The opinion of the court was delivered by: LEVAL
This is an action for libel. Plaintiff is General William Westmoreland, who served from 1964 to 1968 as Commander of the United States Military Assistance Command, Vietnam (MACV). Defendants are CBS Inc., and certain of its employees, officers and consultants, namely Mike Wallace, George Crile, Sam Adams and Van Gordon Sauter. The action concerns a television documentary report prepared by defendants and broadcast January 23, 1982, entitled CBS Reports -- The Uncounted Enemy: A Vietnam Deception. This documentary dealt with the intelligence estimates of enemy strength by plaintiff's command during the Vietnam War. General Westmoreland contends the central theme of the broadcast was that he led a conspiracy to suppress and distort intelligence as to the size of the enemy force -- or, more specifically, that in order to substantiate his optimistic reports on the progress of the war, General Westmoreland gave orders to his intelligence officers to underestimate the size of the enemy force in the Order of Battle.
Defendants move for summary judgment or dismissal on numerous grounds. First, CBS contends it enjoys absolute immunity dictated by the First Amendment from a libel action brought by a high public official challenging commentary on his performance of the duties of his office. CBS argues that the importance to an informed public of free commentary and criticism on the performance of duties by the highest ranks of public officials must take precedence over those persons' interests in vindicating injured reputations; that public officials of such high rank have sufficient access to the media to defend themselves without need for a libel remedy; that, regardless of the result of the suit, the mere incurrence of the expenses of defending such actions is debilitating and therefore intimidating to the press; that a libel action in such circumstances is functionally equivalent to the unconstitutional prosecution for seditious libel of the government; and finally that since the public official of highest category enjoys absolute immunity from libel actions for things he says in the performance of his duties, it is appropriate that the press and public should enjoy a corresponding absolute immunity for commenting on his performance of those duties.
It is undisputed since the historic ruling of the Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), that the press enjoys a qualified immunity for such commentary on public officials. This rule bars a public official's libel action for defamatory falsehoods unless he can prove by clear convincing evidence that the defamation was published with knowledge of its falsity.
CBS urges the court to go further and, as to high ranking officials, make the immunity absolute. CBS concedes there is no precedent giving direct support to its contentions. No case establishes such an immunity. Nor has any ruling directly rejected thesecontentions. The libel action by very high public officials is an unusual phenomenon. Plaintiff, needless to say, vigorously opposes defendants' arguments and points out, among many arguments, that he no longer held public office at the time of the broadcast.
I consider it inappropriate to rule in advance of trial on these novel contentions. The consideration of such far reaching changes in law, not only in the district court but in higher courts on review, is better based on the experience of a full trial record. Accordingly, these branches of defendants' motion are denied with leave to renew at the conclusion of trial.
Next CBS contends its charges were absolutely privileged as expressions of "opinion." See Letter Carriers v. Austin, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970); Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied, 434 U.S. 834, 98 S. Ct. 120, 54 L. Ed. 2d 95 (1977); Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062, 50 L. Ed. 2d 777, 97 S. Ct. 785, 97 S. Ct. 786 (1977); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S. Ct. 514, 54 L. Ed. 2d 456 (1977). See also Gertz v. Robert Welch Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 3006-07, 41 L. Ed. 2d 789 (1974).
This doctrine has been held to protect the description of a tough negotiating stance as "blackmail", Greenbelt, supra; a "scab" as "traitor", Letter Carriers, supra; a journal as "fascist", Buckley, supra; a biographer as a "toady" and "hypocrite", Hotchner, supra; and a judge as "incompetent," Rinaldi, supra.
On the other hand, it has been ruled inapplicable to the assertion in Buckley that the plaintiff habitually made false libelous accusations; and in Rinaldi that the judge had probably engaged in corrupt acts. The limits of the doctrine are explained in Cianci v. New Times Publ. Co., 639 F.2d 54 (2d Cir. 1980) where it was ruled inapplicable to the publication of a charge of rape. Judge Friendly there made clear that the doctrine has no bearing on a charge of commission of criminal acts.
CBS concentrates on its use of the word "conspiracy" in the broadcast, arguing that this is the kind of characterization that falls on the protected side of the opinion privilege. If this controversy centered on the use of the word "conspiracy," CBS" position might well have force. But that characterization is really peripheral. The heart of plaintiff's case centers on the accusations that General Westmoreland ordered, or prevailed upon, his officers to draw dishonest conclusions and give false reports evaluating intelligence data. An accusation of such misconduct is clearly outside the protection of the "opinion" rule. And it is irrelevant to the applicability of the rule that in saying what it said CBS was expressing its opinion. Cf. Cianci, supra, 639 F.2d at 64-66.
The principalbulk of defendants' voluminous briefs is dedicated to the point that summary judgment should be granted because what was stated in the documentary was true. To this contention, it is sufficient answer that plaintiff proffers evidence to the contrary. I express no views on the persuasiveness of the proofs offered by either side. Summary judgment must be denied if there is conflicting evidence on any substantial issue.
