Reckless Disregard: Westmoreland v. CBS et al.; Sharon v. Time
Renata Adler’s fierce book about two recent libel suits—Westmoreland v. CBS and Sharon v. Time—has revived the debates they provoked and become a cause célèbre of its own. The lawsuits themselves attracted great public attention and were widely covered in both the American and foreign press. Both cases involved commanding generals, unpopular wars, and powerful press institutions. On January 23, 1982, CBS broadcast a documentary, called “The Uncounted Enemy,” about the war in Vietnam. It claimed to report “a conscious effort—indeed a conspiracy at the highest levels of American military intelligence—to suppress and alter critical intelligence on the enemy in the year leading up to the Tet offensive,” and showed General William C. Westmoreland, who commanded American forces in Vietnam, at the center of that “conspiracy.” In February 1983, Time ran a cover story about the massacre of Palestinian refugees by Christian Phalangist troops in Sabra and Shatila in Lebanon following the assassination of the Phalangist leader Bashir Gemayel. It said that the Israeli defense minister, General Ariel Sharon, had “reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir.”
Westmoreland and Sharon both sued for enormous sums. Westmoreland’s suit was financed by the conservative Capital Legal Foundation, which approached him after several firms had declined to take his case. Sharon’s principal lawyer, Milton Gould, volunteered his firm’s services. (Westmoreland said he would donate whatever compensation he won to charity.) CBS and Time were both represented by Cravath, Swaine and Moore, one of New York’s most prestigious law firms. David Boies of that firm headed the CBS team, and Thomas Barr the Time team. The trials were held at the same time (Sharon’s began later and finished earlier) on different floors of the United States Courthouse in Foley Square in Manhattan before two exceptionally able judges—Pierre Leval for Westmoreland’s trial, and Abraham Sofaer, who is now legal adviser to the State Department, for Sharon’s. These judges earned the virtually unqualified admiration of both sides and of all commentators on the cases I have read.
The plaintiffs were under a severe legal burden. The Supreme Court had held, in the famous 1964 case of New York Times v. Sullivan, that a public official cannot win compensation for libel unless he proves not only that the charge published against him was false but also that it was published with “actual malice,” by which the Court meant that the publisher knew it to be false, or published it with “reckless disregard” for its truth. Sharon’s jury decided, at the end of his trial, that Time’s statement about him was false, but that since Time had not known it to be false, he was not entitled to compensation. Westmoreland settled his suit just before his trial was to end, in exchange for no compensation—not even a contribution toward his expenses—and for a CBS statement that said only that…
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