The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
This is an action for defamation. Jurisdiction in this Court is based upon diversity of citizenship. Following extensive discovery, all defendants now move for summary judgment under Rule 56, F.R.Civ.P.
Plaintiff Anthony Herbert is a retired Army officer who had extended wartime service in Vietnam and who received widespread media attention when he accused his superior officers of covering up reports of atrocities and other war crimes, and of relieving him of his combat command when he persisted in such reports.
Defendants Barry Lando, Mike Wallace, and Columbia Broadcasting System, Inc. ("CBS") were involved with a television report on Herbert and his accusations which CBS broadcast on February 4, 1973 as part of its weekly "60 Minutes" program. Lando and Wallace were CBS employees. Lando researched and produced the program segment dealing with Herbert. Wallace narrated it, and also participated in preliminary interviewing and editing.
Lando thereafter wrote an article relating to Herbert which defendant Atlantic Monthly Company ("Atlantic Monthly") published in its May, 1973 issue.
The Allegations of the Complaint
Herbert's complaint contains two counts. Count One alleges that the February 4, 1973 "60 Minutes" program entitled "The Selling of Colonel Herbert" (hereafter "the program") defamed him. The defendants in this count are Lando, Wallace, and CBS. Count Two alleges that Lando's article appearing in the May, 1973 issue of The Atlantic Monthly magazine entitled "The Herbert Affair" (hereinafter "the article") also defamed him. The defendants in Count Two are Lando and Atlantic Monthly.
Specifically, Herbert alleges that the program and the article defamed him in the following respects, as summarized in plaintiff's brief on the present motion at 2-3:
"1. Herbert is presented as not having reported war crimes to his superior officers, Col. J. Ross Franklin and Brig. Gen. John W. Barnes, while serving as Commander, 2d Battalion with the 173d Airborne Brigade in Vietnam, and therby portrayed as a liar and as one guilty of violating the very military laws he accused his commanders of violating;
"2.Herbert is presented as never mentioning war crimes until My Lai became public, and thereby portrayed as a liar who falsely used the country's concern over war crimes as a means of explaining his own relief from command of the 2d Battalion of the 173d;
"3.Herbert is presented as a man capable of brutal acts and of condoning brutality against the Vietnamese population, detainees and prisoners, and thereby portrayed as a violent, sadistic and brutal man who violated the rules that were to govern his behavior as a soldier and an officer and who hypocritically accused others of criminal behavior of which he was guilty;
"4. Herbert is presented as a man who repeatedly lied not only in his charges regarding war crimes and command cover-up but also in his book Soldier concerning a number of events, and thereby portrayed as a liar and a fraud."
Defendants Lando, Wallace and CBS assert four defenses to the complaint. Wallace and CBS are concerned only with the program. Lando, who produced the program and worte the Atlantic Monthly article, asserts the same four defenses in respect of both.
The first defense asserted by these defendants is premised upon New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and its progeny. While the defendants contend that the program and the article are careful and accurate reports of the Herbert controversy, they also contend that in any event, no reasonable jury could find that the defendants published with actual malice. On this branch of their argument, defendants assert that the pre-trial discovery and the additional exhibits submitted with the motion demonstrates as a matter of law that at trial, Herbert could not meet his burden of showing by clear and convincing evidence that the defendants had knowledge of falsity or acted with reckless disregard for the truth. In these circumstances, the argument concludes, summary judgment should now be entered dismissing the complaint.
Secondly, these defendants contend that the program and the article constitute protected reportage of a public controversy about a public figure and public official. That argument is premised primarily upon the Second Circuit's opinion in Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir. 1977).
Third, these defendants contend that the program and article constitute protected expressions of opinion about a public figure and a public controversy.
Lastly, these defendants contend that the selection of information for inclusion in the program and article was a matter of editorial judgment as to which the courts have no role.
Defendants Atlantic Monthly, as publisher of the article, relies upon the first of these defenses, arising from the principles declared in New York Co. v. Sullivan and later cases.
History of the Litigation
Following filing of the complaint and joinder of issue, extensive discovery ensued. A time came, however, when the CBS defendants (Lando, Wallace and their corporate employer) balked at giving discovery in respect of what they termed their "editorial process."
Specifically, Herbert Sought to inquire into Lando's conclusions and state of mind during the course of his research; conversations between Lando and Wallace about matters to be included or excluded from the broadcast publication; and Lando's intentions as manifested by his decision to include or exclude certain material. This Court held that Herbert was entitled to discovery in these areas. 73 F.R.D. 387 (S.D.N.Y. 1977). A divided panel of the Second Circuit reversed. 568 F.2d 974 (2d Cir. 1977). The Supreme Court granted certiorari and reversed the Court of Appeals, reinstating this Court's judgment. 441 U.S. 153, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979). Thereafter considerable additional discovery took place.
Upon completion of discovery these motions were filed.No party suggests that additional discovery is required, or even possible. The present record constitutes the record that would be made at trial.Defendants' motions test whether a trial is necessary.
The first section of this opinion will consider the issue of "actual malice" arising out of New York Times v. Sullivan and later cases. I begin that consideration with preliminary discussions of plaintiff's burden of proof, and the standards to be applied in evaluating a defendant's motion for summary judgment.
