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In 1964 the Supreme Court gave sweeping protection to the press in New York Times vs. Sullivan. To "encourage robust debate," the high court so broadened the definition of libel that journalists were given license to say almost anything they wanted about public officials (but not about private citizens). In order to sue successfully for libel, a public official had to prove "actual malice," which the court defined as reporting that was known to be false or showed a "reckless disregard" for the truth. In the wake of the Sullivan decision, judges initially threw out cases involving public figures before they got to a jury, reasoning that the plaintiff could never prove actual malice. Lately, however, judges have been more willing to let juries decide; out of sympathy for the plaintiffs and sometimes out of hostility to the press, juries have shown a willingness to give plaintiffs huge damage awards. These decisions are often reversed by the trial judge or on appeal, but the trials, win or lose, are terribly expensive to the press.
Westmoreland's case is being handled by Dan Burt of the Capital Legal Foundation, which finances its activities through donations from major conservative foundations. CBS is being represented by David Boies, a partner in the prestigious New York City law firm of Cravath, Swaine & Moore. Both sides have spent more than $5 million preparing for the trial. Together they have examined more than 200,000 pages of Government documents, reviewed more than 50,000 pages of CBS's notes and files, and deposed more than 50 witnesses (Westmoreland's testimony encompasses 2,000 pages, and Reporter Mike Wallace's takes 554).
Boies' 450-page brief for CBS cites testimony from officials ranging from former Defense Secretary Robert McNamara to CIA operatives who served in Viet Nam. Their testimony, Boies contends, shows that the manipulation of enemy-troop assessments did occur. On the First Amendment issue, he argues that far from exhibiting "reckless disregard" for the truth, CBS interviewed more than 80 people for the report. Finally, he contends that the press should have "absolute immunity" from libel suits by public officials.
Last month Judge Leval rejected CBS's plea for total immunity and sent the case to the jury. Leval agreed that Westmoreland could not prove recklessness by CBS, since 60 Minutes had interviewed so many people. But the judge ruled that if, as Westmoreland claims, CBS edited tapes to twist quotes out of context and ignored facts that conflicted with its conclusions, then CBS could be held liable for knowing disregard of the truth.