The most forceful branch of CBS" motion is the contention that plaintiff has failed to offer proof of such "malice" as a public figure must show to establish libel. "Malice" in this context does not carry its dictionary definition; it is the word of art, used in the Supreme Court's New York Times v. Sullivan decision, to signify the making of a defamatory publication either in the belief that it is false or with reckless disregard whether it is true or false. To dminish confusion with ordinary and common law malice, I refer to this element as "constitutional malice".
Defendants contend that the charges made in the broadcast were supported by so extensive and lengthy an investigation and by so many apparently reliable sources that defendants cannot be found to have published with constitutional malice.
If that were the end of the inquiry, defendant's position would have great force. For it is well documented that in preparation of the broadcast CBS conducted an investigation of approximately a year's duration, interviewed over 80 persons, many of whom had participated in the events in question in 1967 and 1968, and found a number of seemingly knowledgeable and reliable witnesses who confirmed and supported the broadcast's premise. In making the documentary CBS employed as its principal consultant defendant Sam Adams who had been a CIA intelligence analyst in the period in question. Adams had been an active participant in the Order of Battle controversy that raged in 1967 and 1968. He had long held and vigorously promoted the views expressed in the documentary. He had done considerable research to document his views, conducted many interviews, taken extensive notes and written an article on the subject published in Harpers Magazine in 1975.
Plaintiff argues that, notwithstanding the duration and bulk of CBS" investigation, it was biased and inadequate. He contends the selection of interviewees, the framing of questions and the handling of witnesses were designed to confirm a hostile premise rather than to find the truth. He contends further that witnesses, who were not privy to the facts and offered only speculative conclusions, were treated as authoritative if their views supported CBS" premise, while the contrary views of witnesses who possessed firsthand information were ignored by CBS.
Without expressing any opinion on the correctness of the plaintiff's contentions about CBS" conduct, they are probably insufficient in the context of these facts to establish constitutional malice. They do not demonstrate that defendants published their charges believing them to be false or with reckless indifference to their truth or falsity. The qualified immunity of New York Times protects the press against a public official's libel action based on lack of thoroughness or predispositon as long as the defendant is now shown to have published recklessly or in the belief that its assertions were false. It is difficult to conceive of an investigation conducted in so thorough a fashion that it would not be vulnerable to after-the-fact charges of inadequacy. The press is not obliged to satisfy the Platonic ideal of investigation to qualify for summary judgment on the issue of constitutional malice. And as for bias of the report, in the sense of a determined effort to confirm a previously formed suspicion, this does not establish malice. Cf. Greenbelt, supra, at 1539-1540; Cianci, supra, at 66; Nader v. de Toledano, 408 A.2d 31, 40 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S. Ct. 1028, 62 L. Ed. 2d 761 (1980). Reporters of course investigate where their suspicions lie. A previously formed belief rebuts as much as it establishes constitutional malice, as it tends to demonstrate sincerity.
Getting the truth from a reluctant witness often requires either cajoling and flattery or a rough cross-examination. The use of such tactics is often necessary to arrive at the truth. By itself, it does not demonstrate disregard for the truth.Nor is the reporter required to accept denials of wrongdoing as conclusive, or to prefer them over apparently creditable accusations. See Edwards v. National Audubon Society, Inc., 556 F.2d 113, 121 (2d Cir.), cert. denied, 434 U.S. 1002, 54 L. Ed. 2d 498, 98 S. Ct. 647 (1977).
If plaintiff's position were supported only by such contentions of insufficient thoroughness, bloodhound-determination, and bias, defendants might well be entitled to summary judgment where they could show they had relied after investigation on apparently creditable sources.
Plaintiff, however, also asserts contentions of dishonesty and willful falsity in the editing and presentation of evidence. These contentions concern arguable deliberate misstatements of the evidence supporting the broadcast thesis.
Although a reporter may have sufficient evidence of his charge to foreclose any material issue of constitutional malice for its publication, he may nonetheless make himself liable if he knowingly or recklessly misstates that evidence to make it seem more convincing or condemnatory than it is. If, for example, a publication asserts falsely and without basis that the charge was confirmed by an eyewitness, if in the editing process it distorts statements of witnesses so that they seem to say more than in fact was said, or if it falsely overstates a witness' basis for his accusation, these might raise triable issues of constitutional malice in spite of a sufficient foundation for the constitutionally protected publication of the basic charge. Cf. Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 24 L. Ed. 2d 695, 90 S. Ct. 701 (1970); Edwards v. National Audubon Society, Inc., supra, at 120; Nader v. de Toledano, supra, at 51-54.
Instances alleged to involve knowingly (or recklessly) misstated evidence include the following:
a. Col. Hawkins' characterization of figures:
Colonel Gaines Hawkins was a member of the MACV intelligence team who in 1967 was sent as part of a delegation to represent MACV at a conference of the National Intelligence Estimate Board. The conference was held to try to resolve differences of opinion among various agencies on the enemy strength. When CBS interviewed him in preparation of the broadcast, Hawkins had said:
"Now prior to this when we had the old figures that we inherited from the South Vietnamese forces, there was never any reluctance on my part to tell Sam [Adams of the CIA] or anybody else who had a need to know, that these figures were crap. They were history. They weren't . . . ...