The Burden of Proof Applicable to a Public Figure Who Sues for Defamation
Plaintiff Herbert's cause of action arises under New York defamation law. However, in New York Times v. Sullivan the Supreme court announced a constitutional rule. It is that, with respect to the alleged libels of public officials, the First and Fourteenth Amendments precluded recovery absent proof that the defendant had published a damaging falsehood "with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, supra, at 280. "The approach of New York Times was to identify a class of person -- there public officials -- and a type of activity -- there official conduct -- and to require as to defamations respecting them a particularly high standard of liability -- knowing falsehood or reckless disregard of the truth." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 28 L. Ed. 2d 35, 91 S. Ct. 621 (1971). The New York Times rule was extended to "public figures" by Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967). See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).
In the case at bar, Herbert concedes that by reason of his much publicized charges against the Army and his superior officers, he is a "public figure" within the meaning the New York Times rule. Indeed he is. The Second Circuit recently summarized the criteria. An individual is a "limited purpose public figure" if he has: "(1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media." Leerman v. Flynt Distributing Co., Inc., Dkt. No. 83-7735 (2d Cir., decided Sept. 10, 1984) at slip op. 6166. Herbert's much publicized war with the Army satisfies all these criteria.
Defendants argue that by virtue of his formermilitary rank, Herbert should also be regared as a "public official." Herbert disputes that characterization. I need not resolve the issue, because the burden of proof falling upon Herber under the New York Times rule is in either event the same.
That burden was most recently articulated by the Supreme Court in Bose Corp. v. Consumers Union of U.S. Inc., 466 U.S. 485, 104 S. Ct. 1949, 1965, 80 L. Ed. 2d 502 n.30 (1984):
"The burden of proving "actual malice" requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."
As Judge Friendly observed for the Second Circuit in Cianci v. New Times Publishing Co., 639 F.2d 54, 59 (1980), a plaintiff "within the ambit of Sullivan " also has, "at least as a practical matter, the burden of proving falsity, since he must in any event establish that defendant published with knowledge of falsity or reckless disregard of the truth." However, the Supreme Court in Bose specifically recognized that "there is a significant difference between proof of actual malice and mere proof of falsity," 104 S. Ct. at 1965.
Proof of actual malice is a more stringent a burden. It requires a public figure plaintiff to demonstrate actual malice by "clear and convincing evidence." Under the "clear and convincing" burden, "a mere preponderance of the evidence is not enough." Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977). The "clear and convincing" standard is "intermediate between the normal "preponderance of the evidence" civil standard and the "beyond the reasonable doubt" criminal standard," Yiamouyiannis v. Consumers Union of the U.S., Inc., 619 F.2d 932, 940 (2d Cir. 1980), quoting Nader v. de Toledano, 408 A.2d 31, 49 (D.C. 1979), cert. denied, 444 U.S. 1078, 62 L. Ed. 2d 761, 100 S. Ct. 1028 (1980).
New York Times articulated two bases for a "finding of "actual malice": publishing with knowledge that the statement was false, or with reckless disregard of whether it was false or not. "Knowledge of falsity" means what it says. Later cases further define the concept of "reckless disregard" for truth. In Herbert v. Lando, supra, the Supreme Court said that "absent knowing falsehood, liability requires proof of reckless disregard for truth, that is, that the defendant "in fact entertained serious doubts as to the truth of his publication." 441 U.S. at 156, quoting St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). As Gertz v. Robert Welch Inc., supra, makes clear and Bose Corp. v. Consumers Union of U.S., Inc., supra, reiterates, the plaintiff must prove on the part of the defendant a "subjective awareness of probable falsity," Gertz, at 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 n.6; such a finding may be inferred if, inter alia, "there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." St. Amant v. Thompson, supra, at 732. And in Garrison v. . Louisiana, 379 U.S. 64. 74, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964), the Court characterized statements made in reckless disregard of truth as "those false statements made with the high degree of awareness of their probable falsity demanded by New York Times.. . ." This formulation in Garrison, a state prosecution for criminal libel, is pertinent because in Herbert v. Lando, the Court cited Garrison for the proposition that "[c]riminal libel prosecutions are subject to the same constitutional limitations" as pertained to defamation actions by public officials or public figures. 441 U.S. at 156 n.1.
The element of subjective awareness is critical to the New York Times line of authority. It is not sufficient for a public figure plaintiff to prove that the defendant publisher, judged by the objective standard of the reasonable man, should have known that the defamatory statement was false; or that further investigation would have revealed the falsity. "[E]rrors of fact caused by negligence" are not compensable under New York Times. Time, Inc. v. Pape, 401 U.S. 279, 292, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971).A trial judge may not instruct the jury that the defendant publisher's liability turns upon whether or not he acted with a "belief founded on reasonable grounds of the truth of the matter published," since that standard "is far less stringent than that of knowing falsehood or reckless disregard of the truth," Monitor Patriot Co. v. Roy, supra, 401 U.S. at 273. These related principles are summarized in St. Amant v. Thompson, supra, at 731:
". . . reckless conduct is not measured by whether a reaosnable prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."
In Herbert v. Lando, supra, the Court observed that:
". . . New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant. To be liable, the alleged defamer of public officials or of pulbic figures must know or have reason to suspect that his publication is false. In other cases proof of some kind of fault, negligence perhaps, is essential to recovery." 441 U.S. at 160 (footnote omitted).
