RISKS IN LITIGATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00552R000707150035-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 22, 2016
• Document Release Date: August 13, 2010
• Sequence Number: 35
• Publication Date: February 19, 1985
• Content Type: OPEN SOURCE

Approved For Release 2010/08/13: CIA-RDP90-00552R000707150035-5
NEW YORK TIMES
19 February. 1985
Risks in Litigation
The Westmoreland and Sharon Cases,
Show Cost on Both Sides May Be High
In some ways, the course of General
William C. Westmoreland's battle
against CBS, which concluded Sunday
when his $120-million libel suit against
the network was withdrawn ,,paralleled
the tortured path of the war with which
he is so closely identified.
At the Federal District
News Courthouse in Manhattan
Analysis as in Southeast Asia, Gen-
eral Westmoreland waged
ive time-con-
By DAVID MARGOLICH
As the Westmoreland case came to General Westmoreland's lawyer,
its abrupt end, two and a half years Dan Burt of the conservative Capitol
after it was first filed and 18^ weeks Legal Foundation, denied-that the fact
after it went to trial, it left many ques- that the foundation is now $500,000 in
tions hanging. debt played a part in the decision to set-
Among them: Given its politically tle.
charged nature, should the case have Mr. Blasi speculated that the deci-
gone to court in the first place? Why did sion may have been a belated reaction
the parties "opt out now rather than to the prospect that Judge Leval - like
await the jury's verdict? And what, if Judge Abraham D. Sofaer, who
anything, should be done to make libel presided over the Sharon case - may
actions less costly, so that newspapers have asked the jury to rule separately
an ' and broadcasters with fewer resources
versary, battle whose against strength a he may powerful ad have- than Time or CBS can defend them-
underestimated. selves?
d At first blush, the Sharon and West-
Coming so soon after the very differ-
ent outcome in Ariel Sharon's libel suit moreland:cases, which were heard si-
against Time magazine, the Westmore. multaneously -six floors apart at the
land withdrawal from the CBS libel suit Federal. courthouse on Foley Square,
was seen as a gain for the media, al- had much in common. Each pitted a
military man against a media giant:
t.
h
t with-It a high price
oun
no
.
ne
to
sustained two years of intense public
criticism as well as enormous financial
costs," said Floyd Abrams, a.specialist
on press law. "Large libel suits 'are
really death grips in which parties
clutch each other for months if not
years, at enormous pain and expense to
both of them."
"Libel plaintiffs will be reminded of
something they may have forgotten:
that someone who brings a libel suit
may suffer a shattering loss of reputa-
each-focused on purpoFteQ mLscanaucl -e---- -- -
during a far-qff, unpopular war. lawyers, Cravath, waive & Moore,
The similarities stop, however, when maintained all along: that, as joint
statement issued by the parties stated,
one considers the charges the two men the ?cep of public opinion," and not a
attempted to refor Mr. Sharon, it court of law, was the appropriate
consisted of one e specific statement: forum for the dispute.
that an Israeli commission had found
he played,a role in the 1982 massacre of . One of the ironies of current libel law
Palestinian civilians in Lebanon. i is that while it is extremely difficult
Tig-
This he managed to do. And although. under the Sullivan rule for a public
he ultimately failed to prove that Time ure to win a libel action, it is relatively
had lied or acted recklessly - a'show- -easy to get a case to the jury. This, both
ing required, under the United States -;Mr. Blasi and Mr. Abrams said, was a
Supreme Court's landmark libel ruling ula. for inefficiency- one that
in New. York -Mmes' v. Sullivan - a could be''corrected were the courts
public -unconcerned with legal' nicetles freer. to dismiss 'libel cases prior to
deemed himthe Victor in the can. Gen- trial.
eral Westmoreland, however, - was Five years ago, however, in the fa-
faced with the far more difficult task of mous "Footnote 9" of Hutchinson v.
refuting an entir8''bistorical thesis: { Proxmire, Chief Justice Warren
that he conspired to mislead American Burger wrote that given the complex
leaders on enemy troop strength in question of state of mind involved in
Vietnam. it was an area where evi- such libel actions, the cases were best
dence was contradictory, where fact tried.
and opinion were intermingled. . A Stanford'-Law School professor,
In the end, he not only failed to con- Marc Franklin, suggested that news
dude his case, but publicized even organizations could fend off libel ac-
more widely the accusations of which bons altogether by granting aggrieved
rsons a chance to reply - albeit
tion arising out of the litigation itself,")
said Mr. Abrams. "We haven't heard
so much about that recently."
Professor Vincent Blasi, a specialist,
in constitutional law at Columbia Law
School, noted another cor ideration.
"This case resurrects the most impor-
tant deterrent to libel actions:,the fear
that the defendant will make his case
more effectively, more hurtfully, more
credibly at trial than in print or on the
air."
"Recently," he continued, "there's
been a kind of promiscuity in bringing
libel suits, based on a feeling that even
if the evidence was fairly flimsy or if
the verdict were eventually over- -- Thee was genuine puzzlement yes-
turned, the lawsuit had a certain pub- terday over the timing of General'
licity value. This case ought to be tern- Westmoreland's decision, particularly
bly sobering in that regard." since the recent, damaging testimony
Still, for CBS the experience was not against him - by General Joseph A.
without its costs. The network paid mil- L McChristian and Col. Gains Hawkins-
lions of dollars to vindicate itself, a pro- could not have been much of a surprise.
cess in which its news-gathering proce- I Both had made similar statements on
dures and the news-gatherers them- L the original CBS broadcast.
selves were bared and scrutinized as
never before.
on the questions of truthfulness, defa-
mation and malice.
General Westmoreland, he said, may
simply have been unwilling to let a
panel of his peers ratify CBS's thesis.
"He may have felt he'd really have
egg on his face if a jury ruled against
him on falsity," Mr. Blasi said.
In the end, General Westmoreland
m
som[
that CBS-and its
earlier and less begrudiugly, he said,
than CBS did with General Westmore-
land. '
"Not everyone who comes in off the
street should be given equal time, but',
the proper treatment in cases where
truth and falsity are murky and there is
a morass of contradictory testimony is
to let the plaintiff state his percep-
tions,". he said. "This was a case for
more free speech, not for a lawsuit."
Approved For Release 2010/08/13: CIA-RDP90-00552R000707150035-5