THE DUMB DEFENSE RESTS AGAIN IN ‘RECKLESS’

These are not glory days for the news media.

It’s true that CBS “won” when retired Gen. William C. Westmoreland aborted his libel suit against the network over a “CBS Reports” documentary. The program charged him with conspiring to mislead the White House about enemy troop strength while commanding U.S. forces in Vietnam.

In so-called victory, though, CBS had to open some of its news gathering practices to public examination and admit that its documentary had cut some ethical corners in nailing Westmoreland.

It’s also true that Time “won” its case with former Israeli Defense Minister Ariel Sharon recently when a jury rejected Sharon’s claim that an article in the magazine had defamed him with “actual malice.”

The jury did find that a paragraph referring to Sharon in the disputed article was indeed defamatory and erroneous, making Time’s post-trial declaration of victory a hollow one.

What Sharon failed to show, however, was that Time had deliberately defamed him. Under libel law, as usually applied to public figures, he had to persuade a jury that Time had acted with “actual malice” or “reckless disregard for the truth.” Instead, the jury seemed to conclude, in effect, that Time was wrong, but didn’t know it was wrong and was guilty only of being sloppy or inept. Whew!

The Dumb Defense wins again.

And now comes a TV movie closely paralleling another famous media case, the 1983 slander suit by Lynwood, Calif., physician Carl Galloway against CBS concerning its blockbuster magazine series “60 Minutes.”

The movie is “Reckless Disregard,” a tight, well-crafted, two-hour, made-for-pay-TV drama airing this month and in April on cable-delivered Showtime.

Written by Charlie Haas and directed by Harvey Hart, it’s an interesting story and a generally faithful depiction of TV news at its shakiest. It also recounts some of the issues raised by the widely publicized Galloway case.

The defendants “won” that case, too, when Galloway failed to prove that a “60 Minutes” segment on an auto insurance scam had demonstrated “reckless disregard for the truth” by showing a falsified medical report purportedly bearing Galloway’s signature.

Dan Rather was the reporter on the “60 Minutes” segment (this was before he had become anchor of the “CBS Evening News”) and was a co-defendant in the suit.

Galloway claimed that his signature had been forged, a charge that CBS did not directly dispute during the trial. But CBS got off the hook by evoking the Dumb Defense, apparently convincing the jury that it had every reason to believe that the signature was authentic and thus was justified in presenting it on the air before millions of viewers.

So bug off, Dr. Galloway.

The offending television show in “Reckless Disregard” is called “Hourglass Magazine,” the network is called ADS and the victimized physician is named Edward Lucas (played by Frank Adamson). He sues the program after it erroneously links him to a “pill mill” by showing his forged signature on a phony prescription.

Lucas and his inexperienced small-time attorney Meredith Craig (Tess Harper) are seemingly overmatched by powerful ADS. What’s more, ADS is able to put on the stand the self-assured, all-knowing, all-wonderful “Hourglass” anchor Bob Franklin (Leslie Nielsen), who reported the “pill mill” story on the air. He is clearly meant to be Rather.

Just as the Galloway case illuminated some of the murky areas of TV journalism, the fictional case in “Reckless Disregard” does the same with “Hourglass Magazine.” The light is harsh and uncompromising.

We see Franklin and a crew burst into a medical clinic with their camera rolling, only to be foiled by a technical snafu. So they go outside and burst in again after instructing one of the nurses in the clinic to “be as mad as you feel like being.” It’s good TV.

We see Franklin engaging in an “ambush” interview, cornering a doctor on a fire escape, with the news camera rolling. In the Galloway trial, embarrassing “60 Minutes” outtakes showed Rather aggressively confronting a pedestrian who he mistakenly thought was connected to the auto insurance fraud.

“Reckless Disregard” also shows Franklin glowering at a TV camera and uttering an obscenity when a TV reporter ambushes him on the street after a day in court, just as Rather blew up at a TV reporter who was bugging him during the Galloway trial.

It’s excessive to suggest that all of the media were on trial in the Galloway and Westmoreland trials or that those cases were necessarily representative of TV news. Nevertheless, both trials exposed the public to at least some of the TV news process--showing in testimony, for example, that star reporters and anchors are often used to front stories about which they have little knowledge.

“Reckless Disregard” does the same. Before the “Hourglass Magazine” trial, Franklin asks to be filled in on the Lucas story that he reported on TV “because I was in and out of there so fast.” Lucas is destroyed and Franklin can’t even remember the story.

The result in the Lucas case is inevitable, of course, for, like Galloway, Lucas can show only that he was wronged, not that he was wronged with “reckless disregard for the truth.”

“Hourglass Magazine” is guilty only of arrogance and stupidity.

Galloway’s counsel also was an obscure but resourceful attorney facing long odds. In unsuccessfully appealing the verdict against Galloway, he argued that the “reckless disregard” burden should not have applied in this case because Galloway was not a public figure.

It seems almost that Galloway took a fall for a principle.

Libel actions are extremely tough to win, and rightly so. Libel law is based on the assumption that a free press will sometimes act irresponsibly, yet better that than a shackled press that is as straight as an arrow.

Better the Dumb Defense than no defense.