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Herbert v. Lando

January 15, 1986


Herbert appeals from an order of the United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge), granting summary judgment for Atlantic Monthly and partial summary judgment for defendants Lando, Wallace and CBS, Lando, Wallace and CBS cross-appeal from denial of summary judgment on two allegedly false and defamatory statements. Affirmed in part, reversed in part, and remanded to the district court with instructions that summary judgment be entered for defendants and the complaint be dismissed.

Author: Kaufman

Before KAUFMAN, TIMBERS and NEWMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

The First Amendment embodies one of our nation's strongest ideals, but in practice the principle itself has been subject to constant, unyielding attack. In media defamation law, there have been relentless demands for redress when the media appears to have exceeded the bounds of propriety. So it is that our courts, sensing that shackles on the press might be more easily imposed than lifted, have repeatedly refused demands that they restrict the scope of the First Amendment guarantees of free speech and a free press.

The Supreme Court recognized this principle and gave it the force of law in New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). This frequently cited case established the principle that a public official could not successfully sue a publisher for defamation unless it was published with "actual malice" -- that is, knowing falsity or reckless disregard for truth or falsity. Later decisions emphasized that the rights of a free press, "while lodged in the reporter and his publisher, in reality reflect an underlying interest of the public," Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595 n.12 (1st Cir. 1980), and acknowledged that "the First Amendment requires that we protect some falsehood in order to protect speech that matters." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).


With these principles in mind, we confront for the second time in a decade this defamation action brought by Colonel Anthony Herbert against Columbia Broadcasting Systems ("CBS"), producer Barry Lando, correspondent Mike Wallace, and the Atlantic Monthly. The prolonged and bitterly contested proceedings have come to a temporary halt upon the granting of partial summary judgment for the defendants and a complete dismissal of the action against the Atlantic Monthly, in a thoroughly reasoned and scholarly opinion by Judge Haight. Herbert appeals the dismissal and the granting of partial summary judgment. Lando, Wallace and CBS cross-appeal the denial of summary judgment on two alleged false and malicious statements.

The underlying facts of this case have been thoroughly explored by the courts on several previous occasions. See Herbert v. Lando, 568 F.2d 974 (2d Cir. 1977), rev'd, 441 U.S. 153, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979); Herbert v. Lando, 596 F. Supp. 1178 (S.D.N.Y. 1984); Herbert v. Lando, 73 F.R.D. 387 (S.D.N.Y. 1977). Because our evaluation of the propriety of the district court's actions depends heavily on the facts, however, we once again recite the necessary, but briefer, history of the case and its procedural background. We are fortunate in having Judge Haight's meticulous exegesis of this litigation already set forth in his fine opinion, thus avoiding the need for a detailed explication of the facts.

This action was brought by Anthony Herbert, a retired Army officer who charged that he was relieved of command in Vietnam because he reported to his superiors war crimes and atrocities committed under the supervision of U.S. military personnel. Herbert, a highly decorated soldier who also had served in Korea, was on duty in Vietnam from September, 1968 to July, 1969. Between February 6 and April 4, 1969, Herbert commanded the 2d battalion of the 173rd Airborne Brigade. His superiors were General John Barnes, commander of the brigade, and Colonel J. Ross Franklin, deputy commander of the brigade.

On April 4, 1969, Barnes relieved Herbert of his command of the 2d battalion and reassigned him to the Capital Military Assistance Command in Saigon. Herbert protested his relief from command, claiming it was without justification. In Saigon, he initiated a proceeding pursuant to Article 138 of the Uniform Code of Military Justice, 10 U.S.C. § 938, but was denied redress by a military board. Soon thereafter, Herbert was transferred back to the United States. On September 28, 1969 -- seventeen months after his relief from command -- he filed formal charges with the Fort McPherson Inspector General's Office. Herbert alleged the 173rd Airborne Brigade had committed war crimes and atrocities, but that when he reported the war crimes to Barnes and Franklin, they failed to investigate the incidents. Herbert also claimed Barnes then relieved him of command because he had made the charges. The Army's Criminal Investigation Department launched three investigations into Herbert's allegations, but eventually exonerated Barnes and Franklin of all charges.

After Herbert retired from the Army, the urge to write about his experiences prompted him to produce a book titled Soldier. New York Times reporter James Wooten collaborated. The book recounted Herbert's experiences in the military, including his attempt to report war crimes and his subsequent treatment by the Army. In the wake of the My Lai trials, media attention quickly focused on Herbert, who continued to press his accusations against the Army while publicizing his book on radio and television programs. Among his numerous appearances was one on the "The Dick Cavett Show," whose viewing audience generally was considered to be highly intelligent.

During the Army investigation of Herbert's charges, Barry Lando, then a writer for CBS, interviewed Herbert. He was impressed by Herbert's story and believed in his sincerity. Indeed, CBS broadcast a portion of the interview on its Weekend News program. Moreover, after the Army had cleared Barnes and Franklin of Herbert's charges, Lando continued to interview Herbert and, in his new position as a producer for "60 Minutes," suggested to CBS correspondent Mike Wallace that "60 Minutes" offer a favorable presentation on Herbert and his charges. Wallace, who was skeptical about some of Herbert's claims, told Lando he was reluctant to present Herbert's story. Instead, he suggested that Lando seek additional information.

