"It Was the Best I Could Get"

By WILLIAM A. HENRY III

The retired general held his head high for the 200 reporters and photographers at his press conference at Manhattan's Harley Hotel last week. Pale and tired-looking but firm of voice, he claimed victory in his $120 million libel suit against CBS. Although William Westmoreland had withdrawn his case and had won no money, no vindication by a jury and no retraction, he said that a joint statement issued by him and the network had provided the affirmation of his honor that he had sought. The statement said, in part, "CBS respects General Westmoreland's long and faithful service to his country and never intended to assert, and does not believe, that General Westmoreland was unpatriotic or disloyal in performing his duties as he saw fit." Said Westmoreland: "It was in essence an apology. I'm going to try to fade away."

Minutes later at the Dorset Hotel, several blocks northwest, CBS Executive Vice President Van Gordon Sauter arrived for his own press conference, pipe in mouth and bow tie flopping, to tell a similar number of reporters and photographers that the network also claimed victory. CBS had spent several million dollars defending itself, conducted an internal investigation that uncovered substantial violations of its own procedures, and endured widespread critical judgment that its treatment of Westmoreland had been one- sided. But Sauter asserted that the Jan. 23, 1982, documentary, The Uncounted Enemy: A Vietnam Deception, had been vindicated. Said he: "Nothing has surfaced in the discovery and trial process now concluded that in any way diminishes our conviction that the program was fair and accurate." As if to underscore that feeling of triumph, CBS staffers had held a party in a hotel room the night before, and gathered again two nights later at the flashy disco-restaurant Regine's.

With those contrasting statements, which came after 18 weeks of testimony and just a few days before the scheduled end of the trial, one of the most celebrated libel cases in American history was removed from a court of law and placed where legal scholars believed it belonged from the outset, in the court of public opinion. The result seemed to validate the conventional legal wisdom that public figures have little chance of sustaining libel victories % against the press, but to prove as well that their suits can cause significant concern and expense (see ESSAY).

The jurors expressed disappointment at not being called upon to render a verdict. A majority said they had been leaning toward CBS, but some thought each side had presented a substantial case. Said Judge Pierre Leval, who had warned at the outset that the suit could easily turn into a futile effort to re-evaluate the war in Viet Nam: "Judgments of history are too subtle and too complex to be satisfied with a verdict. It may be for the best that the verdict will be left to history."

The abrupt resolution of the case came as a shock to nearly everyone who had been following it, even to Attorney George Leisure of the firm Donovan, Leisure Newton & Irvine. He had been advising Westmoreland and thought the general had a good chance of winning. Said Leisure: "I was stunned. I was unaware that negotiations were going on." But in fact, repeated attempts had been made to reach a settlement. Before the trial started, according to sources involved in the out-of-court talks, CBS offered Westmoreland the same sort of statement he eventually accepted, along with 15 minutes of free TV airtime to reply in any fashion he chose and a contribution toward his legal fees. The general reportedly refused, insisting that he wanted a statement containing the words apology and regret and explicitly disavowing the 90- minute documentary. During the course of the trial, both sides exchanged further offers, but those of CBS steadily narrowed. In the end, as CBS piled up evidence, and as Capital Legal Foundation, a Washington-based nonprofit corporation that was providing Westmoreland's defense, ran short of money, the general agreed to settle for less than he had apparently been offered originally. Of his final acquiescence, Westmoreland told the New York Times: "I figured it was the best I could get."

What Westmoreland could not get, despite repeated insistence, was any statement by CBS that the program was wrong or even the slightest admission that the information it was based on had been incomplete. The general fought for that concession up until minutes before he signed the agreement late in the afternoon of the day before it was announced. According to sources close to the negotiations, Capital Legal Foundation President Dan Burt pressured the general to concede and wore him down. Although the decision disappointed Westmoreland's conservative backers, settlement appealed to both sides because + it allowed each to come away with something, rather than risk outright defeat by a verdict of the jury.

The controversy about The Uncounted Enemy began even before it aired, when the network ran print ads that featured the word conspiracy. During the show, Westmoreland was depicted as having been at the center of a "conspiracy at the highest levels of military intelligence" to mislead the President and the public about the success of a war of attrition against Vietnamese insurgents. Westmoreland did this, the program said, by systematically understating the levels of enemy troop strength. He held a press conference a few days later to denounce those assertions.

