Appendix — Herbert v. Lando

85-1685 [smnanis |

FILED

ye a | APR 15 1986

JOSEFH F. SPANIOL, JR.

CLERK

IN THE

Supreme Cont of ther united States

OCTOBER TERM, 1985

ANTHONY HERBERT,

Petitioner,

v.

BARRY LANDO, MIKE WALLACE,

COLUMBIA BROADCASTING SYSTEM, INC., and

ATLANTIC MONTHLY COMPANY,

Respondents.

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

——_ -_-—_—-

DANIEL J. POPEO *

MICHAEL P. MCDONALD

AMERICAN LEGAL FOUNDATION

1705 N Street, N.W.

Suite 300

Washington, D.C. 20036

(202) 857-0400

April 15, 1986 * Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

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A. Opinion And Order Of The United States Court

Of Appeals For The Second Circuit .................... la-27a

B.

Opinion Of The United States District Court,

S.D. New York (On Motions For Summary

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Opinion Of The United States District Court,

S.D. New York (On Motions For Reargu-

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APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Nos. 569, 570, Docket 85-7014, 85-7466

ANTHONY HERBERT,

Plaintiff-A ppellant-Cross-A ppellee,

V.

BARRY LANDO, MIKE WALLACE,

COLUMBIA BROADCASTING SYSTEM, INC.,

Defendants-A ppellees-C.-oss-A ppellants,

ATLANTIC MONTHLY COMPANY,

Defendant-A ppellee.

Argued Dec. 12, 1985

Decided Jan. 15, 1986

Before KAUFMAN, TIMBERS and NEWMAN, Cir-

cuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The First Amendment embodies one/of our nation’s

strongest ideals, but in practice the principle itself has

been subject to constant, unyielding attack. In media

defamation law, there have been relentless demands for

redress when the media appears to have exceeded the

2a

bounds of propriety. So it is that our courts, sensing

that shackles on the press might be more easily imposed

than lifted, have repeatedly refused demands that they

restrict the scope of the First Amendment guarantees

of free speech and a free press.

The Supreme Court recognized this principle and gave

it the force of law in New York Times v. Sullivan, 376

U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This

frequently cited case established the principle that a

public official could not successfully sue a publisher for

defamation unless it was published with “actual malice”

—that is, knowing falsity or reckless disregard for truth

or falsity. Later decisions emphasized that the rights of

a free press, “while lodged in the reporter and his pub-

lisher, in reality reflect an underlying interest of the

public,” Bruno & Stillman, Inc. v. Globe Newspaper Co.,

633 F.2d 588, 595 n.12 (1st Cir. 1980), and acknowledged

that “the First Amendment requires that we protect some

falsehood in order to protect speech that matters.” Gertz

v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997,

3007, 41 L.Ed.2d 789 (1974).

I. BACKGROUND

With these principles in mind, we confront for the

second time in a decade this defamation action brought

by Colonel Anthony Herbert against Columbia Broad-

casting Systems (“CBS”), producer Barry Lando, cor-

respondent Mike Wallace, and the Atlantic Monthly. The

prolonged and bitterly contested proceedings have come

to a temporary halt upon the granting of partial sum-

mary judgment for the defendants and a complete dis-

missal of the action against the Atlantic Monthly, in a

thoroughly reasoned and scholarly opinion by Judge

Haight. Herbert appeals the dismissal and the granting

of partial summary judgment. Lando, Wallace and CBS

cross-appeal the denial of summary judgment on two

alleged false and malicious statements.

3a

The underlying facts of this case have been thoroughly

explored by the courts on several previous occasions. See

- Herbert v. Lando, 568 F.2d 974 (2d Cir. 1977), rev’d,

441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979);

Herbert v. Lando, 596 F.Supp. 1178 (S.D.N.Y. 1984) ;

Herbert v. Lando, 73 F.R.D. 387 (S.D.N.Y. 1977). Be

cause our evaluation of the propriety of the district

court’s actions depends heavily on the facts, however, we

once again recite the necessary, but briefer. history of

the case and its procedural background. We .are for-

tunate in having Judge Haight’s meticulous exegesis of

this litigation already set forth in his fine opinion, thus

avoiding the need for a detailed explication of the facts.

This action was brought by Anthony Herbert, a retired

Army officer who charged that he was relieved of com-

mand in Vietnam because he reported to his superiors

war crimes and atrocities committed under the super-

vision of U.S. military personnel. Herbert, a highly

decorated soldier who also had served in Korea, was on

duty in Vietnam from September, 1968 to July, 1969.

Between February 6 and April 4, 1969, Herbert com-

manded the 2d battalion of the 173rd Airborne Brigade.

His superiors were General John Barnes, commander of

the brigade, and Colonel J. Ross Franklin, deputy com-

mander of the brigade.

On April 4, 1969, Barnes relieved Herbert of his com-

mand of the 2d battalion and reassigned him to the

Capital Military Assistance Command in Saigon. Herbert

protested his relief from command, claiming it was with-

out justification. In Saigon, he initiated a proceeding

pursuant to Article 1388 of the Uniform Code of Military

Justice, 10 U.S.C. § 938, but was denied redress by a

military board. Soon thereafter, Herbert was transferred

back to the United States. On September 28, 1969—

seventeen months after his relief from command—he filed

formal charges with the Fort McPherson Inspector Gen-

eral’s Office. Herbert alleged the 173rd Airborne Brigade

4a

had committed war crimes and atrocities, but that when

he reported the war crimes to Barnes and Franklin, they

failed to investigate the incidents. Herbert also claimed

Barnes then relieved him of command because he had

made the charges. The Army’s Criminal Investigation

Department launched three investigations into Herbert’s

allegations, but eventually exonerated Barnes and Frank-

lin of all charges.

After Herbert retired from the Army, the urge to write

about his experiences prompted him to produce a book

titled Soldier. New York Times reporter James Wooten

collaborated. The book recounted Herbert’s experiences in

the military, including his attempt to report war crimes

and his subsequent treatment by the Army. In the wake

of the My Lai trials, media attention quickly focused on

Herbert, who continued to press his accusations against

the Army whule publicizing his book on radio and tele-

vision programs. Among his numerous appearances was

one on the “The Dick Cavett Show,” whose viewing

audience generally was considered to be highly intelligent.

During the Army investigation of Herbert’s charges,

Barry Lando, then a writer for CBS, interviewed Herbert.

He was impressed by Herbert’s story and believed in his

sincerity. Indeed, CBS broadcast a portion of the inter-

view on its Weekend News program. Moreover, after the

Army had cleared Barnes and Franklin of Herbert’s

charges, Lando continued to interview Herbert and in his

new position as a producer for “60 Minutes,” suggested

to CBS correpondent Mike Wallace that “60 Minutes”

offer a favorable presentation on Herbert and his charges.

Wallace, who was skeptical about some of Herbert’s

claims, told Lando he was reluctant to present Herbert’s

stcry. Instead, he suggested that Lando seek additional

information.

Lando’s subsequent investigation entailed interviews

with more than 120 people and the examination of

5a

thousands of documents. For the most part, the Army

cooperated with Lando’s inquiries, but it refused to re-

lease its files on the investigations of Barnes and Franklin

that had been prompted by Herbert’s charges. Lando’s

further investigation, however, and his frequent con-

ferences with Wallace, eventually convinced Lando that

the Army had not relieved Herbert of command in Viet-

nam because of his purported attempt to report war

crimes.

Based on Lando’s disbelief in Herbert’s story, Wallace

agreed to broadcast a segment on “60 Minutes” casting

doubt on the validity of Herbert’s charges. The program

was aired on February 4, 1973. Following the format of

the “60 Minutes” presentation, “The Selling of Col.

Herbert” was one of three segments broadcast that eve-

ning. In his introduction, Mike Wallace reviewed Her-

bert’s charges as they had become known to the public

through the media and Herbert’s book Soldier. He then

stated: “ “60 Minutes’ set out to investigate the validity

of Herbert’s allegations. . . . Here is our report.” The

program included film clips of Herbert’s appearance on

the “Dick Cavett Show,” as well as portions of filmed

interviews conducted by Wallace or Lando. In the course

of the presentation, both Barnes and Franklin denied ever

having received reports from Herbert about war crimes

and atrocities. Moreover, individuals cited by Herbert in

his book as supporting his story denied the accuracy of

Herbert’s charges. Some went even further, stating that

Herbert himself could be capable of certain acts of bru-

tality. Wallace concluded the program with this comment:

“The Army could indeed help to resolve the controversy.

They could open their files to a public airing. They could

make themselves available for questioning about the whole

Herbert business. But they won’t. . . . Perhaps the best

way to stop all speculation is to do what you heard

Anthony Herbert and General Barnes suggest a moment

ago: make the Army investigations public.”

6a

After the “60 Minutes” program was televised, Lando

wrote about his investigation into Herbert’s charges. He

sold the article to the Atlantic Monthly. The editors added

a preface, or “streamer,” which summarized Lando’s in-

volvement with the Herbert case leading to the “60

Minutes” broadcast. In addition, the editors collaborated

with Lando in creating a conclusion that was critical not

only of Herbert, but also of the press for accepting

Herbert’s charges against the Army at face value. The

last two lines read: “The press, which long had been

negligent about dealing with the question of American

war crimes, found in Herbert a heroic figure, a martyr

through whom to dramatize the issue. But we bought

ourselves a martyr with feet of clay.” Illustrating the

article were design graphics of five silhouettes of a

soldier, appearing as targets on a firing range. As the

article progressed, the silhouettes became increasingly

riddled with bullet holes. The article was published in

the May, 1973 issue of Atlantic Monthly under the title,

“The Herbert Affair.”

On January 25, 1974, Herbert filed an action for

defamation against CBS, Lando, Wallace and the Atlantic

Monthly. The defendants cooperated in the discovery pro-

ceedings for over one year, but finally objected to answer-

ing questions concerning the “editorial processes” involved

in producing the broadcast and t..2 article. Specifically,

Herbert had sought information regarding Lando’s state

of mind while he was researching Herbert’s claims, con-

versations that took place between Lando and Wallace,

and reasons behind Lando’s decisions ultimately to include

or exclude certain materials.

Judge Haight ruled Herbert had a right to discovery

in these areas. 73 F.R.D. 387 (S.D.N.Y.1977). This

Court reversed on the ground that editorial processes were

protected by the First Amendment. 568 F.2d 974 (2d

Cir.1977). The Supreme Court reversed, 441 U.S. 153,

99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), and discovery con-

tinued. In late September, 1982, when discovery was com-

Ta

plete, all defendants moved for summary judgment. In

his memorandum filed in opposition to summary judg-

ment, Herbert specified eleven statements appearing either

in the broadcast or the article which he claimed were

made with “actual malice” as defined in New York Times

v. Sullivan, supra. On October 10, 1984, Judge Haight

granted summary judgment for Atlantic Monthly and

partial summary judgment for the remaining defendants

with respect to nine of the eleven specific statements, find-

ing there was no evidence that these statements were

made with actual malice; he also denied summary judg-

ment with respect to two other statements. 596 F.Supp.

1178. Entry of judgment dismissing the suit against

Atlantic Monthly was ordered pursuant to Fed.R.Civ.P.

54(b).

Herbert moved for reargument, citing four additional

statements he claimed were actionable, and protesting

Judge Haight’s refusal to consider the “overall import” of

the publications as a basis for the defamation action.

The district court denied the motion. 603 F.Supp. 983.

On March 25, 1985, the remaining defendants-—CBS,

Lando, and Wallace—moved for dismissal of the two

statements the court hac deemed actionable. They claimed

these statements could not possibly harm Herbert’s repu-

tation beyond the damage already done by the “nonaction-

able” statements. The district court denied this motion,

and certified for appeal pursuant to 28 U.S.C. § 1292(b)

the ruling granting partial summary judgment to de-

fendants CBS, Lando and Wallace as to nine statements

and denying summary judgment to these defendants as

to the two remaining statements, the ruling denying

plaintiff reargument, and the ruling denying defendants’

renewed effort to dismiss the two remaining statements.

We granted leave to appeal the issues raised below by

orders dated June 6 and June 26, 1985.

8a

II. DISCUSSION

A. The Nine Nonactionable Statements

We begin our discussion by reviewing the nine specific

statements that Judge Haight found lacked any evidence

of actual malice. (Appendix)! Following a painstaking

analysis of the eleven statements specified by Herbert in

his memorandum opposing summary judgment, Judge

Haight held that in nine of the statements, Herbert had

failed to produce sufficient evidence for a jury to find

with convincing clarity that the statements were pub-

lished with actual malice.

At the outset, we note that the “convincing clarity”

standard for granting or denying summary judgment in

defamation actions continues to be the law of this Circuit.

Yiamouyiannis v. Consumers Union, 619 F.2d 932, 940

(2d Cir.1980) (“a judge in denying a defendant’s sum-

mary judgment motion must conclude that, based on the

evidence asserted in the plaintiff’s affidavits, ‘a reasonable

jury could find actual malice with convincing clarity’,”

’

quoting Nader v. deToledano, 408 A.2d 31, 50 (D.C.App.

1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62

L.Ed2d 761 (1980)) (emphasis in original).? Since

1 Herbert has conceded that he is a “limited purpose public

figure” within the meaning of New York Times v. Sullivan, supra,

and therefore he is required to show the defendants exercised

“actual malice’ in publishing the allegedly defamatory material.

596 F.Supp. at 1168. See Gertz v. Robert Welch, Inc., 418 U.S. 323,

94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ; Lerman v. Flynt Distributing

Co., Inc., 745 F.2d 123, 1386 (2d Cir. 1984).

We do not consider here the four additional statements raised by

Herbert for the first time in his motion for reargument. They

were untimely pursuant to the district court’s Civil Rule 3j (per-

mitting the moving party to submit only those issues it believes

the court overlooked).

2We acknowledge the District of Columbia Circuit reached a

different conclusion concerning the proper standard for summary

judgment in defamation actions in Liberty Lobby v. Anderson,

9a

discovery in this case is complete, we see no reason to

depart from the standard set forth in New York Times v.

Sullivan, supra, 876 U.S. at 285-86, 84 S.Ct. at 728-29

(jury verdict of liability reversed because “the proof

presented to show actual malice lacks the convincing

clarity which the constitutional standard demands”),

simply because the determination of no malice is made

on a motion for summary judgment rather than after a

trial.®

Having determined Judge Haight applied the proper

standard in granting summary judgment in a defama-

tion action, we need only review for error his holding

that the nine statements were not false or, in any event,

not made with actual malice. Statement (a) was Barnes’

response to Lando’s query whether Herbert had formally

every reported war crimes to him. Barnes stated, “He

himself never did to me. Absolutely not.” This portion

of the interview was broadcast on “60 Minutes.” State-

ment (b), also on the CBS broadcast, was a response by

Franklin to Wallace’s questions, in which Franklin stated,

746 F.2d 1563 (D.C.Cir. 1984), cert. granted, U.S. ——, 105

S.Ct. 2672, 86 L.Ed.2d 691 (1985). Judge Scalia wrote that a

judge in denying a libel defendant’s motion for summary judgment

must conclude that a reasonable jury could, on the basis of facts

taken in the light most favorable to the public figure, find actual

malice, but not that a reasonable jury could find actual malice

with convincing clarity. 746 F.2d 1570-72. Judge Scalia believed

the “convincing clarity’ requirement was incompatible with the

preliminary nature of summary judgment. Z/d. at 1571. See also

Hutchinson v. Proxmire, 443 U.S. 111 & n.9, 99 S.Ct. 2675 & n.9,

61 L.Ed.2d 411 (1979) (“proof of ‘actual malice’... does not

readily lend itself to summary disposition”). The Supreme Court

has granted certiorari and heard argument in Liberty Lobby.

3 The Supreme Court recently held that the presence of actual

malice is a question of law requiring an independent review of the

record by appellate courts. Bose Corp. v. Consumers Union of

United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

Bose, however, involved an appeal of a finding of liability after

the completion of a bench trial.

