After more than two years of costly legal skirmishing, and 18 weeks of trial, Gen. William C. Westmoreland last February abruptly dropped his $120-million libel suit against CBS. But the impact of the case still lingers.
Former CBS News President Richard S. Salant, for one, says he suspects that no matter what sounds of "bravado" about strong news documentaries come from his friends at CBS News, "you won't see anything that's going to get them in trouble for quite some time."
He made the comment Thursday night after noting that although some feel that a large, wealthy news organization tends to become careless or irresponsible, "my own experience (at CBS) is different. The larger they become the more nervous they get."
He spoke during an Academy of Television Arts and Sciences symposium on the Westmoreland case in particular, libel in general and ways of resolving complaints of journalistic unfairness without court battles.
The consensus of the panelists, save one participant, was was that the current system of court suits is unsatisfactory for either side in a libel case. The exception was CBS attorney George Vradenberg III, who said he likes the system. Salant, who retired from CBS in 1979, three years before Westmoreland filed his suit over a disputed Vietnam documentary, once headed the now-defunct National News Council, formed 11 years ago to study complaints of news media unfairness and inaccuracy.
He said an organization like the council--which folded last year of what he called "neglect" by many news organizations--still is needed. Although the press has grown increasingly responsible in recent years, he said, it still is "arrogant. . . . We close our ears and our doors and we don't give them (complainers) a hearing."
The symposium, moderated by Ellie Abel, a former NBC correspondent who now teaches journalism, included Marc A. Franklin, a Stanford University expert in libel law, and Frank McCullough, retired executive editor of the McClatchy newspaper chain.
Also present: Dan Burt, Westmoreland's feisty attorney in the lawsuit and president of the nonprofit, pro-business Capital Legal Foundation in Washington.
Predictably, Burt and Vradenberg--the latter a key member of CBS' legal team in the Westmoreland case--verbally jousted again. Vradenberg still defended "The Uncounted Enemy: A Vietnam Deception," the 1982 documentary that caused Westmoreland's suit, and Burt still assailed it as an unfair, inaccurate program.
"Absolutely," Burt said when asked if he'd take the same action today as he did in 1982. When an organization like CBS "takes a shot at you," he said, "you have to hit back. . . . There was no other way that we could see to do that."
"Absolutely," said Vradenberg when asked if he'd tell CBS it was all right to air the documentary "as is" were the program scheduled for its first broadcast.
However, in retrospect, he said, "I think there could have been words and phrases (in the program) changed, which might have avoided the extraordinary attention paid to one particular word, the word 'conspiracy.' "
Westmoreland contended that the program libeled him by saying his command in Vietnam participated in a "conspiracy" to underestimate enemy strength, to give the impression the United States was winning the war in 1967.
An internal CBS study of "Uncounted Enemy," conducted by veteran CBS producer Burton Benjamin and sparked by a sharply critical TV Guide article, said that the use of the word conspiracy was not proven, given the accepted definition of the word.
(Benjamin's report didn't challenge the program's premise, but found several violations of CBS News guidelines in the production of the program and that "there was an imbalance in presenting both sides of the issue" raised by the documentary.)
Had CBS voluntarily made public the full Benjamin report, Burt said, "there never would have been a lawsuit," an assertion that Vradenberg disputed.
The Westmoreland-CBS suit and trial ran up a total legal bill estimated at least $9 million.
Westmoreland dropped the suit after CBS agreed to say that it never believed that the general "was unpatriotic or disloyal in performing his duties as he saw them." He called the statement the "apology" he'd sought. CBS denied that it had made any apology.
At Thursday's session, legal expert Franklin, speaking generally of libel suits, agreed with the feeling that today's juries tend to make larger awards when they find for the plaintiffs. But he said that juries are also doing that with other civil cases, citing medical malpractice suits as a prime example.
And, he said, while juries are getting tougher on defendants in libel trials, appeals of their verdicts are running heavily in favor of news organizations, which he said are winning 70% of their appeals compared to a verdict-reversal rate of 20% in other civil cases.
McCullough, former assistant managing editor of the Los Angeles Times, said he doubted that the threat of libel suits has had a "chilling effect" per se on editors. But at smaller newspapers, the prospect of "diversion of resources"--time, money and staff tied down fighting a suit--does have an impact.
The smaller the news organization "the more powerful effect of that diversion of resources, and therefore there is a chilling effect," he said.
Vradenberg, when asked what CBS had learned from the Westmoreland case, said "we learned a recommitment to fairness. I think we relearned, above and beyond that, the way to get fairness and accuracy is by adherence to some very simple procedural rules" at CBS News.
He said that while there were "errors of a procedural nature" in the network's controversial documentary, the program's substance was sound "and we'd do that broadcast again today."
Salant seemed somewhat incredulous at Vradenberg's remarks. "I have just heard that the broadcast has no flaws, but there is a recommitment to accuracy and fairness and the (news broadcast) standards which I spent four years establishing," he said.
Thursday's two-hour forum, held at the 500-seat Directors Guild of America Theater in Hollywood, was only attended by about 80 persons.