Lando's subsequent investigation entailed interviews with more than 120 people and the examination of thousands of documents. For the most part, the Army cooperated with Lando's inquiries, but it refused to release its files on the investigations of Barnes and Franklin that had been prompted by Herbert's charges. Lando's further investigation, however, and his frequent conferences with Wallace, eventually convinced Lando that the Army had not relieved Herbert of command in Vietnam because of his purported attempt to report war crimes.

Based on Lando's disbelief in Herbert's story, Wallace agreed to broadcast a segment on "60 Minutes" casting doubt on the validity of Herbert's charges. The program was aired on February 4, 1973. Following the format of the "60 Minutes" presentation, "The Selling of Col. Herbert" was one of three segments broadcast that evening. In his introduction, Mike Wallace reviewed Herbert's charges as they had become known to the public through the media and Herbert's book Soldier. He then stated: "'60 Minutes' set out to investigate the validity of Herbert's allegations. . . . Here is our report." The program included film clips of Herbert's appearance on the "Dick Cavett Show," as well as portions of filmed interviews conducted by Wallace or Lando. In the course of the presentation, both Barnes and Franklin denied ever having received reports from Herbert about war crimes and atrocities. Moreover, individuals cited by Herbert in his book as supporting his story denied the accuracy of Herbert's charges. Some went even further, stating that Herbert himself could be capable of certain acts of brutality. Wallace concluded the program with this comment: "The Army could indeed help to 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. . . . 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."

After the "60 Minutes" program was televised, Lando wrote about his investigation into Herbert's charges. He sold the article to the Atlantic Monthly. The editors added a preface, or "streamer," which summarized Lando's involvement with the Herbert case leading to the "60 Minutes" broadcast. In addition, the editors collaborated with Lando in creating a conclusion that was critical not only of Herbert's charges against the Army at face value. The last two lines read: "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." Illustrating the article were design graphics of five silhouettes of a soldier, appearing as targets on a firing range. As the article progressed, the silhouettes became increasingly riddled with bullet holes. The article was published in the May, 1973 issue of Atlantic Monthly under the title, "The Herbert Affair."

On January 25, 1974, Herbert filed an action for defamation against CBS, Lando, Wallace and the Atlantic Monthly. The defendants cooperated in the discovery proceedings for over one year, but finally objected to answering questions concerning the "editorial processes" involved in producing the broadcast and the article. Specifically, Herbert had sought information regarding Lando's state of mind while he was researching Herbert's claims, conversations that took place between Lando and Wallace, and reasons behind Lando's decisions ultimately to include or exclude certain materials.

Judge Haight ruled Herbert had a right to discovery in these areas. 73 F.R.D. 387 (S.D.N.Y. 1977). This Court reversed on the ground that editorial processes were protected by the First Amendment. 568 F.2d 974 (2d Cir. 1977). The Supreme Court reversed, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979), and discovery continued. In late September, 1982, when discovery was complete, all defendants moved for summary judgment. In his memorandum filed in opposition to summary judgment, Herbert specified eleven statements appearing either in the broadcast or the article which he claimed were made with "actual malice" as defined in New York Times v. Sullivan, supra. On October 10, 1984, Judge Haight granted summary judgment for Atlantic Monthly and partial summary judgment for the remaining defendants with respect to nine of the eleven specific statements, finding there was no evidence that these statements were made with actual malice; he also denied summary judgment with respect to two other statements. 596 F. Supp. 1178 . Entry of judgment dismissing the suit against Atlantic Monthly was ordered pursuant to Fed. R. Civ. P. 54(b).

Herbert moved for reargument, citing four additional statements he claimed were actionable, and protesting Judge Haight's refusal to consider the "overall import" of the publications as a basis for the defamation action. The district court denied the motion. 603 F. Supp. 983 . On March 25, 1985, the remaining defendants -- CBS, Lando, and Wallace -- moved for dismissal of the two statements the court had deemed actionable. They claimed these statements could not possibly harm Herbert's reputation beyond the damage already done by the "nonactionable" statements. The district court denied this motion, and certified for appeal pursuant to 28 U.S.C. § 1292(b) the ruling granting partial summary judgment to defendants CBS, Lando and Wallace as to nine statements and denying summary judgment to these defendants as to the two remaining statements, the ruling denying plaintiff reargument, and the ruling denying defendants' renewed effort to dismiss the two remaining statements. We granted leave to appeal the issues raised below by orders dated June 6 and June 26, 1985.


A. The Nine Nonactionable Statements

We begin our discussion by reviewing the nine specific statements that Judge Haight found lacked any evidence of actual malice. (Appendix)*fn1 Following a painstaking analysis of the eleven statements specified by Herbert in his memorandum opposing summary judgment, Judge Haight held that in nine of the statements, Herbert had failed to produce sufficient evidence for a jury to find with convincing clarity that the statements were published with actual malice.

At the outset, we note that the "convincing clarity" standard for granting or denying summary judgment in defamation actions continues to be the law of this Circuit. Yiamouyiannis v. Consumers Union, 619 F.2d 932, 940 (2d Cir. 1980) ("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'," quoting Nader v. deToledano, 408 A.2d 31, 50 (D.C. App. 1979), cert. denied, 444 U.S. 1078, 100 S. Ct. 1028, 62 L. Ed. 2d 761 (1980)) (emphasis in original).*fn2 Since discovery in this case is complete, we see no reason to depart from the standard set forth in New York Times v. Sullivan, supra, 376 U.S. at 285-86 (jury verdict of liability reversed because "the proof presented to ...

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