"Reckless Disregard", by Renata Adler

Adler brings her considerable analytical powers to bear on two major libel trials of our time--Sharon v. Time and Westmoreland v. CBS. The Sharon case stemmed from a Time magazine article portraying Sharon as encouraging the 1982 massacre of Palestinian civilians. The Westmoreland case stemmed from a 1982 CBS documentary titled "The Uncounted Enemy: A Vietnam Deception".

As it happened, both trials took place simultaneously in different federal courtrooms in New York City in late 1984 and early 1985. Adler is uniquely qualified to provide the analysis of these two cases, as she is a graduate of Yale Law School as well as a trained journalist.

One of Adler's main points is that the way the media portrayed the results of these trials is totally inadequate and misleading. The story we got from the media is that both cases were a huge victory for the First Amendment rights of free speech and a free press, but Adler has a different take.

When Westmoreland decided, at a time when the trial was almost over and ready to go to the jury, that he would dismiss his case against CBS, it was reported that his change of heart was due to the testimony of his two underlings which supported CBS's position. Adler says that the testimony of these two witnesses was no surprise, as they had both given depositions prior to trial setting out their positions in detail on falsification of enemy troop numbers, and the CBS lawyer even read from the depositions in his opening statement to the jury.

The real situation is that the Westmoreland camp was simply exhausted and ready for the case to end. Westmoreland had a 70-year-old lawyer who had never tried a jury case before, and who was trying the case for free. Westmoreland had vowed to give whatever he might get from the case to charity, so it was never about money. The two sides issued a joint statement announcing their mutual respect for each other, and that was that.

The Sharon case actually did go to the jury, and, in answer to a series of questions, the jury found first that Sharon had been defamed, and second, that the publication complained of was false, bringing the jury to the third issue: was Time guilty of malice in the publication, malice being defined as knowing the publication was false, having a reckless disregard for its truth or falsity, or having serious doubts as to its truth or falsity. On this, the jury found that Time lacked malice, so, under the standards for public figures announced by the Supreme Court in the 1964 case of Times v. Sullivan, Sharon could not collect.

This was viewed as a win for Time, but Adler shows that what was revealed at the trial showed a shocking lack of professionalism by Time and its reporting staff. Adler says that both cases show huge problems with the stories which generated the lawsuits, as well as huge problems with how the media organizations involved handled the aftermath of the stories. With Sharon, she says Time could have simply printed an apology and retraction and that would have avoided any legal action. But Time decided to "stand by its story", despite the source of the story being an unreliable reporter who had been disciplined before, and who cited anonymous sources for his false report that Sharon had encouraged revenge against a group which was involved in an assassination.

Similarly, CBS also "stood by its story", instead of undertaking a detailed investigation and correcting the shoddy reporting which led to the offensive broadcast Westmoreland complained of. Adler says that a Supreme Court decision after Sullivan expanded the notion of "malice" to include the news organization publishing something for which it had "serious doubts" as to the truth or falsity. What this does is to discourage the kind of analysis and self-examination which a responsible news organization should be doing constantly. She says a good reporter will always entertain "serious doubts" about a story which is not adequately nailed down with good, reliable sources. But now the law discourages this.

Adler asserts that the lawyers for the media, which was the Cravath law firm in both cases, unnecessarily drug out the trial by trying to litigate the truth or falsity of the publications at issue. She says all this did was unnecessarily prolong the trials, and that a better approach would have been to litigate the lack of malice, which would be a complete defense. What occurred was that when the reporting staff of the publications were asked at trial what checking they did after the fact in response to the complaints, they said it "was in the hands of the lawyers"; i.e., it was up to the lawyers at that point to look into the situation, and the reporters and editors washed their hands of it.

The bottom line was that, in the Sharon case, the jury felt that Time had been quite negligent and careless in its reporting, but that it didn't rise to the level of "reckless disregard", which under the applicable standard had to be shown by "clear and convincing evidence".

Added to the problems and delays in these cases is the convoluted way in which most of the reporters and editors testified. They would repeatedly try to argue with the lawyer asking the questions, instead of simply answering the questions. Oftentimes questions would have to be asked numerous times, before any kind of actual answer would be forthcoming.

Adler is a well-regarded media critic, and she is acting as such in this book. The fact is that both of these plaintiffs were well-known public figures, meaning they had a public platform which they could have used to contradict and correct the stories they complained of.  This would have been far preferable to resorting to the courts, an approach which benefited only the defense lawyers.

There was a particular problem with Westmoreland's case, in that the broadcast complained of never mentioned Westmoreland by name. Rather, the broadcast referred to a conspiracy to falsify enemy troop estimates which took place at the "highest levels of the U.S. military intelligence community". Westmoreland was not a part of the "U.S. military intelligence community". He should have ignored the broadcast, rather than putting himself and many others through the ordeal of a long legal trial.