10a

“I had many conversations with Colonel Herbert, we

discussed many things but never war crimes.” With

respect to these statements, Judge Haight correctly noted

the evidence produced by Herbert in an attempt to demon-

state Lando should have known the statements were false

was not available to Lando at the time of the broadcast.

It is self-evident that information acquired after the

publication of defamatory material cannot be relevant to

the publisher’s state of mind of his alleged malice at the

time of publication. See Washington Post v. Keogh, 365

F.2d 965 (D.C.Cir.1966), cert. denied, 385 U.S. 1011, 87

S.Ct. 708, 17 L.Ed.2d 548 (1967). Judge Haight there-

fore correctly granted summary judgment for the de-

fendants on these statements.

Statement (c) asserts that of several men interviewed,

“none were certain that [Herbert] actually reported” war

crimes to Franklin and Barnes. Indeed, the interviews

reveal that two men who served under Herbert did back

Herbert’s story, but later recanted; another was “certain”

only that he had told Lando he believed Herbert had

reported war crimes to Franklin. Accordingly Judge

Haight properly found that statement (c) was literally

accurate.

Statements (d) and (e) concern Franklin’s where-

abouts on February 14, 1969, the day on which Herbert

claims he reported the massacre of Cu Loi civilians to

Franklin in Vietnam. Wallace stated in the broadcast

that Franklin was on leave in Hawaii with his wife, and

that the couple was registered at a hotel in Hawaii from

February 7 to late in the afternoon on February 14. As

additional evidence that Franklin was in Hawaii on the

14th, Wallace stated that Franklin wrote a check to the

hotel “for the exact amount of the final bill, down to the

last penny.” Herbert claims these statements reflect

factual inaccuracies—for example, the checkout bill at the

hotel was actually for $25 more than the amount of

lla

Colonel Franklin’s check, and there is some evidence that

either Colonel or Mrs. Franklin may have left Hawaii on

the 13th or early on the 14th—and that at the time of

the broadcast Lando was aware of this conflicting evi-

dence.

In affirming Judge Haight’s determination that these

statements were not made with actual malice, we must

emphasize our duty is to determine not whether the state-

ments are true or false, but whether the publisher was

aware that they were false or recklessly disregarded their

truth or falsity. New York Times v. Sullivan, supra. It

is equally important to note that recklessness, which

Herbert alleges existed here, is not measured by whether

a reasonable publisher would have published, but whether

the publisher in fact “entertained serious doubts” as to

“the truth of this publication.” See St. Amant v. Thomp-

son, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d

262 (1968). In light of the indeterminate evidence, we

have little difficulty agreeing with the district court that

Wallace’s statements lacked the requisite actual malice.

Statement (g) was made when Wallace confronted

Herbert with the fact that Herbert had “no documents

to show, not a piece of paper to show that you ever re-

ported a war crime to anybody prior to the time that the

My Lai trials were going on at Fort McPherson, Georgia.”

Judge Haight found that Herbert had admitted in an un-

aired portion of the interview that he had no such docu-

ments. In light of his own admission, Herbert stands on

weak ground when he argues th defendants published

the statement with actual malice.

Herbert also claims the defendants acted with actual

malice by publishing statement (h}, an account by Robert

Stemme, a special agent in Vietnam, that Herbert had

declined to intervene in the interrogation and beating of

a Viet Cong nurse. Herbert claims Stemme’s account of

the story differs from that of another agent, Fred Brown,

whom Lando also interviewed. Although minor details of

12a

the two versions do vary, the major facts in both accounts

—that Herbert was present during the beating and did

not attempt to stop it—are denied only by Herbert him-

self. Accordingly, the evidence is insufficient to show the

defendants harbored any malice in publishing these facts.

Statement (j) appeared in the Atlantic Monthly article,

and asserted: “It was only after Herbert had been trans-

ferred to Fort McPherson, Georgia, where the My Lai

trials were in full swing, that there is any solid indica-

tion he was thinking about reporting war crimes.” Judge

Haight ruled that “solid indication” was an expression

of opinion, not fact, in that it represented Lando’s evalua-

tion of the evidence. We do not believe, however, a rea-

sonable jury could find actual malice in light of the con-

siderable evidentiary support for Lando’s statement. It

is, therefore, unnecessary for us to decide whether the

assessment of evidence as “solid” is one of fact or opin-

ion. Indeed, we could imagine circumstances in which an

assertion that “no solid indication” exists might be so

deliberately misleading as to be actionable. Because we

are not faced with such a situation here, however, we

affirm the district court’s holding that this statement was

not actionable.

Finally, Herbert challenges statement (k) in the maya-

zine article, in which Lando wrote that New York Times

reporter Wooten had come to believe in “most of [Her-

bert’s} claims.” Wooten himself, however, admitted in

deposition that he “would not argue” with the passage

and did not find it inaccurate. In light of this testimony,

it would be testing the limits of imagination to suggest

that a reasonable jury could find with convincing clarity

that Lando wrote these words deliberately intending to

misrepresent Wooten’s state of mind about Herbert.

B. “Overall Impact”

Herbert also appeals Judge Haight’s refusal to con-

sider the “overall impact” of the “60 Minutes” broadcast

13a

and the Atlantic Monthly article as a separate actionable

basis for a defamation suit. Instead, Judge Haight held

that in response to a summary judgment motion, a defa-

mation plaintiff is obliged to specifically identify those

statements which he claims were made with actual malice.

596 F.Supp. at 1197. Herbert claims the overall impact

of the publications was defamatory and made with actual

malice, and he urges Judge Haight should have taken

into consideration the defamatory nature of the publica-

tions as a whole rather than only specific statements. We

disagree. For the following reasons we hold the “overall

impact” of the “60 Minutes” broadcast and the magazine

article does not in itself constitute a cause cf action.

- For purposes of this analysis we distinguish between

an overall defamatory impact, such as Herbert alleges

exists here, and a particular defamatory implication,

which in certain circumstances might be actionable. In

the latter instance, a combination of individual state-

ments which in themselves may not be defamatory might

lead the reader to draw an inference that is damaging

to the plaintiff. See, e.g., Church of Scientology of Cali-

forma v. Flynn, 744 F.2d 694 (9th Cir.1984) ; Cianci v.

New Times Publishing Co., 689 F.2d 54 (2d Cir.1980).*

This case presents a different situation. Here, the

defamatory “impact” of the publication is the same as

*If, for example, a newspaper accouni of a rash of neighborhood

thefts also reported that a public figure had recently moved into

the neighborhood, purchased tools commonly used in burglaries,

and had been seen near a number of homes where burglaries had

occurred, a reader would be led to believe that the individual de-

scribed had committed the crimes. Such a deductive inference

might well be actionable if there is proof the article was published

with actual malice. See Keeton, Defamation and Freedom of the

Press, 54 Tex.L.Rev. 1221, 1250-51 (1976); Note, Fact and Opinion

After Gertz v. Robert Welch, Inc.: The Evolution of a Privilege,

34 Rutgers L.Rev. 81, 100 (1981). While each individual statement

alone might be literally accurate, in the aggregate they give rise to

a false and defamatory inference.

14a

the defamatory implication conveyed by each of the indi-

vidual statements. That implication, as we shall later

see, is that Herbert lied about reporting war crimes to

his superiors in Vietnam and therefore must have been

relieved of command for other reasons. Examining each

of the specific statements Herbert claims.was made with

actual malice, however, we do not find a distinction be-

tween the defamatory meaning a viewer would derive

from the particular statements, and the supposedly larger

defamatory “impact”? Herbert insists is conveyed by the

publication as a whole.®

The CBS broadeast of Colonel Franklin’s denial of

Herbert’s charges, for example, corresponds exactly with

the program’s overall suggestion that Herbert lied about

reporting war crimes. Moreover, Lando’s article stated

that there was no “solid indication” that Herbert began

thinking about reporting war crimes until the My Lai

trials had begun. This statement strongly suggests Her-

bert was capitalizing on the nation’s concern about war

crimes to excuse his relief from command. Finally, CBS

related Stemme’s account of Herbert’s presence during

the beating of a Viet Cong nurse, leading the viewer to

conclude Herbert himself had condoned acts of brutality.

Herbert has properly identified the specific statements

that were allegedly made with actual malice. To permit

Herbert to rest a cause of action in this case on the

publication’s “overall impact” would be a meaningless

gesture, since the defamatory implications of the specific

5 Herbert contends the CBS broadcast and the magazine article

presented several defamatory allegations as a whole, including:

(1) Herbert lied about reporting war crimes to his military

superiors; (2) the publicity surrounding the My Lai massacre

prompted Herbert to invent his story, suggesting that Herbert

would use his country’s concern over war crimes as a means of ex-

plaining his relief from command; (3) Herbert condoned and

participated in brutal, violent and sadistic acts against the Viet-

namese population and prisoners, and (4) Herbert lied about his

experiences in his book Soldier.

154

statements and the overall impact of the publications are

identical.

C. Dismissal of Atlantic Monthly

Judge Haight granted summary judgment for Atlantic

Monthly and dismissed the complaint against the maga-

zine. We find his reasons for dismissal compelling. Our

independent review of the evidence for actual malice, as

required by the Supreme Court in Bose Corp. v. Consum-

ers Union of United States, Inc., 466 U.S. 485, 104 S.Ct.

1949, 80 L.Ed.2d 502 (1984), reveals to us no indication

the Atlantic Monthly exercised actual malice in publishing

Lando’s article.

The gravamen of Herbert’s claim is that the magazine,

by failing to further investigate the charges made by

Lando against Herbert, exercised actual malice by pub-

lishing an article it knew contained false statements, or

recklessly disregarded the possible falsity of the publica-

tion. We reiterate, however, that a finding of actual

malice cannot be predicated merely on a charge that a

reasonable publisher would have further investigated be-

fore publishing. St. Amant v. Thompson, supra, 390 U.S.

at 731, 88 S.Ct. at 1325. Rather, a public figure defama-

tion plaintiff must show either that the publisher actually

entertained serious doubts about the veracity of the publi-

cation, or that there are “obvious reasons to doubt the

veracity of the informant or the accuracy of his reports.”

Id. (emphasis added).

In light of this heavy burden of proof, the purported

evidence of actual malice cited by Herbert is unconvinc-

ing. Herbert claims, for example, that the editors were

aware that Lando had once expressed hostility to Her-

bert® and knowedge of this confrontation should have

6 After Wallace conducted a filmed interview of Herbert at CBS

studios in New York, an argument ensued between Herbert and

Lando during which Lando is alleged to have shouted, “I’ll get you”

and “I’ll destroy you.”

16a

raised “serious doubts” in their minds about the accuracy

of Lando’s article. In fact, however, the editors, alerted

to the existence of the hostile encounter between Herbert

and Lando, encouraged Lando to include a description

and explanation of the incident in his article, which

Lando did. These actions are indications of responsible

editorial behavior, not actual malice. See Food-Science

Corp. v. McGraw-Hill, 592 F.Supp. 262 (D.Vt. 1984).

Moreover, Lando’s animosity towards Herbert, while put-

ting the Atlantic on notice, does not in itself establish

the article was false or that the editors should have

known any part of it was false. Hotchner v. Castillo-

Puche, 551 F.2d 910 (2d Cir. 1977), cert. denied, 434

U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977).?

Herbert also cites as evidenee of actual malice the

magazine’s post-publication receipt of several documents

refuting Lando’s version of Herbert’s experiences. These

documents include a nine-page “bill of discrepancies” sub-

mitted to the Atlantic by Herbert’s literary agent, in a

form unsuitable for publication; a poorly written article

by a Tennessee reporter supporting Herbert’s story; and

two letters to the editor written by acquaintances of Her-

bert. The author of one letter claimed that Lando had

hung up the phone when he tried to support Herbert’s

account of events in the Middle East. The other letter

was critical of the way the Army treated Herbert when

it administered a lie detector test to him. From this evi-

dence, Herbert contends, a jury could infer reckless dis-

regard by Atlantic Monthly at the pre-publication stage.

We must reject Herbert’s argument. As we indicated

earlier, inaccuracies brought to the attention of the pub-

7 Particularly relevant to the state of mind of the Atlantic editors

in publishing the article was their knowledge that CBS had already

determined the substance of Lando’s report fit for publication.

Moreover, Atlantic Monthly had considerable reason to trust Lando’s

reliability as a reporter, having previously published an article

written by Lando, and having learned upon inquiry of his former

employer, Time magazine, that he had a respected reputation.

17a

lisher after publication are not relevant to the publisher’s

state of mind before publication. Rosenbloom v. Metro-

media, 403 U.S. 29, 55, 91 S.Ct. 1811, 1825, 29 L.Ed.2d

296 (1971); Gertz v. Robert Welch, Inc., 471 F.2d 801,

804 (7th Cir. 1972), rev’d on other grounds, 418 USS.

323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); McManus v.

Doubleday, 513 F.Supp. 13838, 1390 (S.D.N.Y. 1981).

Moreover, behavior such as the refusal to publish dissent-

ing points of view is not alone sufficient to support an

allegation of actual malice before publication. Properly

read, New York Times v. Sullivan does not support the

theory that a mere inference of actual malice, derived

from post-publication behavior, could defeat a motion for

summary judgment.®

Ill. CROSS-APPEAL

We now approach the most difficult question presented

to us on this appeal: Should Judge Haight have granted

summary judgment in favor of the defendants on the

two statements he found merited a trial? One appeared

in the Atlantic Monthly article, and the other was heard

on the “60 Minutes” telecast. On cross-appeal, the ap-

pellees argue that the district court erroneously denied

their motion for summary judgment on these two state-

ments. We agree that the remaining statements are not

actionable, and therefore remand to the district court

with instructions to enter an order granting summary

judgment to the defendants and dismissing the complaint.

8 Although it is not essential to our holding, we note the Atlantic

Monthly did publish two letters in its July, 1973 issue that were

generally critical of Lando’s article.

We do not agree with Herbert that the article’s graphics and

the prefatory “streamer” are sufficient manifestations of the maga-

zine’s endorsement of the article to render the Atlantic independ-

ently liable for the article’s content. Rather, we view the streamer

and graphics as little more than the minimal packaging required to

make the piece readable and attractive.

18a

The statement appearing in the Atlantic Monthly struck

at Herbert’s credibility with respect to a statement he

had made t« Lando:

Herbert had also claimed that one of the brigade’s

top enlisted men, Sergeant Major John Bittorie, .ad

been listening in an outer office when Herbert re-

ported to Colonel Franklin an incident of water tor-

ture. When the Army CID questioned him, Bittorie

denied Herbert’s claim. Herbert told me the reason

was that although Bittorie himself was retired, he

still had two sons in the service and had to worry

about their careers. But when I flew to Columbus,

Georgia, to interview Bittorie, he again denied hav-

ing overheard any such report. What about his sons

who are in the Army? I asked. He had no sons.

596 F.Supp. at 1212.

Herbert submitted an affidavit, executed by Bittorie,

attesting to the fact that he had informed Lando he was

the father of both a son and a daughter, and that when

Bittorie had spoken with Herbert the son was indeed

serving in the Army. Based on this evidence, Judge

Haight ruled a jury could find that Lando published his

statement with knowing falsity, and therefore held this

statement to be actionable.

The second statement was made by Mike Wallace in

the “60 Minutes” broadcast:

We have spoken with many men who saw Herbert

after his relief in Vietnam ... to a man they say

that Herbert never once said to them that he had

been relieved hecause he had tried to push war crimes

charges.

596 F.Supp. at 1217. As Judge Haight recognized, it is

clear from the context of the broadcast that Wallace was

focusing on whether Herbert had made his claim while

still in Vietnam.

19a

Herbert contended in the district court that three in-

dividuals had told Lando the precise opposite—that Her-

bert had in fact told them he was relieved because he

had tried to report war crimes. Judge Haight correctly

refused to consider the affidavits of two of these indi-

viduals, because Herbert spoke with them about his relief

from command only after he returned from Vietnam.

