Westmoreland's Surrender

Faced with devastating testimony against him, Gen. William C. Westmoreland has abruptly thrown in the towel in his $120-million libel suit against CBS, demonstrating that the case should not have gone to trial in the first place. As Westmoreland, CBS and others have noted, the judgment that he sought was the judgment of history, not of juries. Impatient, the general tried to use the libel laws to counter what he considered a smear on his good name. But, if anything, the resulting 18 weeks of testimony very nearly proved CBS' original contention that Westmoreland had deliberately held down estimates of enemy troop strength for political reasons when he was commanding general in Vietnam.

Not that CBS is blameless in this episode. Its 1982 documentary, "The Uncounted Enemy: A Vietnam Deception," did not live up to the high standards of fairness that the public expects from major news media. CBS' own internal report cited violations of standard network practices in putting together the show. There remains a question of whether the word "conspiracy" was properly used in describing how Westmoreland and his subordinates dealt with the enemy troop figures. In any case Westmoreland's side of the dispute was not adequately portrayed in the program as it was aired.

But, as U.S. District Judge Pierre N. Leval told the jurors throughout, unfairness and libel are not the same. Though the documentary may not have been fair, it was not libelous as the libel laws apply to public figures. Unlike Ariel Sharon, the Israeli cabinet member who proved to a jury recently that Time magazine had published a damaging falsehood about him, Westmoreland did not come close to proving that what CBS broadcast was untrue. Sharon's case against Time faltered on proving that Time knew that its statement about Sharon was untrue or that the magazine published it with reckless disregard of whether it was true or not. Westmoreland never got that far. If anything, CBS made a stronger case in court than it did on the air. Westmoreland may claim victory in the outcome, but his claim rings hollow. He simply gave up.

In attempting to strike a balance between an individual's right not to be unfairly defamed and society's need to have vigorous and open discussion of public issues, the courts have held for the last two decades that the needs of society should be given great latitude. Public figures such as Westmoreland have the ability to command a public forum and to make their voices heard. The Capitol Legal Foundation spent several million dollars in pressing Westmoreland's suit--money that could have been spent in helping Westmoreland put his side before the public. For its part, CBS also spent millions in defending itself--an expensive but important action for the network, for the news media and for the reading and viewing public that would be ill served by a timid press.

If news organizations, fearful of multimillion-dollar litigation, shy away from controversial subjects that could give rise to lawsuits, the public will be the real loser.

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