharon cases was thatmore foreign and U.S. officials would begin using the court system for political vindication. Regardless of whether the official won their libel case, trial publicity could well serve the political purpose and at the same time ledto considerable legal expenses by the press in defending their publication.
During the late 1970s and early 1980s libel litigation exploded with damage awards and legal expenses reaching into the millions of dollars with the Westmoreland case being a key example. However, the record showed few individuals pursuing libel claims against the press actually received awards or any vindication of their reputation. Success in winning a libel suit was slim,and even if damages were awarded, the monies often went toward high legal fees.
The landmark case of New York Times v. Sullivan compelled public figures to prove a reporter wrote defamatory statements either in the belief thatit was false or with reckless disregard whether it was true or not. Such a standard is tough to achieve. Many considered libel law as it had evolved intothe 1990s, a legal disaster, though still the most common legal problem facing journalists. The law rarely satisfactorily protects either the First Amendment rights of the journalists or to vindicate the subject of the statements.In addition, court decisions since the 1960s have been viewed as inconsistentand increasing the complexity of demonstrating proof of harm and malice. TheWestmoreland case highlighted instances where millions of dollars were spent in attorney's fees by both sides, and yet never went to jury for a decision.
Proposals to reform libel law included the 1993 proposed Uniform Correction or Clarification of Defamation Act by the National Conference of Commissionerson Uniform State Laws. Intent of the proposed law was to provide a speedierand less costly remedy for defamatory disputes. However, by 1998 only one state had adopted the law. Critics of the law claimed it could well be unconstitutional on freedom of the press grounds. A publication may be forced to publish a correction or clarification of the original statement and reporters maybe forced to reveal confidential sources of information. By the end of the nineties no national standard for libel had been adopted and the advent of Internet libel cases introduced even more chaos into the realm of libel law. As the century closed, expensive libel suits and ineffective means of protectingreputations persisted.
Regarding the Westmoreland and Sharon cases, many believed public figures should not be able to sue for libel in instances involving eventsin which they were involved. These issues constitute political debates and are not the kind issues to be decided by juries. In Westmoreland's case, he wasa high-ranking policy-making official who should be openly subject to publicscrutiny.
Related Cases
Out of Court Settlements
In general, an out of court settlement may be reached in many types of civilcases, including but not limited to libel suits. The terms of agreement may be private or public, depending upon the parties involved. In some cases, money may be accepted in return for not going forward with a pending law suit, orone already in process. An out of court settlement also ends any potential future litigation, meaning an appeal cannot later be filed. This sort of settlement is made without input or agreement by the courts. The terms of the agreement are determined by the parties involved, and may be reached at various points in court proceedings.
Sources
West's Encyclopedia of American Law. Volume two. New York: West Publishing, 1998.
General William C. Westmoreland
Defendant
CBS, Inc., Mike Wallace, George Crile, Sam Adams, Van Gordon Sauter
Plaintiff's Claim
That a television documentary broadcast by CBS concerning the conduct of theVietnam War libeled Westmoreland.
Chief Lawyers for Plaintiff
Dan M. Burt, David M. Dorsen
Chief Defense Lawyers
David Boies, Stuart W. Gold
Judge
Pierre N. Leval
Place
New York, New York
Date of Decision
18 February 1985
Decision
The case was settled out of court before going to the jury.
Significance
The case affirmed stringent standards set for public figures to successfullyseek libel damages through litigation. Public figures must prove actual malice. Despite evidence of press misconduct in this and a similar contemporaneouscase involving Israeli leader Ariel Sharon, both plaintiffs lost. This casereceived significant national publicity and underscored the many problems with libel law in the United States. A number of national reforms were proposedfollowing the case through the nineties.
The Vietnam War obscurely began in 1957 with limited U.S. military support provided to South Vietnam. U.S. involvement escalated dramatically following the 1964 Gulf of Tonkin naval incident. The war effort steadily grew through the next several years as public and Congressional support began to gradually diminish. Finally, a turning point in the war occurred in January of 1968 whenNorth Vietnamese forces invaded the city of Hue and other South Vietnam cities including Saigon. Known as the Tet Offensive, the North Vietnamese were atfirst successful in capturing Hue but U.S. forces counterattacked repellingthe North Vietnamese forces. The U.S. victory was costly as fighting had beenintense throughout the region. The battles dramatized to the American peoplethe likely futility in winning the war on the battlefield without at least incurring a great deal of human loss on both sides, and a great deal of expense. The Tet Offensive consequently forced major changes in U.S. policy in Vietnam leading to the initiation of peace talks with North Vietnam. President Lyndon Johnson refused to send additional troops to the 500,000 already there,and announced he would not seek reelection for president. Controversy concerning the U.S. preparedness for the battle and estimation of enemy troop strength erupted publicly. The war still raged on until 1975 making it the longestand most costly war in U.S. history.