Judge Haight then found, however, that one individual—

a helicopter pilot named Kahila—claimed that in Vietnam

Herbert had told him that Herbert was relieved because

“of Army politicking resulting from his reporting the

Cu Loi killings... .” Viewing this affidavit as creating

an issue of credibility inappropriate for resolution on

summary judgment, Judge Haight ruled the statement

was actionable.

In urging this Court to reverse the district court hold-

ing related to the two remaining statements, appellees

rely on the incremental harm branch of the libel-proof

doctrine. This novel theory was first applied by Judge

Weinfeld in Simmons Ford, Inc. v. Consumers Union,

516 F.Supp. 742 (S.D.N.Y. 1981). See generally Note,

® The libel-proof doctrine was first introduced in this Circuit in

Cardillo v. Doubleday & Co., 518 F.2d 638 (2d Cir. 1975). Robert

Cardillo was a convicted figure in organized crime who sued Double-

day for publishing a book in which Cardillo was mentioned as hav-

ing participated in various criminal enterprises. The district court

granted summary judgment for the defendants and dismissed the

action, holding that Cardillo had not shown the existence of actual

malice under the New York Times v. Sullivan standard. On appeal,

Cardillo argued that the Supreme Court’s decision in Gertz v.

Robert Welch, Inc., handed down after the district court’s decision,

permitted the actual malice standard to be disregarded by state

libel law in cases involving neither public figures nor public officials.

This court found it unnecessary to address the question of New

York state lav because it determined Cardillo to be “libel-proof”—

that is, “so unlikely by virtue of his life as a habitual criminal to

be able to recover anything other than nominal damages as to

warrant dismissal of the case, involving as it does First Amend-

ment considerations.” 518 F.2d at 639.

20a

The Libel-Proof Plaintiff Doctrine, 98 Harv.L.Rev. 1909

(1985). In Simmons Ford, defendant’s magazine, a peri-

odical for consumers, published a critical evaluation of

plaintiff’s new electric car and rated it “Not Acceptable.”

The accompanying article enumerated a great many rea-

sons for the low rating, including poor acceleration, low

top speed, poor braking, poor handling, poor ride, poor

comfort and generally negative performance. The only

portion of the article challenged by plaintiff was a para-

graph asserting that the car did not meet federal safety

regulations. The regulations referred to in the article

set forth applicable standards for cars equipped with

passive restraints such as airbags. In fact, however, the

electric car was equipped with seatbelts, which were regu-

lated by a separate set of standards. The article, there-

fore, implied the car did not meet federal safety stand-

ards that in reality were inapplicable to the car. Judge

Weinfeld ruled there was ample basis in fact to justify

defendant’s conclusion that the car was “not acceptable,”

and further adverse comment about the car could not give

rise to more than nominal damages. Accordingly, he

granted summary judgment for the magazine.

This branch of the “libel-proof” doctrine thus measures

the incremental harm inflicted by the challenged state

ments beyond the harm imposed by the rest of the publi-

cation. If that harm is determined to be nominal or

nonexistent, the statements are dismissed as not action-

able. Simmons Ford, Inc. v. Consumers Union, supra;

see Bose Corp. v. Consumers Union of United States,

52S F.Supp. 357, 362 (D.Mass. 1981), rev’d on other

grounds, 692 F.2d 189 (1st Cir. 1982), aff'd, 466 U.S.

485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Sharon v.

Time, Inc., 575 F.Supp. 1162 (S.D.N.Y. 1983). Judge

Haight, however, declined to apply the “libel-proof” doc-

trine in this case because Herbert, unlike the plaintiff in

Simmons Ford, challenged not just one, but many state-

ments he believed were false and defamatory in the pub-

21a

lication. Because he believed that a plaintiff who could

not produce evidence of actual malice as to certain state-

ments was not necessarily conceding the truth of those

statements, Judge Haight deemed it inequitable to pre-

clude Herbert from producing evidence of actual malice

on the remaining statements before the trier of fact.

We believe, however, a reasoned and different ground

exists in this case for granting summary judgment on

the remaining two statements.’® To begin our analysis,

we return to the nine statements dismissed by Judge

Haight as nonactionable because their publication bore

no evidence of actuai malice. On the basis of these very

statements, we believe the appellees had ample grounds

to support their conclusion that Herbert had not reported

war crimes to his superiors in Vietnam, and therefore

must have been relieved of command for other reasons.

Reviewing the evidence presented in affidavits and deposi-

tions, we are led to conclude that CBS, Lando and Wallace

knew that both Barnes and Franklin denied having re-

ceived reports of war crimes from Herbert; that no one

could verify from personal knowledge Herbert’s insistence

that he reported war crimes to Barnes and Franklin;

and that the first substantiated accusations against his

superiors were made by Herbert seventeen months after

his relief from command, and after Herbert had returned

to the United States. In light of this evidence, the ap-

pellees could not be said to have had actual malice in

publishing their view that (1) Herbert lied about re-

porting war crimes to his superiors in Vietnam, and (2)

Herbert’s relief from command must therefore have been

for other reasons.

Having decided the appellees did not publish these

views with actual malice, we confront the question

whether Herbe:t should be allowed to base his defama-

10 Some may view our holding today as a variation of the “libel-

proof” doctrine, but we need not so characterize it.

22a

tion action solely on inaccuracies contained within state-

ments subsidiary to these larger views. The first state-

ment, which appeared in the magazine article, was defam-

atory only in that the incorrect assertion that “Bittorie

had no sons” implied that Bittorie was more credible

than Herbert had suggested. Accordingly, this implication

strengthened Lando’s portrayal of Herbert as a man who

lied about reporting war crimes to his superiors... We

have already agreed, however, that given the amount of

other evidence supporting this view, the appellees did not

publish this conclusion with actual malice. Because we

consider Herbert’s truthfulness in assessing Bittorie’s

credibility to be merely a subsidiary matter to the pri-

mary, non-actionable issue—whether Herbert lied about

reporting war crimes—we hold this statement as well to

be nonactionable.

The second statement, delivered by Mike Wallace on

“60 Minutes,” contained the assertion that “to a man,”

those who spoke with Wallace and his staff said that Her-

bert never told them in Vietnam that he had been re-

lieved for reporting war crimes. Admittedly, this state-

ment undermines Herbert’s credibility with respect to his

assertion that he reported war crimes. We have already

held, however, that the appellees did not have actual mal-

ice in publishing their view that Herbert was relieved

for reasons other than his allegations of war crimes.

The only potentially defamatory inference that could be

drawn from Wailace’s statement is that Herbert was re-

11 The chain of reasoning is somewhat elaborate. The statement

that Bittorie had no sons implied that Bittorie lacked the motive

(protection of his sons’ army careers) ascribed to him by Herbert

as Bittorie’s reason for not corroborating Herbert’s account of

reporting war crimes to Franklin. The fact that Bittorie had a son

was some evidence that Bittorie did have a motive to lie when he

denied overhearing Herbert report war crims to Franklin. If

Bittorie had a motive to lie, this was some evidence that Bittorie

was lying. If Bittorie was lying, this was some evidence that

Herbert had reported war crimes to Franklin.

23a

lieved from command for reasons other than reporting

war crimes. But we have already held this not to be

actionable.

We do not mean to imply by our holding that appellees

could have published with impunity a vast collection of

false statements so extensive as to portray Herbert as a

liar in every respect. Such a portrayal may well be ac-

tionable. Rather, we hold that if the appellees’ published

view that Herbert lied about reporting war crimes was

not actionable, other statements—even those that might

be found to have been published with actual malice—

should not be actionable if they merely imply the same

view, and are simply an outgrowth of and subsidiary

to those claims upon which it has been held there can be

no recovery. We do not intend by our holding to permit

defamation defendants to freely embellish their stories

with falsehoods while remaining free from liability. In

this case, however, the abundance of other evidence sup-

porting the appellees’ skepticism of Herbert’s story was

sufficient to justify the district court’s finding of no mal-

ice. Our holding is thus limited to those cases in which

statements allegedly made with knowing falsity or reck-

less disregard give rise to defamatory inferences that are

only supportive of inferences that are not actionable.”

For Herbert to base his defamation action on subsidiary

12 Judge Haight reckoned with the view we have expressed, but

concluded, with reference to the “Bittorie’s sons” statement, that

the statement was actionable because it had two implications: “se

particular one (Herbert did not report water torture to Franklin),

and a general one (Herbert tells lies).” 596 F.Supp. at 1213. Judge

Haight concluded that the latter implication rendered the state-

ment actionable. The reason we disagree is that the statement does

not imply that Herbert, in general, is a liar. It implies, at most,

that he told a lie in his effort to counter the claim that he had not

reported war crimes. We would have a very different case if a

statement, otherwise actionable, implied that Herbert was generally

a liar or even that he had lied on some significant matter unrelated

to the truth of statements determined not to be actionable.

24a

statements whose ultimate defamatory implications are

themselves not actionable, we believe would be a classic

case of the tail wagging the dog.

Our decision today calls for the granting of summary

judgment on the remaining two statements simply be-

cause their defamatory implictions are not actionable.

We therefore need not decide whether a court can grant

summary judgment on separate, unrelated statements,

which may have been made with actual malice, pursuant

to the incremental harm branch of the libel-proof doctrine.

We do not believe that Herbert has presented a claim

suitable for disposition at trial, and therefore the district

court should have granted summary judgment for all

defendants. Thus this protracted litigation, which has

been filed with anger, charges and countercharges in an

area of the law where emotions frequently obfuscate the

facts and law, has finally come to a close in this Court.

IV. CONCLUSION

Accordingly, the judgment of the district court is af-

firmed in part, reversed in part, and remanded with in-

structions that summary judgment be entered for de-

fendants and the complaint be dismissed.

25a

APPENDIX

In his papers opposing defendants’ motion for sum-

mary judgment, Herbert specified the following eleven

statements as having been made with actual malice:

(a) On the program, in answer to Lando’s question

to Barnes whether “Herbert ever formally or in-

formally reported any war crimes or atrocities” to

him, Barnes stated, “He himself never did to me.

Absolutely not.” Lando knew, however, that Herbert

had reported POW mistreatment at the An Khe

compound through his XO, Bethea, who immediately

conveyed the information to Barnes.

(b) On the program and in the article, in answer

to Wallace’s questions, Franklin stated that Herbert

“never” reported war crimes or atrocities of any

nature to him “In no way, either orally or in writ-

ing. I had many conversations with Colonel Herbert,

we discussed many things but never war crimes.”

Lando knew, however, that Herbert had discussed the

An Khe mistreatment with Franklin and that Frank-

lin conceded Herbert “possibly” discussed with him

mistreatment of the Vietnamese by American ad-

visors and ARVN forces.

(c) Wallace stated, “Several men serving under

Herbert said they had heard Herbert say, while in

Vietnam, that he had reported the February 14 kill-

ings, but none were certain that he had actually re

ported them.” In fact, both Lando and Wallace knew

that (1) not several, but many men while in Vietnam

heard Herbert say he had reported the Cu Loi kill-

ings; (2) many men heard, in addition, Herbert’s

warnings that war crimes and atrocities, like Cu Loi,

were absolutely prohibited; (3) several men had not

only heard Herbert say he had reported the February

14 murders but several men themselves heard or saw

26a

Herbert reporting the killings. (emphasis in origi-

nal).

(d) Wallace stated that Franklin’s check for his

Hawaii hotel room was “for the exact amount of the

hotel bill” (Pr.Tr. 6), while the article stated that

the check was made out “for the exact amount of

the final bill, down to the last penny” (Art. p. 77).

Both Lando and Wallace knew that Franklin’s check

was not for the “exact amount,” but $25 less than

the hotel’s final bill.

(e) On the program, Wallace stated: “checking

with the Ilikai Hotel in Hawaii, we found that

Colonel and Mrs. Franklin had indeed been registered

there from February 7 to late in the afternoon of

February 14 (Pr.Tr. 6) CBS knew that the Ilikai

records revealed that either Col. or Mrs. Franklin

left on February 13 or “early the 14th,” but not

which, and Lando considered it a “toss-up” as to

which was the case.

(f) Lando wrote Bittorie “had no sons” (Art. p.

78). In fact, as Lando was told by Bittorie, he had

a son.

(g) Wallace stated, “you have no documents to

show, not a piece of paper to show that you ever

reported a war crime to anybody prior to the time

that the My Lai trials were going on at Fort Mc-

Pherson, Georgia” (Pr.Tr. 7), while defendants knew

that Herbert’s report of the An Khe mistreatment,

the Arnold Report, and Boyer’s statement of Septem-

ber 10, 1969, were all “‘pieces of paper” which showed

Herbert reported a war crime to somebody prior to

the My Lai trials.

(h) Wallace stated that Stemme described Herbert

as present “as a Viet Cong nurse was being inter-

rogated by ARVN troops, being beaten by them to

27a

get her to talk” (Pr.Tr. 12). In fact, Lando knew

that was not what Stemme had told him.

(i) Wallace stated: “We have spoken with many

men who saw Herbert after his relief in Vietnam

. to a-man they say that Herbert never once

said to them that he had been relieved because he

had tried to push war crimes charges” (Pr.Tr. 9).

Lando had been told, in words or substance, the

exact opposite by at least three men whom he spoke

to whom [sic] had seen Herbert after his relief.

(}) The article stated: “It was only after Herbert

had been transferred to Fort McPherson, Georgia,

where the My Lai trials were in full swing, that

there is any solid indication he was thinking about

reporting war crimes” (Art. p. 79). Lando knew

from numerous people he spoke to that Herbert talked

in Vietnam about the war crimes and having reported

them and that he had been seen or heard talking

about the Cu Lois murders on the radio and at

Brigade headquarters.

(k) Lando wrote that Wooten has come to helieve

in “most of [Herbert’s] claims” (Art. p. 74) when

Wooten never limited his belief in Herbert.

28a

APPENDIX B

UNITED STATES DISTRICT COURT

S.D. NEW YORK

No. 74 Civ. 434-CSH

ANTHONY HERBERT,

‘ Plaintiff,

BARRY LANDO, MIKE WALLACE,

COLUMBIA BROADCASTING SYSTEM, INC.,

ATLANTIC MONTHLY COMPANY,

Defendants.

Oct. 10, 1984

As Amended Oct. 18, 1984

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

This is an action for defamation. Jurisdiction in this

Court is based upon diversity of citizenship. Following

extensive discovery, all defendants now move for sum-

mary judgment under Rule 56, F.R.Civ.P.

I.

Introduction

The Parties

Plaintiff Anthony Herbert is a retired Army officer

who had extended wartime service in Vietnam and who

received widespread media attention when he accused his

superior officers of covering up reports of atrocities and

29a

other war crimes, and of relieving him of his combat

command when he persisted in such reports.

Defendants Barry Lando, Mike Wallace, and Columbia

Broadcasting System, Inc. (“CBS”) were involved with

a television report on Herbert and his accusations which

CBS broadcast on February 4, 1973 as part of its weekly

“60 Minutes” program. Lando and Wallace were CBS

employees. Lando researched and produced the program

segment dealing with Herbert. Wallace narrated it, and

also participated in preliminary interviewing and editing.

Lando thereafter wrote an article relating to Herbert

which defendant Atlantic Monthly (“Atlantic Monthly’’)

published in its May, 1973 issue.

The Allegations of the Complaint

Herbert’s complaint contains two counts. Count One

alleges that the February 4, 1973 “60 Minutes” program

entitled “The Selling of Colonel Herbert” (hereinafter

“the program’) defamed him. The defendants in this

count are Lando, Wallace, and CBS. Count Two alleges

that Lando’s article appearing in the May, 1973 issue of

The Atlantic Monthly magazine entitled “The Herbert

Affair” (hereinafter “the article’) also defamed -him.

The defendants in Count Two are Lando ahd Atlantic

Monthly.