Citing Herbert, the Second Circuit held in Lerman, supra, that "actual malice" as is implied in that expression is a subjective test focused on the defendant's state of mind." Slip op. at 6174. The state of mind requisite for liability is knowledge of actual or probable falsity. Cf. Herbert v. Lando, supra, at 172: "If such proof results in liability for damages which in turn discourages the publication of erroneous information known to be false or probably false, this is no more than what our cases contemplate and does not abridge either freedom of speech or of the press" (emphasis added). III.
Applicable Standards inEvaluating Defendant's Summary Judgment Motions
The standards to be applied by trial courts in this Circuit in evaluating a defendant's motion for summary judgment on the "actual malice" issue are set forth in Yiamouyiannis, supra. The public figure defamation case is regarded for summary judgment purposes as any other; "neither grant nor denial of a motion for summary judgment is to be preferred." 619 F.2d at 940. However, as Judge Oakes observed in Yiamouyiannis, the court need not be concerned by the general inappropriateness of summary judgment to "state of mind" issues where (as in the case at bar) "the evidence on actual malice has been fully marshalled" by pre-trial discovery, and the parties do not "seek or suggest the need of further discovery . . ." Ibid. In such circumstances, Yiamouyiannis discribes the proper procedure in these terms:
"In a case where the defendant has moved for summary judgment on the issue of actual malice and the plaintiff claims that there remain material factual disputes, the court decides the materiality of the disputed facts by accepting the plaintiff's version and applying the actual malice standard. This standard requires a clear and convincing showing, which may be by circumstantial evidence, of defendant's actual state of mind -- either subjective awareness of probable falsity or actual intent to publish falsely. Therefore, a judge in denying a defendant's summary judgment motion must conclude that, based on the evidence asserted in the plaintiff's affidavits, "a reasonable jury could find malice with convincing clarity." 619 F.2d at 940 (quoting Nader v. de Toledano, supra, at 49, emphasis in original).
To state the converse, a defendant should be granted summary judgment if "a properly instructed jury could not fairly and rationally conclude upon clear and convincing evidence" that defendant's publications of false and defamatory statements "were knowing or made with actual malice," thereby demonstrating "defendant's requisite fault with respect to the factual error disseminated," Lerman, supra, at slip op. 6176, 1677.
Such a ruling is one of law, not fact. The public figure, plaintiff, to survive a motion for summary judgment, is not required to prove actual malice with convincing clarity to the motion judge. Nader v. de Toledano, supra, at 408 A.2d 49. Resolution of genuine issues of fact are for the jury.But where it appears that no reasonable jury could find actual malice with convincing clarity, the defendant is entitled to summary judgment.
Having made these general observations, one must also recall the Supreme Court's recognition in St. Amant v. Thompson, supra, that the concept of "reckless disregard . . . cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution statutes, or case law." 390 U.S. at 730-731. Thus the evidence in each case with respect to the allegedly false and defamatory statements must be carefully analyzed. Where, viewing the evidence in the light most favorable to plaintiff, a reasonable jury could make the requisite finding of actual malice, the case is for the jury. Goldwater v. Ginzburg, 414 F.2d 324, 377 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 24 L. Ed. 2d 695, 90 S. Ct. 701 (1970). It is equally clear, however, that in an appropriate case summary judgment in favor of defendant will lie. Yiamouyiannis, supra; Lerman, supra; Loeb v. New Times Communications Corp., 497 F. Supp. 85 (S.D.N.Y. 1980); Reliance Insurance Co. v. Barron's, 442 F. Supp. 1341 (S.D.N.Y. 1977).
In the light of these authorities, I turn to the particulars of the case at bar.
Herbert is a much-decorated soldier who enlisted in the United States Army as a private in 1947, at the age of 17. He retired on February 29, 1972 with the rank of Lieutenant Colonel.
Herbert served in Vietnam from September 1968 to July 1969. From February 6 to April 4, 1969, he commanded the 2d Battalion of the 173d Airborne Brigade. General John W. Barnes commanded the brigade. Colonel J. Ross Franklin was deputy commander.
On April 4, 1969 Barnes relieved Herbert of his command of the 2d Battalion. From April 5 to July of 1969 Herbert was assigned to the Capital Military Assistance Command in Saigon.
Herbert protested his relief from command by Barnes. While at Saigon he initiated a proceeding under Article 138 of the Uniform Code of Military Justice, seeking redress on the ground that his relief had been without justification. Major General Joseph R. Russ presided over a board which, after hearing a number of witnesses including Herbert, Barnes, and Franklin, denied Herbert redress.
Herbert was transferred from Vietnam and reported to the Command and General Staff College at Fort Leavenworth in July of 1969. Subsequently he was assigned to Fort McPherson. On September 28, 1970 Herbert filed with the Inspector General's office at Fort McPherson formal charges that war crimes and atrocities were committed in Vietnam by elements of the 173d Airborne Brigade. Herbert also filed charges against Barnes and Franklin for failure to investigate or report these incidents, which Herbert listed specifically. These charges generated three investigations by the Army's Criminal Investigation Department ("CID").Herbert also sought review of the negative efficiency report accompanying his relief from command. This administrative review is known as a "reclama." Ultimately all of Herbert's charges were rejected, and the review denied.
Herbert retired from the Army. With James Wooten, a New York Times reporter, he wrote an autobiography called Soldier which attacked the Army and its treatment of him. Herbert appeared on numerous television and radio shows to press those charges and publicize his book.
