Inc. Westmoreland v. CBS

The case affirmed stringent standards set for public figures to successfully seek libel damages through litigation. Public figures must prove actual malice. Despite evidence of press misconduct in this and a similar contemporaneous case involving Israeli leader Ariel Sharon, both plaintiffs lost. This case received significant national publicity and underscored the many problems with libel law in the United States. A number of national reforms were proposed following 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 when North Vietnamese forces invaded the city of Hue and other South Vietnam cities including Saigon. Known as the Tet Offensive, the North Vietnamese were at first successful in capturing Hue but U.S. forces counterattacked repelling the North Vietnamese forces. The U.S. victory was costly as fighting had been intense throughout the region. The battles dramatized to the American people the 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 longest and 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 forces in 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 Uncounted Enemy: A Vietnam Deception." The narrator, Mike Wallace, took an aggressive investigative approach in preparing the documentary. The theme of the program was 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 Tet Offensive successes by the North Vietnamese. Wallace accused Westmoreland of juggling enemy troop figures to produce an artificially low count in order to please 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 the allegations raised about his conduct. The Capitol Legal Foundation, offering to 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 they believed 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 duty in Vietnam. CBS further claimed the libel lawsuit essentially constituted "unconstitutional prosecution for seditious libel of the government" by forcing CBS 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 way questions 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 some former 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 with CBS 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.