Specifically, Herbert alleges that the program and the

article defamed him in the following respects, as sum-

marized in plaintiff’s brief on the present motion at 2-3:

“4. Herbert is presented as not having reported war

crimes to his superior officers, Col. J. Ross Franklin

and Brig. Gen. John W. Barnes, while serving as

Commander, 2d Battalion with the 173d Airborne

Brigade in Vietnam, and thereby portrayed as a liar

and as one guilty of violating the very military laws

he accused his commanders of violating;

30a

“2. Herbert is presented as never mentioning war

crimes until My Lai became public, and thereby

portrayed as a liar who falsely used the country’s

concern over war crimes as a means of explaining

his own relief from command of the 2d Battalion of

the 173d;

“3. Herbert is presented as a man capable of brutal

acts and condoning brutality against the Vietnamese

population, detainees and prisoners, and thereby por-

trayed as a violent, sadistic and brutal man who vio-

lated the rules that were to govern his behavior as

a soldier and an officer and who hypocritically ac-

cused others of criminal behavior of which he was

guilty;

“4. Herbert is presented as a man who repeatedly

lied not only in his charges regarding war crimes and

command cover-up but also in his book Soldier con-

cerning a number of events, and thereby portrayed

as a liar and a fraud.”

The Asserted Defenses

Defendants Lando, Wallace and CBS assert four de-

fenses to the complaint. Wallace and CBS are concerned

only with the program. Lando, who produced the program

and wrote the Atlantic Monthly article, asserts the same

four defenses in respect of both.

The first defense asserted by these defendants is

premised upon New York Times Co. v. Sullivan, 376 U.S.

254, 848.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny.

While the defendants contend that the program and the

article are careful anc accurate reports of the Herbert

controversy, they also contend that in any event, no rea-

sonable jury could find that the defendants published with

actual malice. On this branch of their argument, defend-

ants assert ‘hat the pre-trial discovery and the additional

exhibits submitted with the motion demonstrate as a mat-

8la

ter of law that at trial, Herbert could not meet his

burden of showing by clear and convincing evidence that

the defendants had knowledge of falsity or acted with

reckless disregard for the truth. In these circumstances,

the argument concludes, summary judgment should now

be entered dismissing the complaint.

Secondly, these defendants contend that the program

and the article constitute protected reportage of a public

controversy about a public figure and public official. That

argument is premised primarily upen the Second Circuit’s

opinion in Edwards v. National Audubon Society, Inc.,

556 F.2d 113 (2d Cir.1977).

Third, these defendants contend that the program and

article constitute protected expressions of opinion about

a public figure and a public controversy.

Lastly, these defendants contend that the selection of

information for inclusion in the program and article was

a matter of editorial judgment as to which the courts

have no role.

Defendant Atlantic Monthly, as publisher of the article,

relies upon the first of these defenses, arising from the

principles declared in New York Times Co. v. Sullivan

and later cases.

History of the Litigation

Following filing of the complaint and joinder of issue,

extensive discovery ensued. A time came, however, when

the CBS defendants (Lando, Wallace and their corporate

employer) balked at giving discovery in respect of what

they termed their “editorial process.”

Specifically, Herbert sought to inquire into Lando’s

conclusions and state of mind during the course of his

research; conversations between Lando and Wallace about

matters to be included or excluded from the broadcast

publication; and Lando’s intentions as manifested by his

32a

decision to include or exclude certain material. This

Court held that Herbert was entitled to discovery in these

areas. 73 F.R.D. 387 (S.D.N.Y.1977). A divided panel

of the Second Circuit reversed. 568 F.2d 974 (2d Cir.

1977). The Supreme Court granted certiorari and re-

versed the Court of Appeals, reinstating this Court’s

judgment. 441 U.S. 158, 99 S.Ct. 1635, 60 L.Ed.2d 115

(1979). Thereafter considerable additional discovery took

place.

Upon completition of discovery these motions were filed.

No party suggests that additional discovery 1s required,

or even possible. The present record constitutes the record

that would be made at trial. Defendants’ motions test

whether a trial is necessary.

The first sections of this opinion will consider the issue

of “actual malice” arising out of New York Times v.

Sullivan and later cases. I begin that consideration with

preliminary discussions of plaintiff’s burden of proof, and

the standards to be applied in evaluating a defendant’s

motion for summary judgment.

II.

The Burden of Proof Applicable to a Public Figure

Who Sues for Defamation

Plaintiff Herbert’s cause of action arises under New

York State defamation law. However, in New York

Times v. Sullivan the Supreme Court announced a con-

stitutional rule. It is that, with respect to the alleged

libels of public officials, the First and Fourteenth Amend-

ments preclude recovery absent proof that the defendant

had published a damaging falsehood “with ‘actual malice’

—that is, with knowledge that it was false or with reck-

less disregard of whether it was false or not.” New York

Times v. Sullivan, supra, 376 U.S. at 280, 84 S.Ct. at

726. “The approach of New York Times was to identify

33a

a class of person—there public officials—and a type of

activity—there official conduct—and to require as to def-

amations respecting them a particularly high standard of

liability—knowing falsehood or reckless disregard of the

truth.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272,

91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). The New York

Times rule was extended to “public figures” by Curtis

Publishing Co. v. Butts, 388 U.S. 180, 87 S.Ct. 1975, 18

L.Ed.2d 1094 (1967). See also Gertz v. Robert Welch,

Inc., 418 U.S. 328, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

In the case at bar, Herbert concedes that by reason

of his much publicized charges against the Army and his

superior officers, he is a “public figure” within the mean-

ing of the New York Times rule. Indeed he is. The

Second Circuit recently summarized the criteria. An in-

dividual is a “limited purpose public figure” if he has:

“(1) successfully invited public attention to his views

in an effort to influence others prior to the incident that

is the subject of litigation; (2) voluntarily injected him-

self into a public controversy related to the subject of

the litigation; (3) assumed a position of prominence in

the public controversy; and (4) maintained regular and

continuing access to the media.” Lerman v. Flynt Dis-

tributing Co., Inc., 745 F.2d 123 (2d Cir., 1984) at 136.

Herbert’s much publicized war with the Army satisfies

all these criteria.

Defendants argue that by virtue of his former military

rank, Herbert should also be regarded as a “public of-

ficial.” Herbert disputes that characterization. I need not

resolve the issue, because the burden of proof falling upon

Herbert under the New York Times rule is in either

evert the same.

That burden was most recently articulated by the

Supreme Court in Bose Corp. v. Consumers Union of

U.S. Ine., U.S. . n. 30, 104 S. Ct. 1949,

1965 n.30, 80 L.Ed.2d 502 (1984) :

34a

“The burden of proving ‘actual malice’ requires the

plaintiff to demonstrate with clear and convincing

evidence that the defendant realized that his state-

ment was false or that he subjectively entertained

serious doubt as to the truth of his statement.”

As Judge Friendly observed for the Second Circuit in

Cianci v. New Times Publishing Co., 639 F.2d 54, 59

(1980), a plaintiff “within the ambit of Sullivan” also

has, “at least as a practical matter, the burden of prov-

ing falsity, since he must in any event establish that

defendant published with knowledge of falsity or reckless

disregard of the truth.” However, the Supreme Court in

Bose specifically recognized that “there is a significant

difference between proof of actual malice and mere proof

of falsity,” 104 S.Ct. at 1965.

Proof of actual malice is a more stringent burden. It

requires a public figure plaintiff to demonstrate actual

malice by “clear and convincing evidence.” Under the

“clear and convincing” burden, “a mere preponderance

of the evidence is not enough.” Hotchner v. Castillo-

Puche, 551 F.2d 910, 913 (2d Cir. 1977). The “clear

and convincing” standard is “intermediate between the

normal ‘preponderance of the evidence’ civil standard and

the ‘beyond the reasonable doubt’ criminal standard,”

Yiamouyiannis v. Consumers Union of the U.S., Inc., 619

F.2d 932, 940 (2d Cir. 1980), quoting Nader v. de

Toledano, 408 A.2d 31, 49 (D.C.1979), cert. denied, 444

U.S. 1078, 100 S.Ct. 1028, L.Ed.2d 761 (1980).

New York Times articulated two bases for a finding

of “actual malice’: publishing with knowledge that the

statement was false, or with reckless disregard of whether

it was false or not. “Knowledge of falsity” means what

it says. Later cases further define the concept of “reck-

less disregard” for truth. In Herbert v. Lando, supra,

the Supreme Court said that “absent knowing falsehood,

liability requires proof of reckless disregard for truth,

35a

that is, that the defendant ‘in fact entertained serious

doubts as to the truth of his publication.’”’ 441 U.S. at

156, 99 S.Ct. at 1638, quoting St. Amant v. Thompson,

390 U.S. 727, 731, 88 S.Ct. 1823, 13825, 20 L.Ed.2d 262

(1968). As Gertz v. Robert Welch Inc., supra, makes

clear and Bose Corp. v. Consumers Union of U.S., Inc.,

supra, reiterates, the plaintiff must prove on the part of

the defendant a “subjective awareness of probable fals-

ity,” Gertz, at 418 U.S. 335, n. 6, 94 S.Ct. at 3005 n. 6;

such a finding may be inferred if, inter alia, “there are

obvious reasons to doubt the veracity of the informant or

the accuracy of his reports.” St. Amant v. Thompson,

supra, 390 U.S. at 732, 88 S.Ct. at 1826. And in Garri-

son v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13

L.Ed.2d 125 (1964), the Court characterized statements

made in reckless disregard of truth as “those false state-

ments made with the high degree of awareness of their

probable falsity demanded by New York Times ... .”

This formulation in Gerrison, a state prosecution for

criminal libel, is pertinent because in Herbert v. Lando,

the Court cited Garrison for the proposition that “|c]rim-

inal libel prosecutions are subject to the same constitu-

tional limitations” as pertain to defamation actions by

public officials or public figures. 441 U.S. at 156 n. 1,

99 $.Ct. at 1631 n. 1.

The element of subjective awareness is critical to the

New York Times line of authority. It is sufficient for a

public figure plaintiff to prove that the defendant pub-

lisher, judged by the objective standard of the reason-

able man, should have known that the defamatory state-

ment was false; or that further investigation would have

revealed the falsity. “[E|rrors of fact caused by negli-

gence” are not compensable under New York Times.

Time, Inc. v. Pape, 401 U.S. 279, 292, 91 S.Ct. 633, 640,

28 L.Ed.2d 45 (1971). A trial judge may not instruct the

jury that the defendant publisher’s liability turns upon

whether or not he acted with a “belief founded on reason-

rere

36a

able grounds of the truth of the matter published,” since

that standard “is far less stringent than that of know-

ing falsehood or reckless disregard of the truth,” Monitor

Patriot Co. v. Roy, supra, 401 U.S. at 273, 91 &.Ct. at

626. These related principles are summarized in St.

Amant v. Thompson, supra, 390 U.S. at 731, 88 S.Ct.

at 1325:

“ec

. . reckless conduct is not measured by whether a

reasonably prudent man would have published, or

would have investigated before publishing. There

must be sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts

as to the truth of his publication.”

In Herbert v. Lando, supra, the Court observed that:

“ , . New York Times and its progeny made it

essential to proving liability that the plaintiff focus

on the conduct and state of mind of the defendant.

To be liable, the alleged defamer of public officials

or of public figures must know or have reason to sus-

pect that his publication is false. In other cases

proof of some kind of fault, negligence perhaps, is

essential to recovery.” 441 U.S. at 160, 99 S.Ct. at

1640 (footnote omitted).

Citing Herbert, the Second Circuit held in Lerman, supra,

that “ ‘actual malice’ as is implied in that expression is

a subjective test focused on the defendant’s state of

mind.” At 140. The state of mind requisite for liability

is knowledge of actual or probable falsity. Cf. Herbert v.

Lando, supra, at 172, 99 S.Ct. at 1646. “If such proof

results in liability for damages which in turn discourages

the publication of erroneous information known to be

false or probably faise, this is no more than what our

cases contemplate and does not abridge either freedom

of speech or of the press” (emphasis added).

37a

ITI.

Applicable Standards in Evaluating Defendants’

Summary Judgment Motions

The standards to be applied by trial courts in this Cir-

cuit in evaluating a defendant’s motion for summary

judgment on the “actual malice” issue are set forth in

Yiamouyiannis, supra. The public figure defamation case

is regarded for summary judgment purposes as any

other; “neither grant nor denial of a motion for sum-

mary judgment is to be preferred.” 619 F.2d at 940.

However, as Judge Oakes observed in Yiamouyiannis,

the court need not be concerned by the general inap-

propriateness of summary judgment to “state of mind”

issues where (as in the case at bar) “the evidence on

actual malice has been fully marshalled” by pre-trial

discovery, and the parties do not “seek or suggest the

need of further discovery. . .” Ibid. In such circum-

stances, Yiamouyiannis describes the proper procedure

in these terms:

“In a case where the defendant has moved for sum-

mary judgment on the issue of actual malice and the

plaintiff claims that there remain material factual

disputes, the court decides the materiality of the dis-

puted facts by accepting the plaintiff’s version and

applying the actual maiice standard. This standard

requires a clear and convincing showing, which may

be by circumstantial evidence, of defendant’s actual

state of mind—either subjective awareness of prob-

able falsity or actual intent to publish falsely. There-

fore, a judge in denying a defendant’s summary judg-

ment motion must conclude that, based on the evi-

dence asserted in the plaintiff’s affidavits, ‘a rea-

sonable jury could find malice with convincing clar-

ity.’” 619 F.2d at 940 (quoting Nader v. de Tole-

dano, supra, at 49, emphasis in original).

38a

To state the converse, a defendant should be granted

summary judgment if “a properly instructed jury could

not fairly and rationally conclude upon clear and con-

vincing evidence” that defendant’s publications of false

and defamatory statements “were knowing or made with

actual malice,” thereby demonstrating ‘“defendant’s req-

uisite fault with respect to the factual error dissemi-

nated,” Lerman, supra, at 141, 142.

Such a ruling is one of law, not fact. The public

figure, plaintiff, to survive a motion for summary judg-

ment, is not required to prove actual malice with con-

vineing clarity to the motion judge. Nader v. de Tole-

dano, supra, at 408 A.2d 49. Resolution of genuine issues

of fact are for the jury. But where it appears that no

reasonable jury could find actual malice with convincing

clarity, the defendant is entitled to summary judgment. |

Having made these general observations, one must also

recall the Supreme Court’s recognition in St. Amant v.

Thompson, supra, that the concept of “reckless disre-

gard ... cannot be fully encompassed in one infallible

definition. Inevitably its outer limits will be marked out

through case-by-case adjudication, as is true with so

many legal standards for judging concrete cases, whether

the standard is provided by the Constitution, statutes, or

case law.” 390 U.S. at 730-731, 88 S.Ct. at 1325. Thus

the evidence in each case with respect to the allegedly

false and defamatory statements must be carefully ana-

lyzed. Where, viewing the evidence in the light most

favorable to plaintiff, a reasonable jury could make the

requisite finding of actual malice, the case is for the jury.

Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d Cir.1969),

cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d

695 (1970). It is equally clear, however, that in an

appropriate case summary judgment in favor of defend-

ant will lie. Yiamouyiannis, supra; Lerman, supra; Loeb

v. New Times Communications Corp., 497 F.Supp. 85

39a

(S.D.N.Y.1980) ; Reliance Insurance Co. v. Barron’s, 442

F.Supp. 1341 (S.D.N.Y.1977).

In light of these authorities, I turn to the particulars

of the case at bar.

IV.

Genesis of the Program

Herbert is a much-decorated soldier who enlisted in

the United States Army as a private in 1947. at the

age of 17. He retired on February 29, 1972 with the

rank of Lieutenant Colonel.

Herbert served in Vietnam from September 1968 to

July 1969. From February 6 to April 4, 1969, he com-

manded the 2d Battalion of the 173d Airborne Brigade.

General John W. Barnes commanded the brigade. Colonel

J. Ross Franklin was deputy commander.

On April 4, 1969 Barnes relieved Herbert of his com-

mand of the 2d Battalion. From April 5 to July of 1969

Herbert was assigned to the Capital Military Assistance

Command in Saigon.