"Herbert first met Barry Lando on July 1, 1971. On that date Lando, then a news writer for CBS, interviewed Herbert at a motel in Natural Bridge, Virginia. The interview covered Herbert's background, the mistreatment of Vietnamese prisoners, Herbert's war crime charges, the Army's investigations of them, and Herbert's anticipated retirement from the Army. Herbert impressed Lando favorably. A part of that interview was broadcast on CBS Weekend News on July 7, 1971. Lando kept in touch with Herbert, and met with Herbert and his attorneys on three occasions in Atlanta during February and March 1972. By this time the Army had exonerated Barnes and Franklin of Herbert's charges, and Herbert had left the Army.
In September 1971 Lando had become one of several producers on "60 Minutes," CBS's popular weekly news program. In early March 1972 he recommended to Wallace that the program do a favorable report on Herbert.Wallace disagreed. He considered that "60 Minutes" could not add to the public's knowledge of Herbert, and that the program should not promote him further. Wallace also expressed skepticism of some of Herbert's claims. Lando persisted. Wallace told him to pursue his inquiries and obtain additional material.
Over the ensuing months, concurrently with other assignments, Lando continued interviewing individuals and examining documents about Herbert. He received considerable cooperation from the Army, stopping short, however, of a release of Barnes and Franklin investigatory files. All told, in preparation for the program, Lando interviewed more than 120 people and examined thousands of documents. He conferred frequently with Wallace. Lando says (affidavit, P35) that as the result of his investigation he concluded that the Army's investigations were not a whitewash, and that Herbert had not been relieved of command for trying to report war crimes to his superiors. Those conclusions persuaded Wallace that a segment on Herbert would be sufficiently newsworthy for "60 Minutes." The program was constructed, edited, and aired on February 4, 1973. I will consider in it some detail.
As noted, the program aired on Sunday, February 4, 1973. Caption "The Selling of Col. Herbert," it comprised one of the three-20 segments on the "60 Minutes" broadcast that evening. The program consists of edited excerpts of filmed interviews of Herbert and others, interspersed with comments by Wallace. The transcript is in evidence on these motions.
Wallace commences the segment by stating: "One of the sad legacies of our years in Vietnam is the distrust of the American military establishment the war planted in the minds of millions of Americans." Herbert is identified as one who helped to breed that suspicion. Wallace refers to Herbert's book "Soldier" as "a savage indictment of the Pentagon in general and some of its top officers in particular." Wallace identifies one of Herbert's aims as "proving that his military career was destroyed by the Pentagon only because he tried to report war crimes, atrocities, in Vietnam to his superior officers." Wallace concludes his introduction:
"60 Minutes set out to investigate the validity of Herbert's allegations. In the course of the last year, producer Barry Lando talked with scores of people in and out of the service -- people who have known Herbert and the Army. Here is our report."
The program then displays an excerpt from a prior Dick Cavett interview with Herbert, in which Herbert described the so-called "St. Valentine's Day Massacre" at Cu Loi. Herbert described for Cavett the massacre of Vietnamese civilians by South Vietnamese "national police" acting "under an American's charge." Wallace, resuming, says:
"As Herbert tells it, then and now, he tried repeatedly to have this and other alleged war crimes investigated by his commanders in Vietnam. As a result, he says, he was relieved of command and had his career ruined by an Army establishment intent on covering up atrocities."
Wallace goes on to decribe Herbert's distinguished military record, culminating in his appointment as commander of the Second Batallion of the 173d Airborne Brigade. Wallace says:
"Again Herbert excelled. In only 58 days he won a Silver Star and three Bronze Stars. But then, abruptly, in April of 1969, he was relieved of command by the same officer who had given it to him, General John Barnes."
The program then focuses upon Barnes, undergoing questioning by Lando and Wallace. Barnes expresses the view that Herbert was "a killer," that he "enjoyed killing," and would cause Barnes trouble in "the pacification," although in response to Lando's questions Barnes acknowledged that he had no "hard evidence" to show that Herbert was a "killer," and that Herbert's evident enjoyment in leading squads in the field with a M-16 rifle could "just be a sign of bravery." Barnes also expressed suspicion with Herbert's high body counts. And Barnes added: "I just didn't have confidence in him. I'd lost confidence in him as a commander with the ability to control his people."
These exchanges then occurred. Because of their central significance to the issues I quote them verbatim:
"LANDO: Did Colonel Herbert ever formally or informally report any war crimes or atrocities to you?
"BARNES: He himself never did to me.Absolutely not. If he had, I would have taken the same action I did when I learned of atrocities anywhere. If they are under my responsibility, I would have court-martialed the man responsible for it, as I told every replacement that came into the brigade.
"WALLACE: General Barnes' deputy commander was Colonel Ross Franklin. It was he who recommended to Barnes that Herbert be relieved. One reason, says Franklin, is that he had come to feel he could not trust Herbert's word.
"FRANKLIN: Tactically, he was the best battalion commander we had. I counseled Herbert several times and once I counseled him on telling the truth or being more exact in what he said. I told him at that time that he could run circles around all the rest of the battalion commanders if he'd just tell the truth.
"WALLACE: Did Colonel Herbert ever report war crimes or atrocities of any nature to you, Colonel Franklin?
"WALLACE: Verbally or in writing?
"FRANKLIN: In no way, either orally or in writing. This -- I had many conversations with Colonel Herbert. We discussed many things, but never war crimes."