General William C. Westmoreland was U.S. commander in Vietnam from 1964 to 1968 during the Tet Offensive. Born in South Carolina in 1914, Westmoreland graduated from the U.S. Military Academy in 1936 and commanded artillery forcesin North Africa, Sicily, and northern Europe during World War II and led a paratroop regiment during the Korean War. He became a lieutenant general in 1963. During the Vietnam War Westmoreland instituted a policy of "search and destroy" which placed priority over the number of enemy killed over amount of territory gained. Later in 1968 following the Tet Offensive Westmoreland was transferred back to the United States serving as Army chief of staff before retiring in 1972.
On 23 January 1982 CBS Television aired a documentary entitled "The UncountedEnemy: A Vietnam Deception." The narrator, Mike Wallace, took an aggressiveinvestigative approach in preparing the documentary. The theme of the programwas that the effects of infamous Tet Offensive, which took American forces by surprise and caused much loss of life, could have been avoided if the actual size of North Vietnam's troop strength had been more accurately estimated.The documentary placed much of the blame on General Westmoreland for the TetOffensive successes by the North Vietnamese. Wallace accused Westmoreland ofjuggling enemy troop figures to produce an artificially low count in order toplease then-President Lyndon Johnson. During the course of the interview Wallace made Westmoreland appear uncertain and less than truthful about enemy troop estimates.
Incensed after the program was televised, Westmoreland strenuously denied theallegations raised about his conduct. The Capitol Legal Foundation, offeringto represent Westmoreland for free, filed a $120 million libel suit on 13 September 1982. The suit, originally filed in South Carolina, was transferred to the Federal Court of the Southern District of New York.
CBS immediately moved for a summary judgement claiming immunity from libel under the precedent established in New York Times v. Sullivan (1964) since they were the press making commentary on a public figure. CBS claimed theybelieved all of their statements on the program to be true. CBS asserted Westmoreland, being a high-ranking public figure, had sufficient opportunities through the media to respond to allegations concerning performance of his dutyin Vietnam. CBS further claimed the libel lawsuit essentially constituted "unconstitutional prosecution for seditious libel of the government" by forcingCBS to sustain legal expenses to defend the program. CBS also claimed to have been voicing an opinion on the program, but Judge Leval considered accusations of governmental conspiracy in misrepresenting facts too serious of an allegation to constitute merely an opinion. CBS further noted that it would be difficult to prove malice. Sam Adams, a consultant for CBS and former CIA intelligence analyst in 1967-68, had initially presented his allegations in 1967,and another CBS associate, George Crile, joined the debate in 1975 eventually leading CBS to initiate further research leading to the broadcast program.CBS claimed its investigation lasted a year and interviewed over 80 individuals many of whom participated in the events.
Westmoreland, however, charged the investigation was biased based on the wayquestions were framed and interviewees chosen. Most seriously, Westmoreland charged CBS dishonestly edited interview tapes, taking statements out of context to support their opinions, thus constituting reckless misstatements of evidence. Westmoreland contended these distortions indicated malice.
In September of 1984 Judge Pierre N. Leval ruled Westmoreland had raised sufficient questions of "reckless falsity" to make inappropriate a summary judgement on CBS' behalf. Leval wrote the case should proceed to trial.
Testimony was presented through the ensuing months, in some instances by someformer high-ranking military officials supporting CBS allegations. Westmoreland and CBS ultimately settled their case out of court on 18 February 1985 with both sides agreeing to pay their own legal fees. Westmoreland received none of the $120 million claim but instead issued a joint public statement withCBS claiming that CBS "never intended to assert . . . General Westmoreland was unpatriotic or disloyal in performing his duties as he saw them." In essence, CBS stood by its program in the end.