Herbert protested his relief from command by Barnes.

While at Saigon he initiated a proceeding under Article

138 of the Uniform Code off Military Justice, 10 U.S.C.

§ 938, seeking redress on the ground that his relief had

been without justification. Major Generali Joseph R. Russ

presided over a board which, after hearing a number of

witnesses including Herbert, Barnes, and Franklin, denied

Herbert redress.

Herbert was transferred from Vietnam and reported to

the Command and General ‘Staff College at Fort Leaven-

worth in July of 1969. Subsequently he was assigned to

Fort McPherson. On September 28, 1970 Herbert filed

with the Inspector General’s office at Fort McPherson

formal charges that war crimes and atrocities were com-

mitted in Vietnam by elements of the 173d Airborne

40a

Brigade. Herbert also filed charges against Barnes and

Franklin for failure to investigate or report those inci-

dents, which Herbert listed specifically. These charges

generated three investigations by the Army’s Criminal

Investigation Department (“CID”). Herbert also sought

review of the negative efficiency report accompanying his

relief from command. This administrative review is

known as a “reclama.” Ultimately all of Herbert’s

charges were rejected, and the review denied.

Herbert retired from the Army. With James Wooten,

a New York Times reporter, he wrote an autobiography

ealled Soldier which attacked the Army and its treatment

of him. Herbert appeared on numerous television and

raiio shows to press those charges and publicize his book.

Herbert first met Barry Lando on July 1, 1971. On

that date Lando, then a news writer for CBS, interviewed

Herbert at a motel in Natural Bridge, Virginia. The in-

terview covered Herbert’s background, the mistreatment

of Vietnamese prisoners, Herbert’s war crime charges,

the Army’s investigations of them, and Herbert’s antici-

pated retirement from the Army. Herbert impressed

Lando favorably. A part of that interview was broadcast

on CBS Weekend News on July 7, 1971. Lando kept in

touch with Herbert, and met with Herbert and his attor-

neys on three occasions in Atlanta during February and

March 1972. By this time the Army had exonerated

Barnes and Franklin of Herbert’s charges, and Herbert

had left the Army.

In September 1971 Lando had become one of several

producers on “60 Minutes,” CBS’s popular weekly news

program. In early March 1972 he recommended to Wal-

lace that the program do a favorable report on Herbert.

Wallace disagreed. He considered that “60 Minutes”

could not add to the public’s knowledge of Herbert, and

that the program should not promote him further. Wal-

lace also expressed skepticism of some of Herbert’s claims.

4la

Lando persisted. Wallace told him to pursue his inquiries

and obtain additional material.

Over the ensuing months, concurrently with other as-

signments, Lando continued interviewing individuals and

examining documents about Herbert. He received con-

siderable cooperation from the Army, stopping short, how-

ever, of a release of the Barnes and Franklin investiga-

tory files. All told, in preparation for the program, Lando

interviewed more than 120 people and examined thou-

sands of documents. He conferred frequently with Wal-

lace. Lando says (affidavit, 735) that as the result of

his investigation he concluded that the Army’s investiga-

tions were not a whitewash, and that Herbert had not

been relieved of command for trying to report war crimes

to his superiors. Those conclusions persuaded Wallace

that a segment on Herbert would be sufficiently news-

worthy for “60 Minutes.” The program was constructed,

edited, and aired on February 4, 1973. I will consider it

in some detail.

V.

Contents of the Program

As noted, the program aired on Sunday, February 4,

1973. Captioned “The Selling of Col. Herbert,” it com-

prised one of the three 20-minute segments on the “60

Minutes” broadcast that evening. The program consists

of edited excerpts of filmed interviews of Herbert and

others, interspersed with comments by Wallace. The

transcript is in evidence on these motions.

Wallace commences the segment by stating: ‘One of the

sad legacies of our years in Vietnam is the distrust of

the American military establishment the war planted in

the minds of millions of Americans.” Herbert is identi-

fied as one who helped to breed that suspicion. Wallace

refers to Herbert’s book “Soldier” as “a savage indict-

ment of the Pentagon in general and some of its top

officers in particular.” Wallace identifies one of Herbert’s

42a

aims as “proving that his military career was destroyed

by the Pentagon only because he tried to report war

crimes, atrocities, in Vietnam to his superior officers.”

Wallace concludes his introduction:

“60 Minutes set out to investigate the validity of

Herbert’s allegations. In the course of the last year,

producer Barry Lando talked with scores of people

in and out of the service—people who have known

Herbert and the Army. Here is our report.”

The program then displays an excerpt from a prior

Dick Cavett interview with Herbert, in which Herbert

described the so-called “St. Valentine’s Day Massacre” at

Cu Loi. Herbert described for Cavett the massacre of

Vietnamese civilians by South Vietnamese “national

police” acting “under an American’s charge.” Wallace,

resuming, says:

“As Hebert tells it, then and now, he tried repeat-

edly to have this and other alleged war crimes in-

vestigated by his commanders in Vietnam. As a

result, he says, he was relieved of command and had

his career ruined by an Army establishment intent

on covering up atrocities.”

Wallace goes on to describe Herbert’s distinguished mili-

tary record, culminating in his appointment as commander

of the Second Battalion of the 173d Airborne Brigade.

Wallace says:

“Again Herbert excelled. In only 58 days he won

a Silver Star and three Bronze Stars. But then,

abruptly, in April of 1969, he was relieved of com-

mand by the same officer who had given it to him,

General John Barnes.”

The program then focuses upon Barnes, undergoing

questioning by Lando and Wallace. Barnes expresses the

view that Herbert was “a killer,” that he “enjoyed kill-

ing,” and would cause Barnes trouble in “the pacifica-

43a

tion,” although in response to Lando’s questions Barnes

acknowledged that he had no “hard evidence” to show

that Herbert was a “killer,” and that Herbert’s evident

enjoyment in leading squads in the field with a M-16

rifle could “just be a sign of bravery.” Barnes also ex-

pressed suspicion with Herbert’s high body counts. And

Barnes added: “I just didn’t have confidence in him. I’d

lost confidence in him as a comander with the ability to

control his people.”

These exchanges then occurred. Because of their cen-

tral significance to the issues I quote them verbatim:

“LANDO: Did Colonel Herbert ever formally or

informally report any war crimes or atrocities to

you?

“BARNES: He himself never did to me. Abso-

lutely not. If he had, I would have taken the same

action I did when I learned of atrocities anywhere.

If they are under my responsibility, I wouid have

court-martialed the man responsible for it, as I told

every replacement that came into the brigade.

“WALLACE: General Barnes’ deputy commander

was Colonel Ross Franklin. It was he who recom-

mended to Barnes that Herbert be relieved. One

reason, says Franklin, is that he had come to feel

he could not trust Herbert’s word.

“FRANKLIN: Tactically, he was the best battalion

commander we had. I counseled Herbert several

times and once I counseled him on telling the truth

or being more exact in what he said. I told him at

that time that he could run circles around all the rest

of the battalion commanders if he’d just tell the

truth.

“WALLACE: Did Colonel Herbert ever report war

crimes or atrocities of any nature to you, Colonel

Franklin?

“FRANKLIN: No.

Oe

44a

“WALLACE: Never?

“FRANKLIN: Never.

“WALLACE: Verbally or in writing?

“FRANKLIN: In no way, either orally or in writ-

ing. This—I had many conversations with Colonel

Herbert. We discussed many things, but never war

crimes.”

Wallace resumes the narrative, describing Herbert’s

unsuccessful effort to obtain redress after losing his com-

mand, and the filing of Herbert’s court-martial charges

against Barnes and Franklin. On the latter point, Wal-

lace says:

“And then in September 1970, 17 months after he

had been relieved of command, with the headlines

filled with news of the My Lai trials, Colonel Herbert

filed his war crimes charges with the Army Inspector

General. Six months later, Colonel Herbert went

public.”

Franklin expresses his inability to understand why Her-

bert “has come up with totally fictional charges.”

Responding to Wallace, Herbert reiterates his claim

that he was relieved from command because of his in-

sistence on having war crimes investigated. Wallace then

observes that “in almost all the cases” where Herbert

claims to have reported war crimes to Franklin or Barnes,

it was only Herbert’s word against theirs. “So what we

decided to do,” Wallace says, “was to zero in on the one

case where there’s a possibility, anyway, of proving who’s

telling the truth—without relying on your word against

their word.”

Wallace then summarizes Herbert’s account of sveaking

to Colonel Franklin by radio from the field on February

14, 1969, immediately after the Cu Loi killings, and then

flying directly back to “Landing Zone English” later that

45a

day to report the incident personally to Franklin. Frank-

lin then appears on the program to say that on February

14 he was “on R & R” (rest and rehabilitation) in the

llikai Hotel in Honolulu, Hawaii and did not return to

Vietnam until February 16. Herbert says: “If he [Frank-

lin] says he wasn’t there, I say he’s lying.” But Herbert

acknowledges he cannot prove it. Wallace says: “60

MINUTES tried to find out who was telling the truth.”

Wallace then describes inquiries made by the producers at

the Ilikai Hotel, leading to a hotel bill and Franklin’s

cancelled check payable to the hotel, “which means,” Wal-

lace states, “that he had to be in Hawaii to pay his bill

himself on the 14th of February; therefore could not have

been where you said he was on the 14th of February.”

Wallace also says that the 60 Minutes staff spoke with

two Army officers who were in Hawaii at the same time,

and who said that they flew back to Vietnam with Colonel

Franklin, “taking off from Honolulu late on February 14,

arriving at Camranh Bay in Vietnam on February 16,

local time.” Wallace shows Herbert the hotel bill and

Franklin’s check, and there is a colloquy about them.

Wallace then states:

“In his book, Colonel Herbert writes that there are

several people who can testify that Franklin was in

Vietnam on February the 14th. We asked Herbert

for the names of those men. We contacted almost

every one of them. None could confirm Herbert’s

claim. Several men serving under Herbert said they

had heard Herbert say, while in Vietnam, that he

had reported the February 14 killings, but none were

certain that he had actually reported them.”

General Barnes materializes at this point to express

puzzlement that, during Herbert’s three months in Saigon

for the Article 138 inquiry, he failed “to jot something

down on a piece of paper, to get it notarized.” That

prompts Wallace to observe to Herbert that Herbert has

no documents to show that he “ever reported a war crime

46a

to anybody prior to the time that the My Lai trials were

going on at Fort McPherson in Georgia.” Herbert de-

bates the documentation issue with Wallace; reiterates

that he reported atrocities to Franklin and Barnes; again

calls them liars; and again insists that the Army deprived

him of his military career because he insisted upon re-

porting war crimes and the Army wanted them covered

up.

Wallace then focuses the audience’s attention upon the

Longbinh Army base just outside Saigon, where Herbert

went to appeal his relief from command—“and also, he

Says, to present his war crimes charges.” Wallace rc-

peats Herbert’s charge that Herbert spoke to Colonel

John Douglass, a “U.S. military lawyer and judge in the

country.” Wallace states: “Herbert claims that Douglass

listened to his story and then told him he wouldn’t touch

war crimes charges against a general with a_ ten-foot

pole.” Douglass then appears on the program, being

interviewed by Wallace. Douglass denies Herbert’s ac-

count. In substance, Douglass says that Herbert told him

he had a complaint about his relief; that Douglass turned

Herbert over to his assistant, one Colonel Rector; that

Herbert never mentioned war crimes to Douglass; and

that Rector never told Douglass that Herbert had men-

tioned war crimes to him.

Wallace then confronts Herbert with Douglass’s ac-

count. Herbert says Douglass’s account is not true and

that he never saw Rector. Wallace states that “60 Min-

utes” had contracted Colonel Rector, who said that he had

spoken with Herbert “at some length” about his relief

from command, but that Herbert “never claimed that war

crimes had anything to do with it.”” Wallace expands on

that theme:

“In fact, over the past several months, we have

spoken with many men who saw Herbert after his

relief in Vietnam. Some are still in the service, some

are out. Most of them admire Herbert, yet to a man

47a

they say that Herbert never once said to them that

he had been relieved because he had tried to push war

crimes charges.”’

Shifting gears somewhat, Wallace asks Herbert if

Herbert claims that the Army’s investigations into the

court-martial charges against Barnes and Franklin was

a “whitewash.” Herbert makes an affirmative response.

Wallace asks Herbert if he remembers an attorney by

the name of “Ken Rosenbloom.” Yes, I do,” replies Her-

bert; “I was the one that put you in contact with him.”

“Right,” Wallace responds. The program then moves to

an interview between Wallace and Rosenbloom. Wallace

identifies Rosenbloom as a former captain in the Judge

Advocate General’s corps who handled the Barnes inves-

tigation, and is now an assistant district attorney on

Long Island. (The correct spelling is “Rosenblum,” but

in this section of the opinion I will use the version in the

program transcript.) Rosenbloom in substance denies

that the Barnes investigation was a whitewash. He de-

scribes travels “all over the country,” “thousands and

thousands of pages of transcript,” and complete open

access to information given by the Army. The ultimate

verdict was that the charges against Barnes did not hold

water; Rosenbloom described himself as open-minded,

with no grudge against the Army, no grudge against

Herbert, and no Army career to protect.

Rosenbloom faces from the screen, and Wallace again

confronts Herbert. Herbert responds: “Then let them

present the statements and the evidence.” This is a

reference to the fact that the Army has never consented

to the release of the Barnes and Franklin investigation

files. Herbert also says that another military lawyer, one

Dick Heintz, “will verify what we have said.” Wallace

replies that 60 Minutes contacted “Herbert’s military

lawyer, Captain Heintz.” Wallace continues:

“He said that, from the few documents he had seen,

he suspected the Army was not doing its best to in-

48a

vestigate Herbert’s charges. But he said that he

could not be at all certain of that until the full

investigations are made public.”

Wallace moves on to another topic. He says:

“Another thing that we found out checking out Her-

bert’s book: although several men who served with

Herbert say it’s not so, there are others who claim

that Herbert was an officer who could be brutal with

captured enemy prisoners himself.”

Wallace then turns to Herbert: “You used to have a radio-

man by the name of Bruce Potter, right?” Herbert ac-

knowledges that he did. The audience then views part of

a filmed interview between Potter and Lando. Potter

recounts an incident suggesting that Herbert terrorized

Vietnamese detainees by making them think he would

throw them out of a helicopter. Potter and Lando fade

out. Wallace confronts Herbert with the incident. Her-

bert denies it. Herbert then acknowledges to Wallace that

he knew one “Bob Stemmies” (the correct spelling is

“Stemme,” but I will continue to follow the transcript),

a military intelligence sergeant in Vietnam. Wallace ad-

vises Herbert that Stemmies had told 60 Minutes that

“he was present once with you as a Viet Cong nurse was

being interrogated by ARVN troops, being beaten by them

to get her to talk, you were there, stood by, did nothing.”

Herbert denies the incident. Wallace asks Herbert if he

remembers a helicopter pilot named Mike Plantz. Herbert

says he does not. Wallace tells Herbert that while Plantz

was flying a helicopter for Herbert, he saw Herbert beat

up a “wood cutter” and also a Viet Cong prisoner

brought back to Landing Zone English. Herbert denies

that incident: “It’s false. It’s false.”’

Wallace then introduves the name of Bill Hill. The fol-

owing exchange takes place:

“WALLACE: Billi Hill, one of your top company

commanders—

49a

“HERBERT: Yes.

“WALLACE: —has told us that Herbert ‘is the

best battalion commander I’ve ever had, but for some

reason he’s become a liar. It’s all so much garbage.’

“HERBERT: If he’s still in the Army, he will do

the same as other officers will do, I’m sure, in order

to keep their career going. These men are not going

to destroy themselves.

“WALLACE: In other words, he has simply chick-

ened out and is going along with the Army line

against Herbert?

“HERBERT: I don’t know.

“WALLACE: Well, that’s what you’re suggesting.