Wallace resumes the narrative, describing Herbert's unsuccessful effort to obtain redress after losing his command, and the filing of Herbert's court-martial charges against Barnes and Franklin. On the latter point, Wallace says:
"And then in September 1970, 17 months after he had been relieved command, with the headlines filled with news of the My Lai trials, Colonel Herbert filed his war crimes charges with the Army Inspector General. Six months later, Colonel Herbert went public."
Franklin expresses his inability to understand why Herbert "has come up with totally fictional charges."
Responding to Wallace, Herbert reiterates his claim that he was relieved from command because of his insistence on having war crimes investigated. Wallace then observes that, "in almost all the cases" where Herbert claims to have reported war crimes to Franklin or Barnes, it was only Herbert's word against theirs."So what we decided to do," Wallace says, "was to zero in on the one case where there's a possiblity, anyway, of proving who's telling the truth -- without relying on your word against their word."
Wallace then summarized Herbert's account of speaking to Colonel Franklin by radio from the field on February 14, 1969, immediately after the Cu Loi killings, and then flying directly back to "Landing Zone English" later that day to report the incident personally to Franklin. Franklin then appears on the program to say that on February 14 he was "on R & R" (rest and rehabilitation) in the Ilikai Hotel in Honolulu, Hawaii and did not return to Vietnam until February 16. Herbert says: "If he [Franklin] says he wasn't there, I say he's lying." But Herbert acknowledges he cannot prove it. Wallace says: "60 MINUTES tried to find out who was telling the truth." Wallace then describes inquiries made by the producers at the Ilikai Hotel, leading to a hotel bill and Franklin's cancelled check payable to the hotel, "which means," Wallace states, "that he had to be in Hawaii to pay his bill himself on the 14th of February; therefore could not have been where you said he was on the 14th of February." Wallace also says that the 60 Minutes staff spoke with two Army officers who were in Hawaii at the same time, and who said that they flew back to Vietnam with Colonel Franklin, "taking off from Honolulu late on February 14, arriving at Camranh Bay in Vietnam on February 16, local time." Wallace shows Herbert the hotel bill and Franklin's check, and there is a colloquy about them.
"In his book, Colonel Herbert writes that there are several people who can testify that Franklin was in Vietnam on February the 14th. We asked Herbert for the names of those men. We contacted almost every one of them. None could confirm Herbert's claim. Serveral men serving under Herbert said they had heard Herbert say, while in Vietnam, that he had reported the February 14 killings, but none were certain that he had acutally reported them."
General Barnes materializes at this point to express puzzlement that, during Herbert's three months in Saigon for the Article 138 inquiry, he failed "to jot something down on a piece of paper, to get it notarized." That prompts Wallace to observe to Herbert that Herbert has no documents to show that he "ever reported a war crime to anybody prior to the time that the My Lai trials were going on at Fort McPherson in Georgia." Herbert debates the documentation issue with Wallace, reiterates that he reported atrocities to Franklin and Barnes; again calls them liars; and again insists that the Army deprived him of his military career because he insisted upon reporting war crimes and the Army wanted them covered up.
Wallace then focused the audience's attention upon the Longbinh Army base just outside Saigon, where Herbert went to appeal his relief from command --" and also, he says to present his war crimes charges." Wallace repeats Herbert's charge that Herbert spoke to Colonel John Douglass, a "U.S. military lawyer and judge in the country." Wallace states: "Herbert claims that Douglass listened to his story and then told him he wouldn't touch war crmies charges against a general with a ten-foot pole." Douglass then appeared on the program, being interviewed by Wallace. Douglass denies Herbert's account. In substances, Douglass says that Herbert told him he had a complaint about his relief; that Douglass turned Herbert over to his assistant, one Colonel Rector; that Herbert never mentioned war crimes to Douglass; and that Rector never told Douglass that Herbert had mentioned war crimes to him.
Wallace then confronts Herbert with Douglass's account. Herbert says Douglass's account is not true and that he never saw Rector. Wallace states that "60 Mintues" had contacted Colonel Rector, who said that he had spoken with Herbert "at some length" about his relief from command, but that Herbert "never claimed that war crimes had anything to do with it." Wallace expands on that theme:
"In fact, over the past several months, we have spoken with many men who saw Herbert after his relief in Vietnam. Some are still in the service, some are out. Most of them admire Herbert, yet to a man they say that Herbert never once said to them that he had been relieved because he had tried to push war crimes charges."
Shifting gears somewhat, Wallace askes Herbert if Herbert claims that the Army's investigation into the courtmartial charges against Barnes and Franklin was a "whitewash." Herbert makes an affirmative response. Wallace asks Herbert if he remembers an attorney by the name of "Ken Rosenbloom." "Yes, I do," replies Herbert; "I was the one that put you in contact with him." "Right," Wallace responds. The program then moves to an interview between Wallace and Rosenbloom. Wallace identifies Rosenbloom as a former captain in the Judge Advocate General's corps who handled the Barnes investigation, and is now an assistant district attorney on Long Isalnd. (The correct spelling is "Rosenblum," but in this section of the opinion I will use the version in the program transcript.) Rosenbloom in substance denies that the Barnes investigation was a whitewash. He describes travels "all over the country," "thousands and thousands of pages of transcript," and complete open access to information given by the Army. The ultimate verdict was that the charges against Barnes did not hold water; Rosenbloom described himself as open-minded, with no grudge against the Army, no grudge against Herbert, and no Army career to protect.