Four months later, TV Guide heightened the controversy with a cover story, "Anatomy of a Smear," that detailed the unorthodox procedures used in making the program: reinterviewing someone to get him to be more forceful on camera, showing an interview subject the raw footage of other interviews to get him to concur, allegedly coaching an interviewee and, as Westmoreland described it, "rattlesnaking" him by misrepresenting the nature of his on- camera interview so he would arrive inadequately prepared.

The TV Guide article prompted Sauter, then president of CBS News and now its corporate overseer, to order an investigation by Senior Producer Burton Benjamin. Benjamin sternly criticized the methods of the show's producer, George Crile, but did not address most questions about substance. CBS announced that it "stood by the broadcast," and Westmoreland condemned that stance as a "whitewash." Although he had been counseled by former colleagues not to sue because a public figure was unlikely to win a libel trial, Westmoreland accepted the offer of Capital Legal Foundation to represent him; much of the $2 million cost of his case was provided to Capital by conservative foundations and individuals.

Prior to the trial, the case was kept in the headlines by both sides' aggressive efforts at public relations. Much of the publicity favored Westmoreland. Once the suit reached court, Attorney Burt demonstrated that several key former officials who took Westmoreland's side either were not interviewed for the broadcast or, like President Johnson's National Security Adviser Walt Rostow, were left on the cutting-room floor. But Judge Leval counseled the jury that "fairness" was not an issue; Westmoreland had to prove both that the documentary was false and that CBS had good reason to know so.

When CBS Attorney David Boies presented the network's case, the initiative shifted dramatically. A succession of current and former Central Intelligence Agency officers stated that estimates of enemy troops had been tainted by politics. Producer Crile offered an impressive point-by-point explication of the evidence for each assertion in the program. In the most dramatic moment, Westmoreland's former intelligence chief and close friend, retired Major General Joseph McChristian, testified that his boss had "improperly" held back a cable about high troop estimates because it would cause a "political bombshell" in Washington.

Opinion was divided on whether the outcome in Westmoreland's case, and in the libel case that former Israeli Defense Minister Ariel Sharon lost against TIME, would encourage or discourage libel suits. Said Executive Editor Heath Meriwether of the Miami Herald: "The ability of CBS to put on a rousing defense was well noted, and I would hope that this has raised red flags among potential plaintiffs. Libel litigation has not proved to be either effective or efficient as the forum in which to seek redress for alleged wrongs." First Amendment Attorney Floyd Abrams, whose clients have included the New York Times, agreed: "General Westmoreland is clearly the loser . . . The immense risk in seeking vindication is that you will actually worsen your own reputation." But Editor Gene Roberts of the Philadelphia Inquirer contended, "Westmoreland proved that you can cost a major TV network millions of dollars and tie up its management and journalists for months in litigation. The settlement won't diminish these cases, it will increase them."

Libel suits have been increasing rapidly over the past few years, according to the Libel Defense Resource Center, and recent outcomes have ranged from multimillion-dollar verdicts now on appeal to a $10,000 judgment won last week by a former Oriskany Falls, N.Y., high school cafeteria cook whose output was described by the school paper as "not fit for dogs to eat." One result is that news organizations have been spending more money on legal advice. Ed Turner, vice president of Cable News Network, maintains that "if you are going to be in the investigative business, you have to budget for legal reviews the same way that you do for reporters." Says Frank McCulloch, until recently the executive editor of the California-based McClatchy newspaper chain: "People sue us today for things they scolded us for on the phone a , few years ago. Our legal fees have been $1 million a year. Some smaller papers are saying they cannot afford the costs." In suburban Philadelphia, Publisher Irvin Lieberman eliminated investigative reporting from his chain of six weeklies after being sued twelve times for libel by public officials since 1973. Says he: "I found myself vigorously defending the First Amendment and watching my business go to hell. Now the communities our papers serve no longer learn about the misconduct of their officials."

Large news organizations, including CBS, insist that Westmoreland's and other suits will not deter them from undertaking touchy stories. They have resources to weather a court case, they say, and their bread and butter is public policy. Says NBC News President Lawrence Grossman: "I do not want to sound arrogant, but those suits have had no impact."

Still, most journalists admit they are taking greater precautions to avoid libel suits, at the simultaneous cost of a bit of venturesomeness and enterprise. Even though the news media generally win in the law courts, reporters and editors fear the legal expenses and the damage to their credibility. They are worried that everyone involved in a libel suit is likely to be a loser in the eyes of the public.

With reporting by Kenneth W. Banta and Marcia Gauger/New York, with other bureaus