“HERBERT: I don’t even know he said it. You’re

telling me he said it. But I’m sure he did say it if

you said he did. I’m telling you, if Bill Hill feels

I’m lying, he’s entitled to have that opinion, right?”

The program then turns to what one may characterize

as the “Grimshaw Confrontation.” Wallace introduces

the theme: “In checking out Herbert’s book, ‘Soldier’, we

found numerous stories that, according to the people

mentioned in those stories, are not true.” “One such

man,” Wallace continues, is a Major Jim Grimshaw, who

served under Herbert as a company commander in Viet-

nam. The program pans to Wallace’s interview with

Grimshaw. Grimshaw denies that he performed a haz-

ardous feat described by Herbert in his book, or that

Herbert recommended Grimshaw for the Silver Star for

that incident, as Herbert said he did. Wallace asks

Grimshaw: “What do you think about Tony Herbert?”,

tailoring the question to “things of which you have cer-

tain knowledge.” Grimshaw responds that Herbert “has

expanded some of these stories,” and that Herbert has

“blown it out.” Wallace then asks Grimshaw if Grimshaw

believes that H» >ert was relieved from command “be-

cause he wanted vio push allegations of war crimes and

50a

atrocities.” Grimshaw responds in the negative. Wallace

reminds Grimshaw that the interview is taking place in

the Pentagon, and asks: “Did anybody here order you to

come here and talk to us?” “No,” says Grimshaw. Wal-

lace asks Grimshaw: “You’re your own man?” Perhaps

not surprisingly, Grimshaw replies: “I’m my own man.

I like to think Iam. I hope I am.”

Waliace then faces the cameras and says this:

“Jim Grimshaw telephoned Colonel Herbert after we

had talked to him. Herbert called us with that news

and he claimed that Grimshaw told him that he had

spoken with us in the Pentagon only under pressure

—that his career was on the line. Herbert told us

that was the reason that other officers had also come

out against him. When we checked with Grimshaw,

he denied telling Herbert that. So to settle the argu-

ment, we flew Grimshaw and his wife to New York

and had them wait outside listening to our interview

with Herbert. When Herbert again intimated that

Grimshaw had been pressured by the Pentagon to

bad-mouth Herbert, we told Herbert that Grimshaw

was there.”

The program then reverts to Wallace’s interview with

Herbert. Grimshaw enters, stage right. He and Herbert

greet each other. Herbert and Grimshaw, with occasional

interjections by Wallace, discuss the accuracy of those

incidents in “Soldier” of which Grimshaw had personal

knowledge. Grimshaw says: “So, now we’re taiking three

incidents, when you get right down to it,” and adds: “I’m

telling you two-thirds, then, are not true.” Wallace im-

mediately asks Grimshaw if he was under any pressure

from the Pentagon or his commanding officer to give

Wallace an interview. Grimshaw answers: “No,” “Abso-

lutely not,” overriding Herbert’s statement: “You told

me that.” “And I wasn’t briefed,’ Grimshaw adds for

good measure.

5la

Next, Wallace elicits from Grimshaw an implied criti-

cism that Herbert should have checked out his stories with

people whose names appear in the book. Grimshaw says:

“Why didn’t you call guys like myself or Hill or some

of these guys.” Herbert expostulates with Grimshaw, but

Grimshaw again overrides him:

“GRIMSHAW: You know, you’re making us a

public figure—

“HERBERT: Okay, wait a minute, Jim.

“GRIMSHAW: —whether you want—You know,

you’re trying to do me a very good job and, in a

sense, maybe I think it’s because of all the problems

that occurred and you maybe want to put us in a

good light to the American public. But now you’ve

made me a public figure. I can’t help it; I have to

speak out.”

Wallace then describes the generally favorable and un-

critical publicity that Herbert had received from the

media. Attorney Ken Rosenbloom appears again to ex-

press the opinion that “because of the temper of the

times and what the country wanted to hear, perhaps, or

because the media was looking for another hero, they

tended to accept these allegations uncritically.” Wallace

then draws from Franklin the acknowledgment that

Franklin refused to talk to the New York Times in

Vietnam. At this point, Barnes observes that during the

court-martial investigations, the Army’s policy was not

to put out any statements, so that “the press had no place

else to go for information but back to Herbert, where

the source was. And I just think that the press did what

they could but they weren’t given both sides of the

stories.”

The program concludes with the following:

“LANDO: Why not make the investigation public,

then?

52a

“BARNES: Don’t ask me. If I was in charge I

would, but I’m not in charge.

“HERBERT: One of the things I have said from

the beginning is that you’ll never know for sure. No

one will know the whole truth until the Army re-

leases for publication every single document and

statement they have, which they have not done unless

they’ve let you read them all. And the second portion

[sic] is, until they have a full Congressional inquiry

to find out is Herbert telling the truth? Is Herbert

lying? Is Ross Franklin telling the truth? Is Ross

Frankling lying? And lay it all out there for every-

body—and I’m sure that’s what you’re trying to do

to some extent tonight and I go along with it.

“WALLACE: Okay.

“The Army could indeed help resolve the controversy.

They could open their files to a public airing. They

could make themselves available for questioning about

the whole Herbert business. But they won’t. I asked

former Army Chief of Staff William Westmoreland

to talk about it. He refused to be interviewed. I

asked General Winant Sidle, the Army’s Public In-

formation Chief. He refused, too. Why? We heard

two lines of speculation among Pentagon people. One

is that the Army doesn’t want to help make a martyr

of Tony Herbert. And the other is that during the

various investigations into Herbert’s charges, the

Army found so n:any true stores of war crimes that,

irrespective of whether Tony Herbert had reported

any of them, the Army just doesn’t want to wash

that kind of dirty linen in the open. Perhaps the

best way to stop all speculation is to do what you

heard Anthony Herbert and General Barnes suggest

a moment ago: make the Army investigations public.”

Herbert’s statement appearing in this concluding ex-

change was in fact transposed by CBS, in the editing

53a

process, from the beginning of Wallace’s interview with

Herbert to the end.

VI

Genesis of the Article

Shortly after the program was aired, Lando began

work on an article. Its purposes, according to Lando,

were to describe Lando’s investigation of Herbert and

the preparation of the program; to counter charges Her-

bert was making against Lando and the program; and

to discuss Herbert’s ready acceptance of what Lando

regarded as the “liberai”’ press.

Lando sold his article to defendant Atlantic Monthly.

Atlantic editors participated in readying the manuscript

for publication. The article appeared in the May 1973

issue of the magazine, under the title “The Herbert

Affair.”

VII.

Contents of the Article

The article runs over nine pages of the magazine.

Atlantic Monthly’s editors composed a preface to Lando’s

words. That preface, known in the trade as a “streamer,”

is the first text to appear under the title. It reads as

follows:

“He seemed to be the perfect soldier, a hero in

Korea and in Vietnam. Then he was driven out of

the Army, his career ruined because he tried to pre-

vent his superiors from concealing war crimes ..gainst

the Vietnamese. That was the story a television

producer persuaded his superiors at CBS should be

presented to a nationwide audience. As the producer

and his associates began assembling the facts, they

found it changing into a very different story, one

that left the reporter disillusioned and the hero

threatened with decanonization. The producer here

54a

tells how the case unfolded for him, from his first,

convincing interviews with Lieutenant Colonel An-

thony Herbert, through intensive researching of Her-

pert’s alarming charges against fellow Army officers,

to a dramatic confrontation between Herbert and

some of those who disputed him on the CBS program,

Sixty Minutes, shown on February 4 of this year. It

is a tangled story, to say the least. One of its lesser

anomalies: Herbert’s book Soldier, now profitably

riding the best-seller list, is published by Holt, Riae-

hart and Winston, which is owned by CBS, the or-

ganization that has done the most to attack the

book’s integrity.”

Lando’s text then begins. Lando describes his initial

interviews with Herbert, the favorable impression Her-

bert made upon him, and Lando’s belief in Herbert’s

charges against Barnes, Franklin, and the Army. In July

and September 1971, Lando notes in the article, Herbert

received favorable write-ups in Life magazine and the

Sunday magazine section of the New York Times. That

second piece, Lando notes in his Atlantic Monthly article,

“was written by the Times Southern correspondent James

T. Wovten. Wooten had covered Herbert since he first

made his charges public, and had come to believe fully

in the man and most of his claims.”

Lando goes on to recount Herbert’s appearance on the

Dick Cavett Show, and the increasing publicity that Her-

bert’s charges were receiving in the Congress and in the

press. Lando describes the responses to the charges that

the Army began to make, following the Army’s exonera-

tion of General Barnes in October 1971. “Fueled by such

information and interviews provided by the Army,”

Lando writes, “several reporters began to write pieces

seriously questioning Herbert’s claims.” An excerpt from

the transcript from the “60 Minutes” broadcast is quoted,

setting forth Franklin’s denials of reports or conversa-

tions with Herbert about war crimes.

55a

In the article Lando recounts his initial enthusiasm

for doing a favorable “60 Minutes” segment on Herbert,

and Wallace’s initial skepticism. Lando describes his

ensuing investigation, interspersed with further quota-

tions from the “60 Minutes” transcript. Lando describes

interviews, evidence, and evaluations which ultimately

persuaded him that Herbert was not truthful.

Lando is also critical in the article of Herbert’s book

Soldier, describing it as “a melange, a kaleidoscope of

truth, half-truth, and fabrication.” Lando gives exam-

ples of these imperfections, as he perceives them. Lando

quotes comments made by S.L.A. Marshall in an article

Marshall wrote for the National Review, which cast. doubt

on the accuracy of Herbert’s prior account of events in

Korea. Lando points to discrepancies he perceives in Her-

bert’s ealier book. Conquest to Nowhere.

Lando describes Herbert’s third appearance on the

Dick Cavett Show in January 1973. Herbert referred to

Pentagon documents which he said would prove his case;

but, Lando observes, Cavett did not ask Herbert to

produce them.

In the article Lando expresses surprise that the firm

of Holt, Rinehart and Winston, the publishers of Soldier

(which Herbert wrote with the assistance of Wooten)

did not react or contact CBS in any way after the un-

favorable “60 Minutes” segment had been aired. Lando

writes that when he was preparing the Atlantic Monthly

article, he called Holt to inquire about the captions to

several photographs in Soldier which Lando perceived to

be inaccurate. Holt editors and officers are quoted as

responding, in substance, that they had not checked out

the details, although one Holt editor added: “There is no

question in our mind about the substantial validity of

Tony’s story.”

The article concludes:

“What to conclude? I don’t pretend to know the

motives behind the behavior that has brought Herbert

56a

to national prominence. It seems plain to me that

they included a desire to salvage his threatened career

and to seek revenge on Colonel Franklin and General

Barnes, and that to do so he exploited the issue of

war crimes.

“The Army has not released the contents of its in-

vestigation into the Herbert affair. The Army is not

compelled to do so. There is no recent precedent for

such disclosure, though it would presumably go a long

way toward clearing the air. The Army, however,

may well resist publishing the information because

it would include many accounts of atrocities that

would further damage the Army’s own reputation.

“It is important not to let the vagaries of the

Herbert affair obscure the fact that atrocities did

occur, before Herbert’s eyes and the eyes of count-

less others. Indeed, the argument can be made that

Herbert, whatever his distortions and inventions, is

to be thanked for keeping the nation’s eyes on the

war crimes issue. But I am not comfortable with

that argument, because it forgets the responsibility

of the press. The press, which long had been negli-

gent about dealing with the question of American

war crimes, found in Herbert a heroic figure, a

martyr through whom to dramatize the issue. But

we bought ourselves a martyr with feet ot clay.”

Atlantic editors had considerable input with respect to

the wording of the concluding paragraph of the article.

Robert Manning, then editor-in-chief of the magazine,

was particularly involved, conferring with Lando about

the wording. The magazine’s editors were concerned with

summing up and clarifying the themes of the article.

While the evidence on certain points is in conflict, a jury

could reasunably find that Manning was the first to sug-

gest the phase in the final sentence: “a martyr with feet

of clay.”

57a

The evidence also shows that at the initiative of At-

lantic editors, Lando included in his article the following

paragraph:

“One of the few reviewers to question Herbert’s credi-

bility discovered inaccuracies in his account of Ko-

rean experiences. S.L.A. Marshall wrote in the Na-

tional Review: ‘As for where truth lies in this inci-

dent, and the reliability of Mr. Herbert’s testament,

if his recollection of what happened around Ankhe

and Tuyhoa in Vietnam is no better than his recall

of experience in Korea, the grading should be zero

minus. Having been there at the same time, moving

through the same scenes with the same outfits, I say

that he dilates expansively on things that never

happened.’ ”

Finally, Atlantic contributed the graphics which ac-

company the article. These graphics consist cf five silhou-

ettes of a helmeted soldier, depicted as if they were

targets on a firing range. These illustrations appear on

pages 1, 3, 5, 7, and 9 of the article. The last illustration

appears underneath the concluding paragraph. As the

article progresses, the soldier!ly silhouette becomes in-

creasingly riddled with bullet holes. There are none in

the first illustration; the fifth and last resembles Swiss

cheese.

VIII.

“Actual Malice” and Herbert’s Claims against

Lando, Wallace, and CBS

It is now time to examine in detail those statements

in the program and article which plaintiff claims are

actionable: that is, statements plaintiff alleges were false,

defamatory, and made with knowledge of actual or prob-

able falsity.

On occasion plaintiff’s brief lumps all “defendants” to-

gether indiscriminately. But there are significant differ-

ences in status. Lando was the prime investigator and

58a

architect of the program, and sole author of the article.

Wallace did some investigating and contributed to the

structure of the program. CBS employed them both.

While Atlantic Monthly published Lando’s article, it had

nothing to do with the program, and did no investigating.

Obviously different issues of liability arise. I shall first

deal with the charges of actual malice on the part of

Lando, Wallace and CBS. Atlantic Monthly will be con-

sidered separately.

Much of piaintiff’s 282-page brief deals with background

material: the rerceived predisposition of Lando and

Wallace to debunk Herbert; the methodology of the in-

vestigation; facts omitted, avenues ieft unexplored, con-

tradictions ignored. Ali this plays an admissible and

potentially useful role in the analysis of a public figure

defamation case. But a time comes, in response to sum-

mary judgment motions, when the plaintiff must spe-

cifically identify those statements which he says were

made with knowledge of actual or probable falsity. He

cannot rely on the allegations of his complaint, even those

allegations which purport to identify specific false and

malicious statements. The legal sufficiency of that plead-

ing brought the defendants into court and required them

to answer. Since joinder of issue on the pleadings ex-

tensive discovery has been conducted. At the end of that

discovery, defendants move for summary judgment. They

say, in essence, that some of the contents of the program

and article are not defamatory; none of them are false;

and in any event no statement was generated by actual

malice. Elaborate affidavits and briefs are offered in

support of these propositions. In responding, plaintiff

must abide by Rule 56(e), F.R.Civ.P.: he “may not rest

upon the mere allegations . . . of his pleading, but his

response, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is

a genuine issue for trial. If he does not so respond,

summary judgment, if appropriate, shall be entered

against him.”

59a

I dwell on these obvious truths at some length because

it is not until page 224 of plaintiff’s brief that one finds

a list of particular, identified statements which plaintiff

claims were “false statements known by defendants to

be false.” There are eleven of them. It is these state-

ments—and these alone—which plaintiff, exhaustive dis-

covery having been accomplished, now puts forward in

opposition to summary judgment. In musical terms, what

went before is recitative. The aria begins on page 224

of the score.

I will analyze these eleven statements in turn. But I

must first consider a footnote which plaintiff drops from

the introductory paragraph of his text at p. 224. That

footnote reads:

“In regard to these statements a jury could find

defendants did know they were false when pub-

lished (see Herbert v. Lando, 73 F.R.D. at 393). In

regard to many other statements the jury could find

defendants were aware of their probable falsity (cf.

Gertz, 418 U.S. at 334, n. 6 [94 S.Ct. at 3004 n. 6]).