Rosenbloom fades from the screen, and Wallace again confronts Herbert. Herbert responds: "Then let them present the statements and the evidence." This is a reference to the fact that the Army has never consented to the release of the Barnes and Franklin investigation files. Herbert also says that another military lawyer, one Dick Heintz, "will verify what we have said." Wallace replies that 60 Minutes contacted "Herbert's military lawyer, Captain Heintz." Wallace continues:
"He said that, from the few documents he had seen, he suspected the Army was not doing its best to investigate Herbert's charges. But he said that he could not be at all certain of that until the full investigations are made public."
Wallace moves on to another topic. He says:
"Another thing that we found out checking out Herbert's book: although several men who served with Herbert say it's not so, there are others who claim that Herbert was an officer who could be brutal with captured enemy prisoners himself."
Wallace then turns to Herbert: "You used to have a radioman by the name of Bruce Potter, right?" Herbert acknowledges that he did. The audience then views part of a filmed interview between Potter and Lando. Potter recounts an incident suggesting that Herbert terrorized Vietnamese detainees by making them think he would throw them out of a helicopter. Potter and Lando fade out. Wallace confronts Herbert with the incident. Herbert denies it.Herbert then acknowledges to Wallace that he knows one "Bob Stemmies (the correct spelling is "Stemme," but I will continue to follow the transcipt), a military intelligence sergeant in Vietnam. Wallace advised Herbert that Stemmies had told 60 Minutes that "he was present once with you as a Viet Cong nurse was being interrogated by ARVN troops, being beaten by them to get her to talk, you were there, stood by, did nothing." Herbert denies the incident. Wallace asks Herbert if he remembers a helicopter pilot named Mike Plantz. Herbert says he does not.Wallace tells Herbert that while Plantz was flying a helicopter for Herbert, he saw Herbert beat up a "wood cutter" and also a Viet Cong prisoner brought back to Landin Zone English. Herbert denies that incident: "It's false. It's false."
Wallace then introduces the name of Bill Hill. The following exchange takes place:
"WALLACE: Bill Hill, one of your top company commanders --
"WALLACE: -- has told us that Herbert "is the best battalion commander I've ever had, but for some reason he's become a liar. It's all so much garbage."
"HERBERT: If he's still in the Army, he will do the same as other officers will do, I'm sure, in order to keep their career going. These men are not going to destroy themselves.
"WALLACE: In other words, he has simply chickened out and is going along with the Army line against Herbert?
"WALLACE: Well, that's what you're suggesting.
"HERBERT: I don't even know he said it. You're telling me he said it. But I'm sure he did say it if you say he did. I'm telling you, if Bill Hill feels I'm lying, he entitled to have that opinion, right?"
The program then turns to what one may characterize as the "Grimshaw Confrontation." Wallace introduces the =P0001*29 theme: "In checking out Herbert's book, "Soldier", we found numerous stories that, according to the people mentioned in those stories, are not true." "One such man," Wallace continues, is a Major Jim Grimshaw, who served under Herbert as a company commander in Vietnam. The program pans to Wallace's interview with Grimshaw. Grimshaw denies that he performed a hazardous feat described by Herbert in his book, or that Herbert recommended Grimshaw for the Silver Star for that incident, as Herbert said he did. Wallace askes Grimshaw; "What do you think about Tony Herbert?", tailoring the question to "things of which you have certain knowledge." Grimshaw responds that Herbert "has expanded some of these stories," and that Herbert has "blown it out." Wallace then asked Grimshaw if Grimshaw believes that Herbert was relieved from command "because he wanted to push allegations of war crimes and atrocities." Grimshaw responds in the negative.Wallace reminds Grimshaw that the interview is taking place in the Pentagon, and asks: "Did anybody here order you to come here and talk to us?" "No," says Grimshaw. Wallace asks Grimshaw: "You're your own man?" Perhaps not surprisingly, Grimshaw replies: "I'm my own man. I like to think I am. I hope I am."
Wallace then faces the cameras and says this:
"Jim Grimshaw telephoned Colonel Herbert after we had talked to him. Herbert called us with the news and he claimed that Grimshaw told him that he had spoken with us in the Pentagon only under pressure - that his career was on the line. Herbert told us that was the reason that other officers had also come out against him. When we checked with Grimshaw, he denied telling Herbert that. So to settle the argument, we flew Grimshaw and his wife to New York and had them wait outside listening to our interview with Herbert. When Herbert again intimated that Grimshaw had been pressured by the Pentagon to bad-mouth Herbert, we told Herbert that Grimshaw was there."
The program then reverts to Wallace's interview with Herbert. Grimshaw enters, stage right. He and Herbert greet each other. Herbert and Grimshaw, with occasional interjections by Wallace, discuss the accuracy of those incidents in "Soldier" of which Grimshaw has personal knowledge. Grimshaw says: "So, now we're talking three incidents, when you get right down to it," and adds: "I'm telling you two-thirds, then, are not true." Wallace immediately asks Grimshaw if he was under any pressure from the Pentagon or his commanding officer to give Wallace an interview. Grimshaw answers: "No," "Absolutely not," overriding Herbert's statement: "You told me that." "And I wasn't briefed," Grimshaw adds for good measure.
Next, Wallace elicits from Grimshaw an implied criticism that Herbert should have checked out his stories with people whose names appear in the book. Grimshaw says: "Why didn't you call guys like myself or Hill or some of these guys." Herbert expostulates with Grimshaw, but Grimshaw again overrides him:
"GRIMSHAW: You know, you're making us a public figure --
"HERBERT: Okay, wait a minute, Jim.