Impact
At the same time the Westmoreland case was pending, another prominent military figure was also pursuing a libel lawsuit. Israeli general Ariel Sharon suedTime, Inc., which published Time magazine, for having printed an article on 14 February 1983 that accused Sharon of encouraging certain Lebanese militia forces to massacre some Palestinians in 1982. This case was the firstoccasion a major foreign official had attempted to use the U.S. court systemto sue for libel for statements concerning their official actions. The case was tried from November of 1984 to January of 1985 in New York, City before Judge Abraham D. Sofaer. A jury found Time not guilty due to lack of actual malice, and Sharon dropped his case. However, jury members made a special pointof stating that they thought Time had acted "negligently and carelessly" in preparing the article.
Generals Westmoreland and Sharon faced similar obstacles in their cases. Despite strong evidence of press misconduct, under the standard set by New York Times v. Sullivan they could not meet the difficult showing of proof required of public figures to win libel suits. Many in foreign countries were astounded by the stiff standards in U.S. courts. Even though statements were found to be defamatory and false in the Sharon case, they still were not considered libelous under the Sullivan standard. In the Sharon case, and other cases involving foreign officials, the press may not be able to successfully gain access to documents and witnesses because the lack ofcooperation of that government. In the Sharon case, Time came away victorious but embarrassed and poorer.
Immediate fears from the Westmoreland and Sharon cases was thatmore foreign and U.S. officials would begin using the court system for political vindication. Regardless of whether the official won their libel case, trial publicity could well serve the political purpose and at the same time ledto considerable legal expenses by the press in defending their publication.
During the late 1970s and early 1980s libel litigation exploded with damage awards and legal expenses reaching into the millions of dollars with the Westmoreland case being a key example. However, the record showed few individuals pursuing libel claims against the press actually received awards or any vindication of their reputation. Success in winning a libel suit was slim,and even if damages were awarded, the monies often went toward high legal fees.
The landmark case of New York Times v. Sullivan compelled public figures to prove a reporter wrote defamatory statements either in the belief thatit was false or with reckless disregard whether it was true or not. Such a standard is tough to achieve. Many considered libel law as it had evolved intothe 1990s, a legal disaster, though still the most common legal problem facing journalists. The law rarely satisfactorily protects either the First Amendment rights of the journalists or to vindicate the subject of the statements.In addition, court decisions since the 1960s have been viewed as inconsistentand increasing the complexity of demonstrating proof of harm and malice. TheWestmoreland case highlighted instances where millions of dollars were spent in attorney's fees by both sides, and yet never went to jury for a decision.
Proposals to reform libel law included the 1993 proposed Uniform Correction or Clarification of Defamation Act by the National Conference of Commissionerson Uniform State Laws. Intent of the proposed law was to provide a speedierand less costly remedy for defamatory disputes. However, by 1998 only one state had adopted the law. Critics of the law claimed it could well be unconstitutional on freedom of the press grounds. A publication may be forced to publish a correction or clarification of the original statement and reporters maybe forced to reveal confidential sources of information. By the end of the nineties no national standard for libel had been adopted and the advent of Internet libel cases introduced even more chaos into the realm of libel law. As the century closed, expensive libel suits and ineffective means of protectingreputations persisted.
Regarding the Westmoreland and Sharon cases, many believed public figures should not be able to sue for libel in instances involving eventsin which they were involved. These issues constitute political debates and are not the kind issues to be decided by juries. In Westmoreland's case, he wasa high-ranking policy-making official who should be openly subject to publicscrutiny.
Related Cases
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
- Rosenblatt v. Baer, 393 U.S. 75 (1966).
- Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
- Rosenbloom v. Metromedia, 403 U.S. 29 (1971).
- Sharon v. Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984).
Out of Court Settlements
In general, an out of court settlement may be reached in many types of civilcases, including but not limited to libel suits. The terms of agreement may be private or public, depending upon the parties involved. In some cases, money may be accepted in return for not going forward with a pending law suit, orone already in process. An out of court settlement also ends any potential future litigation, meaning an appeal cannot later be filed. This sort of settlement is made without input or agreement by the courts. The terms of the agreement are determined by the parties involved, and may be reached at various points in court proceedings.
Sources
West's Encyclopedia of American Law. Volume two. New York: West Publishing, 1998.
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