Because of the overwhelming evidence of defendants’

awareness on some of these other statements, plain-

tiff contends such evidence may also properly sup-

port a jury finding of knowledge of falsity. Such

other statements are not listed herein, nor has the

defamatory impact of the publications in their en-

tirety been addressed here. Also not included herein

are published statements of fact which defendants

did not know to be the fact (see, e.g., supra, pp. 153-

156:. The making of such statements falls within

the area of reckless disregard. See, Sills v. New

York Times, 8 Med.L.Rptr. at 1463.”

With due respect to plaintiff’s experienced counsel, I

am at a loss to understand what defendants and the

Court are to make of such contentions. The assertion

that “[i]n regard to many other statements the jury

60a

could find defendants were aware of their probable fal-

sity,” standing alone, is no more than bare conclusion.

If plaintiff does not specifically identify such statements

—and he declines to do so—how are the defendants to

reply? In fact, defendants do not respond to this foot-

note in their reply papers, and one can hardly blame

them. Surely defendants are not required to suggest

which of their own statements a jury might regard as

reckless. And the Court is not about to speculate on the

subject.

No. Plaintiff’s clear obligation in response to these

motions was to identify specificaily those statements

which he contends a jury could find actionable under the

New York Times v. Sullivan rule, under either prong

of the “factual malice” definition. He undertakes to do

so in the eleven instances to which I now turn. I con-

sider no other statements.

In the ensuing sub-sections, I first quote the statement

and criticism as set forth in plaintiff’s brief, and then

analyze the record evidence. The question for decision

is whether the particular statement is actionable, by

which I mean susceptible of imposing liability at the

hands of a reasonable jury properly instructed on the

law.

(a) On the program, in answer to Lando’s question

to Barnes whether “Herbert ever formally or in-

formally reported any war crimes or atrocities” to

him, Barnes stated, “He himself never did to me.

Absolutely not.” Lando knew, however, that Herbert

had reported POW mistreatment at the An Khe

compound to Barnes through his XO, Bethea, who

immediately conveyed the information to Barnes.

I accept plaintiff’s implicit proposition that if the CBS

defendants broadcast Barnes’s statement knowing that

6la

it was false or probably false, they would be liable even

though Barnes uttered the words. But this statement

cannot operate as a vehicle for liability because it does

not satisfy the threshold requirement of falsity.

The clear thrust of Barnes’s statement is that Herbert

never personally reported war crimes or atrocities to

him. The full exchange follows:

“LANDO: Did Colonel Herbert ever formally or

informally report any war crimes or atrocities to

you?

“BARNES: He himself never did to me. Abso-

lutely not. If he had, I would have taken the same

action I did when I learned of atrocities anywhere.

If they are under my responsibility, I would have

court-martialed the man responsible for it, as I told

every replacement that came into the brigade.” {em-

phasis added).

The existence vel non of personal reports by Herbert

to Barnes or Franklin was significant because of the

strong ad hominem attacks made by Herbert upon his

two superior officers in Soldier and his statements to the

media. Pursuing this theme, the program turned immedi-

ately from Barnes’s denial to a comparable denial by

Franklin that Herbert had ever reported war crimes or

atrocities to him.

Plaintiff says Lando knew Barnes’s statement was

false because Lando knew “that Herbert had reported

POW mistreatment at the An Khe compound to Barnes

through his XO [executive officer], Bethea, who immedi-

ately conveyed the information to Barnes.” But report-

ing personally to one officer is not the same as reporting

personally to another. The element of falsity is lacking.

That conclusion is reinforced by Herbert’s sworn testi-

mony on November 4, 1970 to an Army CID agent (El-

dridge Reply Affidavit, Ex. A):

62a

“MR. SNYDER [CID agent]: Did you ever per-

sonally report any of the aforementioned incidents

to BG BARNES, CG, 173d Airborne Brigade?

“LTC HERBERT: No. General BARNES made

it known that all reporting wou'd be done through

Colonel FRANKLIN, if they were tactical and

through the XO, whom he described as ‘Chief of

Staff’, for administrative matters.”

On the threshold issue of falsitv, Herbert’s CID testi-

mony is inconsistent with his litigation position that

Barnes’s statement—‘“he [Herbert] himself never did

li.e., reported! to me’”—was false.

But even if I were to regard Herbert’s report to Bethea

as the functional equivalent of a report to Barnes,

thereby branding Barnes’s statement as false, there is

no genuine issue on actual malice.

According to Herbert, the incident in question occurred

in early January 1969. Herbert was acting Inspector

General (“IG”) of the brigade. While at Fort McPher-

son on November 5, 1970, Herbert gave a statement to

the Army CID. He alleged that a master sergeant Booth,

assigned to his IG section at An Khe, reported to Herbert

that he had witnessed the maltreatment of Vietnamese

detainees at a compound by military police. Herbert says

he went to the compound, ordered the military police to

desist, and called Lt. Colonel John D. Bethea, the brigade

executive officer, at brigade headquarters at Bong Son

to report the incident. Herbert said Bethea ordered him

to come to headquart. rs. Herbert did so. He handed his

notes of the incident to Bethea, and recommended to

Bethea that a full scale investigation be made. Herbert’s

CID statement then says:

“He told me to wait and he would discuss it with

General BARNES. I waited outside of the General’s

aide’s office. I saw BETHEA walk off toward the

General’s trailer located about 50 yards away. I did

63a

not see him enter the trailer. About 5-10 minutes

later BETHEA returned and he told me that I

would not conduct an IG investigation that an in-

vestigation would be conducted through other than

IG channels—and it was no longer my concern.”

The CID file (Lubell affidavit, E, G) also contains an

undated, unsigned statement from Bethea which plain-

tiff’s brief (at 93) says Bethea “refused to sign on ad-

vice of counsel.” Bethea’s statement corroborates Her-

bert’s telephoned and personal reports to him concerning

the An Khe incident, and adds: “I consulted with Gen-

eral BARNES, CG, 173d Abn Bde, concerning the allega-

tion of maltreatment of An Khe and he approved my

recommendation of having the matter investigated by an

investigations officer.” Plaintiff accordingly argues that

Bethea, in that statement at least, supported Herbert’s

claim thet Barnes learned of Herbert’s An Khe report

through Bethea.

However, this material was not available to Lando at

the time of the program. It is common ground that the

Army CID investigation files were not released by the

Army until plaintiff and the CBS defendants forced

their partial disclosure in Freedom of Information Act

(“FOIA”) litigation during pendency of the case at

bar. Lubell affidavit at { 40, p. 30. There is no evidence

Lando had this information available to him at the time

of the program, or the article. Herbert’s book Soldier

did mention Bethea in connection with unrelated inci-

dents, and Lando personally interviewed Bethea about

them. But Lando’s notes of the interview (PX 109) con-

tain no indication that the An Khe reporting incident

was known to Lando or commented upon by Bethea.

There is no basis in the record for a finding of actual

malice in respect of Barnes’s statement. Accordingly it

is not actionaable.

64a

{b) On the program and in the article, in answer

to Wallace’s questions, Franklin stated that Herbert

“never” reported war crimes or atrocities of any

nature to him “In no way, either orally or in writ-

ing. I had many conversations with Colonel Herbert,

we discussed many things but never war crimes.”

Lando knew, however, that Herbert had discussed the

An Khe mistreatment with Franklin and that Frank-

lin conceded Herbert “possibly” discussed with him

mistreatment of the Vietnamese by American ad-

visors and ARVN forces.

The discussion in plaintiff’s brief about Lando’s indi-

cated knowledge (pp. 94-95) shows that the source of

that knowledge was testimony Franklin gave at the hear-

ing into Hevbert’s war crime charges against Barnes.

As noted supra, this testimony was not available to

Lando when he researched and prepared the program,

although he had attempted to obtain such material from

the Army. Obviously Franklin’s testimony at the Burnes

investigation is irrelevant to the state of Lando’s mind at

the time of the program. Plaintiff does not point to any

evidence suggesting an earlier acquisition of this informa-

tion by Lando.

Furthermore, Franklin’s account of the An Khe inci-

dent at the Barnes hearing was that Herbert recounted

to him “something he had seen that was bad.” Lubell

affidavit, Ex. F, Franklin at 7389. The incident as re-

called by Franklin in his testimony involved “MPs...

putting U.S. Soldiers in a front leaning-rest position.”

Id. at 7389-7396. Even if the Barnes file had been avail-

able to Lando—and it was not—there is no evidence that

tne discussion rose to the level of a report by Herbert to

Franklin of a “war crime” or “atrocity.” On the con-

trary: Herbert’s detailed charge sheet against Frankiin,

executed at Fort McPherson on March 15, 1971, which

lists Franklin’s failures to report or investigate a series

of war crimes, makes no mention of the An Khe incident.

65a

There is no proof of actual malice at the time of pub-

lication of Franklin’s statement in the program or the

article. This statement is not actionable.

(ec) Wallace stated, “Several men serving under Her-

bert said they had heard Herbert-say, while in Viet-

nam, that he had reported the February 14 killings,

but none were certain that he had actually reported

them.” In fact, both Lando and Wallace knew that

(1) not several, but many men while in Vietnam

heard Herbert say he had reported the Cu Loi kill-

ings; (2) many men heard, in addition, Herbert’s

warnings that war crimes and atrocities, like Cu Loi,

were absolutely prohibited; (3) several men had

not only heard Herbert say he had reported the Feb-

ruary 14 murders but several men themselves heard

or saw Herbert reporting the killings. (emphasis in

original).

Wallace made the quoted statement at the time when

the program was focusing upon whether or not Herbert

personally reported the Cu Loi incident to Franklin in

Vie‘nam on February 14. Just before making the quoted

statement, Wailace had confronted Herbert with Frank-

lin’s check to the Ilikai Hotel in Hawaii, dated February

14. Herbert responds to that document; and Wallace

then makes a series of comments from which the state-

ment presently under consideration is taken. I quote

that exchange, emphasizing the words which Herbert con-

tends contain a knowing false statement of fact:

“HERBERT: I can probably find you a hundred

checks that I have either dated for another reason,

wrote after the fact, misdated, what have you. I

don’t know. All I know is I saw Ross Franklin there

and talked to him. I know that. I know what I saw.

I know what I aid. And I stick by it and I still say

66a

it. And I swear to it and I’ve sworn to it under

oath and I’ll swear to it again, you know?

“WALLACE: In his book, Colonel Herbert writes

that there are several people who can testify that

Franklin was in Vietnam on February the 14th. We

asked Herbert for the names of those men. We con-

tacted almost every one of them. None could con-

firm Herbert’s claim. Several men serving under

Herbert said they had heard Herbert say, while in

Vietnam, that he had reported the February 14 kill-

ings, but none were certain that he had actually re-

ported them.”

Plaintiff’s brief characterizes the italicized statement as

knowingly false on three grounds, which I will consider

in turn.

First, it is said that both Lando and Wallace knew

that “not several, but many men while in Vietnam heard

Herbert say he had reported the Cu Loi killings.” This

criticism turns on the distinction between “several”

(Wallace’s word) and “many” (the word preferred by

Herbert). The distinction between “several” and “many”

has both objective and subjective overtones. A journalist

who states that “several” people attended a track meet

could be fairly charged with false reporting if he knew

that 100,000 fans had filled the stadium. On thé other

hand, several minutes listening to Beethoven may feel

like many minutes in the dentist’s chair. Plaintiff’s brief

(pp. 37-53) discusses the individuals he has in mind in

criticizing Wallace’s choice of word. In this particular

context, I conclude that plaintiff’s criticism is nothing

more than a quibble.

Secondly, plaintiff argues that both Lando and Wallace

knew that “many men heard, in addition, Herbert’s warn-

ings that war crimes and atrocities, like Cu Loi, were

absolutely prohibited.” The difficulty with this criticism

is that it has nothing to do with the subject matter of

67a

Wallace’s statement. The pertinent portion of the pro-

gram addressed whether or not Herbert had “actually

reported” war crimes or atrocities to his superior officers.

Herbert’s warnings to his men that war crimes and

atrocities were prohibited does not bear on that issue at

all.

Finally, plaintiff argues that both Lando and Wallace

knew that “several men had not only heard Herbert say

he had reported the February 14 murders but several

men themselves heard or saw Herbert reporting the kill-

ings.” (emphasis in original). The last phrase of this

criticism at least focuses upon the issue raised by Wal-

lace’s statement.

The discussion in plaintiff’s brief of the pertinent evi-

dence (pp. 37-53) lays stress upon six individuals. I will

first consider their evidence, and then the effect of that

evidence upon the issue of actual malice.

The first is Sgt. Wallace W. Warden, who at the time

of the Cu Loi incident was platoon sergeant of the Ist

Platoon of B Company in Herbert’s battalion. Lando in-

terviewed Warden at Ft. Benning, Georgia in December,

1972. Warden has submitted an affidavit in opposition

to the present motions. In that affidavit he describes his

interview by Lando. Lando showed Warden selected por-

tions of Herbert’s book Soldier and asked Warden if the

accounts were accurate. Warden cannot presently re-

member all the portions Lando asked him about, but he

said they were accurate. But Warden does recall that

Lando asked him specifically about the incident at Cu

Loi. In his present affidavit, Warden says that he de

scribed to Lando the capture by his platoon of a number

of prisoners. Warden’s intent was to take the prisoners

back to base. However, South Vietnamese troops arrived,

accompanied by an American lieutenant advisor. They

took over control of the prisoners, whereupon the South

Vietnamese began shooting the priscners. Warden de-

68a

scribes himself as running to tell Herbert about it, Her-

bert being “about 3 or 4 minutes behind our platoon.”

Affidavit at 2. Herbert was very angry, came to the

clearing, “screamed at the [American] lieutenant,” and

told him he wanted no more killing. Warden’s affidavit

then says:

“He [Herbert] told me to go to the rear and get the

remaining people out of the area and be sure nothing

happened to them. He said he was going to call on

the radio and he went to the radio and did so. I told

Mr. Lando that he was very mad when he went to

call on the radio.”

Plaintiff’s brief (at 39) also refers to a statement

given by Warden in November 1970 to the CID that

Herbert had seen the four male prisoners on the ground

and “he got on the radio and called somebody and reported

the incident.” That, of course, is a version more helpful

to plaintiff on the present issue than what Warden says

in his affidavit he told Lando in December of 1972. But

it is common ground that Warden’s CID statement, AHX

94, was not available to Lando at the time of the program

or article, having been obtained by Herbert through FOIA

proceedings. Herbert deposition at 2394-95.

The second individual is Larry W. Kahila. Kahila

served as a helicopter pilot with the brigade during the

pertinent time. He was given an affidavit in opposition

to defendants’ motion.

In that affidavit Kahila states that during the Cu Loi

action, Herbert had three helicopters working with him,

cne piloted by Kahila. Kahila says that he flew Herbert

into the Cu Loi area. Herbert landed, and Kahila flew

above the action. After flying around for a time, Kahila

landed his aircraft and, according to the affidavit (7 3,

p. 2}, “Colonel Herbert boarded and immediately got on

the radio.” The affidavit continues:

69a

“T know he was talking to someone at Brigade Head-

quarters. The radio net was set for Brigade com-

munication. I monitored the beginning of the call and

I believe he was talking to Colonel Franklin because

he used Colonel Franklin’s call sign when he got on

the radio. While I can no longer recaii at this time

what Colonel Franklin’s call signal was, I do spe-

cifically recall Colonel Herbert using Colonel Frank-

lin’s call signal. From what I could hear at the be-

ginning of the conversation, the voice that Colonel

Herbert was talking to sounded to me like that of

Colonel Franklin. Shortly after Colonel Herbert

started to talk, I had to switch off to another net.

When Colonel Herbert got on the helicopter and

when he was speaking on the radio to the person I

believe to have been Colonel Franklin, he was very

upset and angry about something that had happened

to the prisoners. He ordered me to get him back to

Brigade Headquarters as quickly as possible.”

Kahila’s affidavit also states that as soon as he landed

the helicopter at the landing pad at brigade headquarters,

“Colonel Herbert jumped out and hurried off to the

brigade headquarters building.”