"GRIMSHAW: -- whether you want -- You know, you're trying to do me a very good job and, in a sense, maybe I think it's because of all the problems that occurred and you maybe want to put us in a good light to the American public. But now you've made me a public figure. I can't help it; I have to speak out."
Wallace then describes the generally favorable and uncritical publicity that Herbert had received from the media. Attorney Ken Rosenbloom appears again to express the opinion that "because of the temper of the times and what the country wanted to hear, perhaps, or because the media was looking for another hero, they tended to accept these allegations uncritically." Wallace then draws from Franklin the acknowledgment tht Franklin refused to talk to the New York Times in Vietnam. At this point, Barnes observes that during the courtmartial investigations, the Army's policy was not to put out any statements, so that "the press had no place else to go for information but back to Herbert, where the source was. And I just think that the press did what they could but they weren't given both sides of the stories."
The program concludes with the following:
"LANDO: Why not make the investigation public, then?
"BARNES: Don't ask me. If I was in charge I would, but I'm not in charge.
"HERBERT: One of the things I have said from the beginning is that you'll never know for sure. No one will know the whole truth until the Army releases for publication every single document and statement they have, which they have not done unless they've let you read them all. And the second portion [sic] is, until they have a full Congressional inquiry to find out is Herbert telling the truth? Is Herbert lying? Is Ross Franklin telling the truth? Is Ross Franklin lying? And lay it all out there for everybody - and I'm sure that's what you're trying to do to some extent tonight and I go along with it.
"The Army could indeed help resolve the controversy. They could open their files to a public airing. They could make themselves available for questioning about the whole Herbert business. But they won't. I asked former Army Chief of Staff William Westmoreland to talk about it. He refused to be intereviewed. I asked General Winant Sidler, the Army's Public Information Chief. He refused, too. Why? We heard two lines of speculation among Petagon people. One is that the Army doesn't want to help make a martyr of Tony Herbert.And the other is that during their various investigations into Herbert's charges, the Army found so many true stories of war crimes that, irrespective of whether Tony Herbert had reported any of them, the Army just doesn't want to wash that kind of dirty linen in the open. Perhaps the best way to stop all speculation is to do what you heard Anthony Herbert and General Barnes suggest a moment ago: make the Army investigations public."
Herbert's statement appearing in this concluding exchange was in fact transposed by CBS, in the editing process, from the beginning of Wallace's interview with Herbert to the end.
Shortly after the program was aired, Lando began work on an article. Its purpose, according to Lando, were to describe Lando's investigation of Herbert and the preparation of the program; to counter charges Herbert was making against Lando and the program; and to discuss Herbert's ready acceptance by what Lando regarded as the "liberal" press.
Lando sold his article to defendant Atlantic Monthy. Atlantic editors participated in readying the manuscript for publication. The article appeared in the May 1973 issue of the magazine, under the title "The Herbert Affair."
The article runs over nine pages of the magizine. Atlantic Monthly's editors composed a preface to Lando's words. That preface, known in the trade as a "streamer," is the first text to appear under the title. It reads as follows:
"He seems to be the perfect soldier, a hero in Korea and in Vietnam. Then he was driven out of the Army, his career ruined because he tried to prevent his supervisors from concealing war crimes against the Vietnamese. That was the story a television producer persuaded his superiors at CBS should be presented to a nationwide audience. As the producer and his associates began assembling the facts, they found it changing into a very different story, one that left the reporter disillusioned and the hero threatened with decanonization. The producer here tells how the case unfolded for him, from his first, convincing interviews with Lieutenant Colonel Anthony Herbert, through intensive researching of Herbert's alarming charges against fellow Army officers, to a dramatic confrontation between Herbert and some of those who disputed him on the CBS program, Sixty Minutes, shown on February 4 of this year.It is a tangled story, to say the least. One of its lesser anomalies: Herbert's book Soldier, now profitably riding the bestseller list, is published by Holt, Rinehart and Winston, which is owned by CBS, the organization that has done the most to attack the book's integrity."
Lando's text then begins. Lando describes his intitial interviews with Herbert, the favorable impression Herbert made upon him, and Lando's belief in Herbert's charges against Barnes, Franklin, and the Army. In July and September 1971, Lando notes in the article, Herbert received favorable writeups in Life magazine and the Sunday magazine section of the New York Times. That second piece, Lando notes in his Atlantic Monthly article, "was written by the Times Southern correspondent James T. Wooten. Wooten had covered Herbert since he first made his charges public, and had come to believe fully in the man and most of his claims."
Lando goes on to recount Herbert's appearance on the Dick Cavett Show, and the increasing publicity that Herbert's charges were receiving in the Congress andin the press. Lando describes the responses to the charges that the Army began to make, following the Army's exoneration of General Barnes in October 1971. "Fueled by such information and interviews provided by the Army," Lando writes, "several reporters began to write pieces seriously questioning Herbert's claims." An excerpt from the transcript from the "60 Minutes" broadcast is quoted, setting forth Franklin's denials of reports or conversations with Herbert about war crimes.
In the article Lando recounts his initial enthusiasm for doing a favorable "60 Minutes" segment on Herbert, and Wallace's initial skepticism. Lando describes his ensuing investigation, interspersed with further quotations from the "60 Minutes" transcript.Lando describes interviews, evidence, and evaluations which ultimately persuaded him that Herbert was not truthful.
Lando is also critical in the article of Herbert's book Soldier, describing it as "a melange, a kaleidoscope of truth, half-truth, and fabrication." Lando gives examples of these imperfections, as he perceives them. Lando quotes comments made by S.L.A. Marshall in an article Marshal wrote for the National Review, which cast doubt on the accuracy of Herbert's prior account of events in Korea. Lando points to discrepancies he perceives in Herbert's earlier book, Conquest to Nowhere.
Lando describes Herbert's third appearance on the Dick Cavett Show in January 1973. Herber referred to Pentagon documents which he said would prove his case; but, Lando observes, Cavett did not ask Herbert to produce them.
In the article Lando expresses surprise that the firm of Holt, Rinehart and Winston, the publishers of Soldier (which Herbert wrote with the assistance of Wooten) did not react or contact CBS in any way after the unfavorable "60 Minutes" segment had been aired. Lando writes that when he was preparing the Atlantic Monthly article, he called Holt to inquire about the captions to several photographs in Soldier which Lando perceived to be inaccurate. Holt editors and officers are quoted as responding, in substance, that they had not checked out the details, although one Holt editor added: "There is no question in our mind about the substantial validity of Tony's story."
"What to conclude? I don't pretend to know the motives behind the behavior that has brought Herbert to national prominence. It seems plain to me that they included a desire to salvage his threatened career and to seek revenge on Colonel Franklin and General Barnes, and that to do so he exploited the issue of the war crimes.
"The Army has not released the contents of its investigation into the Herbert affair. The Army is not compelled to do so.There is no recent precedent for such disclosure, though it would presumably go a long way toward clearing the air. The Army, however, may well resist the information because it would include many accounts of atrocities that would further damage the Army's own reputation.
"It is important not to let the vagaries of the Herbert affair obscure the fact that atrocities did occur, before Herbert's eyes and the eyes of countless others. Indeed, the argument can be made that Herbert, whatever his distortions and inventions, is to be thanked for keeping the nation's eyes on the war crimes issue.But I am not confortable with that argument, because it forgets the responsibility of the press. The press, which long had been negligent about dealing with the question of American War crimes, found in Herbert a heroic figure, a martyr through whom to dramatize the issue. But we bought ourselves a martyr with feet of clay."
Atlantic editors had considered input with respect to the wording of the concluding paragraph of the article.Robert Manning, then editor-in-chief of the magazine, was particularly involved, conferring with Lando about the wording. The magazine's editors were concerned with summing up and clarifying the themes of the article.While the evidence on certain points is in conflict, a jury could reasonably find that Manning was the first to suggest the phrase in the final sentence: "a martyr with feet of clay."
The evidence also shows that at the initiative of Atlantic editors, Lando included in his article the following paragraph:
"One of the few reviewers to question Herbert's credibility discovered inaccuracies in his account of Korean experiences. S. L. A. Marshall wrote in the National Review: "As for where truth lies in this incident, and the reliability of Mr. Herbert's testament, if his recollection of what happened around Ankhe and Tuyhoa in Vietnam is no better than his recall of experience in Korea, the grading should be zero minus. Having been there at the same time, moving through the same scenes with the same outfits, I say that he dilates expansively on things that never happened."
Finally, Atlantic contributed the graphics which accompany the article. These graphics consist of five silhouettes of helmeted soldier, depicted as if they were targets on a firing range. These illustrations appear on pages 1, 3, 5, 7, and 9 of the article. The last illustration appears underneath the concluding paragraph. As the article progresses, the soldierly silhouette becomes increasingly riddled with bullet holes. There are none of the first illustration; the fifth and last resembles Swiss cheese.
"Actual Malice" and Herbert's Claims against Lando, Wallace, and CBS
It is now time to examine in detail statements in the program and article which plaintiff claims are actionable: that is, statements plaintiff alleges were false, defamatory, and made with knowledge of actual or probable falsity.
On occasion plaintiff's brief lumps all "defendants" together indiscriminately. But there are significant differences in status. Lando was the prime investigator and architect of the program, and sole author of the article.Wallace did some investigating and contributed to the structure of the program. CBS employed them both. While Atlantic Monthly published Lando's article, it had nothing to do with the program, and did no investigating.Obviously different issues of liability arise. I shall first deal with the charges of actual malice on the part of Lando, Wallace and CBS. Atlantic Monthly will be considered separately.
Much of plaintiff's 282-page brief deals with background material: the perceived predisposition of Lando and Wallace to debunk Herbert; the methodology of the investigation; facts omitted, avenues left unexplored, contradictions ignored. All this plays an admissible and potentially useful role in the analysis of a public figure defamation case. But a time comes, in response to summary judgment motions, when the plaintiff must specifically identify those statements which he says were made with knowledge of actual or probable falsity. He cannot rely on the allegations of his complaint, even those allegations which purport to identify specific false and malicious statements. The legal sufficiency of that pleading brought the defendants into court and required them to answer. Since joinder of issue on the pleadings extensive discovery has been conducted. At the end of that discovery, defendants move for summary judgment. They say, in essence, that some of the contents of the program and article are not defamatory; none of them are false; and in any event no statement was generated by actual malice. Elaborate affidavits and briefs are offered in support of these propositions. In responding, plaintiff must abide by Rule 56(e), ...