Lando interviewed Kahila several times by telephone.

In Kahila’s affidavit (10, pp. 6-7), Kahila gives this

account of those interviews:

“10. In 1972 and early 1973, I recall speaking to

somebody who identified himself as Barry Lando on

what I believe are three occasions. All of these dis-

cussions were by telephone. I specifically recall tell-

ing Mr. Lando that I heard Colonel Herbert call back

to Brigade Headquarters on February 14th, that

Colonel Herbert was very upset at that time, and

that from what I personally heard of the conversa-

tion and his use of Colonel Franklin’s call sign, I

firmly believed Colonel Herbert was speaking to

70a

Colonel Franklin. I also told Mr. Lando about Her-

bert’s comments on the helicopter while heading back

to Brigade Headquarters, about getting it straight-

ened out and ‘that they could not do that.’ I further

told Mr. Lando that I left Colonel Herbert off at the

Brigade landing pad, that the pilots had subsequently

discussed the killings at the mess hall, that Herbert

had told people that it was a crime, that it was com-

mon knowledge that prisoners had been killed at Cu

Loi, and that Colonel Herbert, who was very upset

over it, was trying to have something done about it.

I also told Mr. Lando about the conversation that

Colonel Herbert had with me when he was relieved

from command. I further recall telling Mr. Lando

that Colonel Hervert said his relief was part of Army

politicking resulting from his reporting the Cu Loi

killings and Brigade’s view that what to do about it

had become a problem. While I cannot be certain in

which particular conversation I told Mr. Lando of

these matters, I specifically remember telling him

these things and I believe I mentioned some of them

on more than one occasion. I am certain that I

mentioned to Mr. Lando my belief that Colonel Her-

bert spoke to Colonel Franklin on the helicopter radio

on February 14 more than once.”

The CBS defendants in their reply papers attack the

credibility of Kahila’s affidavit account of what he told

Lando. They base that attack upon seemingly inconsistent

prior statements Kahila made to Charles Morgan, Her-

bert’s civil rights lawyer, and upon Lando’s handwritten

notes of his own interviews with Kahila. Lando discusses

Kahila in his affidavit at { 17, pp. 7-8:

“When I had visited Herbert in Atlanta in March,

I had listened to and made notes from audio tapes of

telephone conversations Herbert and Morgan had with

men concerning the St. Valentine’s Day Massacre

(ante par. 9). One of these men, Larry Kahila, was

Tla

Herbert’s helicopter pilot on February 14, 1969. Her-

bert told me, and it was my initial impression from

listening to the Kahila tape, that Kahila had over-

heard Herbert report the killings from his helicopter

on the radio on February 14. But after rereading

my notes and interviewing Kahila myseif, I realized

Kahila had not heard the radio call and had no first-

hand knowledge. Although he told me that he thought

that Herbert had reported the killings, his belief was

based upon the fact that he had observed Herbert

speaking on the radio on February 14 and that Her-

bert had subsequently told Kahila he had reported

the killings.” (footnote omitted).

While challenges to Kahila’s credibility would be proper

grist for defendants’ mill at a trial, I am hardly in a

position to hold that a jury could not accept the account

of his interviews with Lando that Kahila gives in his

affidavit. Defendants’ entitlement to summary judgment

must therefore turn upon other considerations.

The next individual mentioned in plaintiff’s brief (at

41) is Laurence A. Potter. Potter was a lieutenant in

the Army Medical Services Corps, assigned to the 173d

Airborne Brigade. Potter knew Herbert. He has sub-

mitted an affidavit in opposition to the motions. Potter

also gave the CID a written statement on November 21,

1970. That statement was not available to defendanis at

the time of the broadcast. The CID statement describes

an incident which resembles Cu Loi. Potter described

witnessing Herbert preventing a “National Police Force

Unit from shooting some VC prisoners” and Herbert tak-

ing control of the prisoners and sending them to Landing

Zone English under the control of American troops. Potter

was also in a position to testify to Herbert’s adverse i .-

action to the Cu Voi killings and his opposition to prisoner

mistreatment. Potter was never interviewed by Lando.

It is apparent that he was not in a position to testify

concerning the particular point at issue, namely, certain

J |

72a

~ knowledge that Herbert had reported the Cu Loi inci-

dent to his superior officers.

The next individual is Capt. Bill Hill. Hill was one of

Herbert’s company commanders. Lando interviewed him

by telephone in March 1972, taping the conversation.

PX 4. By that time, Hill had given statements to the

CID. Hill was not personally present at Cu Loi; he

monitored the action on his radio. Hill told Lando that:

“I’m almost positive I heard a radio transmission” to

Franklin. Hill added: “You know, I don’t know what he

was ...I only heard the one side. I heard Col. Herbert

reporting it.” Lando asks: “To somebody higher up?”

The following then transpires:

“A. Yes. And you know the next higher com-

mander is either Gen. Barnes or Col. Franklin.

“Q. So it had to be one of the two.

“A. Yes.

“Q. Would this be talking about the killing of the

prisoners?

“A. Yes.”

Later in the interview Hili says: “I said I heard it re-

ported to . . . you know, being reported. I couldn’t say

who it was to.”

Several days later Lando spoke to Hill again by tele-

phone. Lando deposition at Tr. 1957. He took notes of

that conversation. PX 21. According to those notes, Hill

said among other things: “Not sure that Franklin was

there on the 14th,” and: “Did hear Tony on the radio

on reporting superior, doesn’t now remember what my

statement said/it was not in statement.” Lando’s read-

ing of his notes at his deposition, Tr. 249.

These initial contacts with Hill led Lando to write a

memorandum to Wallace dated March 19, 1972 (PX 10).

The introductory paragraphs reflect skepticism on Lando’s

73a

part with respect to the Army’s denial of Herbert’s

charges. The memorandum continues:

“2. The main atrocity Herbert reported was the kill-

ing of four Vietnamese -POW’s and the slitting one

of their—a woman’s throat. The army admits that

most of this—except for the woman—took place. But

they say that Col. Franklin denies having had it

reported to him, and that he was in Hawaii, in any

case at the time—February 14, 1969.

“Over the past week I have talked with officers who

say that 1. Franklin was back in Viet Nam, not in

Hawaii when that took place; 2. they heard Herbert

reporting the case by radio to ‘a superior’ 3. that the

incident was common knowledge throughout the unit.

4. It was also common knowledge that Herbert was

trying to get something done about it.

“There are at least two to three instances where

Franklin lied during hearings relating to Herbert’s

appeal; officers aiso say that Franklin on at least a

couple of occasions tried to discredit Herbert, chal-

lenging his body counts, trying to get officers under

him to challenge Herbert’s accounts. Franklin was

also suddenly relieved himself from command in Sept.

1970.

“One problem is that the key officer in all of this—

who saw Franklin arrive back at his base, and also

heard Herbert report in—has been willing to talk

to me in confidence—but would not surface publicly.

He is afraid. He says he would tell all this under

oath in a court room, or pre-trial hearing with lawyer

in attendance. He claims he did tell at least some of

it to army investigators.

“That kind of evidence alone would seem to be more

than enough to move such a case into at least a full

pre-trial preceding [sic]. The army never did. Why?

They also never questioned another former chopper

74a

pilot who says Herbert told him he was going to

report the case to Franklin, then got on the chopper

radio. (He never heard the transmission). But,

again, this man was not even questioned by the

army.”

The “key officer” referred to in the fourth quoted para-

graph is Hill. Pursuing his inquiries, Lando interviewed

Hill in Oklahoma on December 5, 1972. His notes of that

interview are PX 138. Lando showed Hill copies of Her-

bert’s book and asked him to comment. Lando’s notes

quote Hill: “As best 1 know H reported it. At least on

battalion net I heard someone.”

In a later conversation on March, 16, 1973 (see notes,

PX 143), Hill said of Franklin: “1 didn’t say I saw

him there. I said I thought he was there. Hell I thought

he was, but there was no way to be certain, always run-

ning around see him every few days. When I sat down

to think about it I couldn’t be certain.”

In his affidavit at 18, Lando deals with his interviews

with Hill as follows:

“In early March 1972, Herbert and I had spoken by

telephone to Capt. Bill Hiil, one of Herbert’s com-

pany commanders. It was my first impression that

Hill was certain Franklin was in Vietnam on Feb-

ruary 14 and that Herbert had reported the killings

by radio to either Franklin or Barnes on that day.

When I called Hill later that month he stated he was

not sure Franklin was in Vietnam on February 14,

although he still thought that he had heard Herbert

report the killings over the radio that day. I told

Herbert what Hill had said. Herbert said Hill’s un-

certainty was rooted in his desire to protect his mili-

tary career. In July 1972 Herbert told me that Hill

had told him he recalled seeing Franklin with a par-

ticular Brigade officer on February 14 in Vietnam.

After receiving the book in galley form (ante par.

7Tba

14), I called Hill to check out some of Herbert’s

claims. Hill agreed to see me and I flew to Oklahoma

in December to interview him. Hill stated in this

and subsequent interviews that neither the Army nor

his concern for his military career had influenced his

recollection of the events of February 14, 1969. Hill

just could not be sure that Herbert had reported to

Franklin on February 14. Although he had heard

someone mention the killings on the radio, he could

not be sure that--what_he_had heard was a report to

Brigade headquarters nor could he be sure that the

person he heard on the radio was Herbert at ail.

Hill also denied Herbert’s story about his having

seen Franklin with a Brigade officer on February 14.”

Hill has submitted an affidavit in support of defend-

ants’ motion. He states at {] 5:

“Regarding the February 14, 1969 incident at Cu

Loi, as 1 told the CID, I did not take part in that

operation. I do recall hearing someone say on the

radio on February 14, 1969, ‘The white mice* are

killing them on the beach,’ or words to that effect.

I do not know on what net I heard this, nor did I

hear any response to this radio report. The tran-

script of my telephone conversation with Herbert

and Barry Lando, which conversation took place in

or around March, 1972, gives the impression that 1)

I definitely heard Herbert reporting the killings to

either Col. J. Ross Franklin or Gen. John W. Barnes

on the radio on February 14, 1969: and 2) I was

sure Franklin was in Vietnam on February 14, 1969.

That impression is incorrect. As I pointed out to

Barry Lando during my conversations with him in

March and December 1972 and January 1973, there

was no way I could be certain that: 1) it was Her-

“*T understand the term ‘white mice’ to mean the Viet-

namese National Police.” ;

aces pene 4

76a

bert reporting on the radio on February 14, 1969

and that the radio report was to Franklin or Barnes;

and 2) Franklin was in fact in Vietnam on that date.

Plaintiff next discusses a series of statements made by

Major Jack Donovan. Donovan was Herbert’s battalion

intelligence officer. Lando interviewed Donovan in 3jai-

gon in January 1973, one month before the program was

aired. Lando’s affidavit (21 at p. 10) describes that

interview :

“In a background interview with CBS in Saigon in

January 1973, Donovan emphasized that Herbert was

a ruthless individual who would not hesitate to lie to

preserve his own reputation. He cited Herberi’s ver-

sion of the killings at Cu Loi as an example. Ac-

cording to Donovan, Herbert did not mention any

‘atrocities’ at Cu Loi until several days after the in-

cident and then only when his body counts were

called into question. Donovan also told us that to

his knowledge no atrocity report was ever filed. Al-

though Donovan would not consent to a filmed inter-

view, he directed us to his statements which were on

file with the Army.”

These statements were ones which Donovan gave to the

CID. Unlike most of the CID files, Lando was able to

obtain Donovan’s statements before the program was

broadcast. They are in evidence at PX 82, 83 and 84.

Read cumulatively, they are bewildering.

Donovan gave his first statement to a CID investiga-

tor on December 9, 1970. He stated succinctly that he

had no actual knowledge of any war crimes committed

during his service in Vietnam, including “mistreatment

of detainees’; and that he had never received any infor-

mation concerning war crimes “from any source that I

consider reliable, therefore, I have no hearsay informa-

tion concerning war crimes to report.” PX 82.

77a

A different CID investigator interviewed Donovan on

May 16, 1971. On that occasion, Donovan signed a state-

ment (PX 83) which describes Herbert reporting to him

the details of the Cu Loi incident immediately after it

happened. Herbert and Donoven then went to brigade

headquarters. Donovan stated to the CID investigator on

May 16, 1971:

“I do know for certain that LTC HERBERT re

ported the killing of the six detainees (or approxi-

mately six detainees) to COL FRANKLIN but I do

not recall if HERBERT reported the incident to

FRANKLIN immediately following the combat ac-

tion. At that time, I was in Brigade Headquarters

with LTC HERBERT checking on intelligence infor-

mation. I was standing about five feet from the loca-

tion where FRANKLIN and HERBERT were talk-

ing when I heard HERBERT tell FRANKLIN about

the detainees being lined up and shot by Vietnamese

forces. I do not recall HERBERT making mention

(illegible). HERBERT was talking directly to

FRANKLIN and, in my opinion, FRANKLIN could

not help but hear what HERBERT had said. I do

not recall FRANKLIN’S response if, in fact, he made

a response or reply to the allegation. The informa-

tion relative to the detainees was part of a continu-

iv* conversation between the two and I did not hear

a response from FRANKLIN. This conversation took

place following the incident, but I cannot say when

or how long after the action. Roughly, I would say

it was no Icager than a month following the action.”

This statement, predictably enough, triggered a third

interview between the CID and Major Donovan. On June

23, 1971 a third CID investigator asked Donovan to

explain the “apparent contradiction” between the two

prior statements: the first saying that Donovan had

neither seen nor heard of, inter alia, mistreatment of de-

tainees, and the second giving full details with respect

78a

to Herbert’s report of the Cu Loi killings to Franklin.

Donovan thereupon launched into an elaborate explana-

tion and “clarification.” Donovan stressed that the con-

versation he overheard occurred some time after the Cu

Loi action. He then says this:

“The circumstances being that I was at Bde HQ

with LTC HERBERT and LTC HERBERT had en-

tered the S-3 office and I had passed the office and

entered the TOC radio complex and was standing

5-10 feet from the wall separating the S-3 office and

the TOC. I overheard a conversation taking place be-

tween LTC HERBERT and an individual I thought

at that time to be COL FRANKLIN. At no time did

I hear the individual make any specific statement

but just based upon the sound of his voice I deduced

it was COL FRANKLIN in the office, although I

never specifically saw the individual and only heard

a limited amount of the conversation. I was never

told by LTC HERBERT that he talked to COL

FRANKLIN at that particular time. What I did

hear was LTC HERBERT making remarks to the

individual about persons being shot on the beach by

the National Police at Cu Loi. Prior to this trip to

Bde, LTC HERBERT had been talking extensively

about Cu Loi and that people were lined up and

killed and that a war crime had been committed.

During this particular conversation with the individ-

val, the way in which LTC HERBERT related the

individuals being shot was in a form that seemed

to me to have been reasonably clear that there was a

war crime in a sense that people were lined up and

shot, but this was largely due to the fact that I heard

LTC HERBERT mention it on several occasions.

Thinking back, LTC HERBERT did not make it

abundantly clear he was reporting a war crime, but

in fact seems to be a reiteration by LTC HERBERT

of the facts concerning the accuracy of his body

79a

counts and weapons captured. Prior to this trip,

LTC HERBERT’S word was apparently being dis-

puted by Bde concerning the exact results of this

contact at Cu Loi. In particular, the advisors to the

National Police had disclaimed any weapons being

captured and that the body count was exaggerated.

In my opinion, the conversation was more of a jus-

tification of his report concerning the action at Cu

Loi rather than the specific intent of conveying that

a war crime had been committed.”

This effusion prompted a series of questions by the

CID investigator, the first two of which I quote, together

with Donovan’s answers:

“Q. In your statement of 16 May 71, you indicate

that you did not recall the individual’s response to

LTC HERBERT’S remarks. Did you actually hear

anything said by the individuai to whom HER-

BERT was talking?

“A: I heard no specific words that were said by the

individual that LTC HERBERT was talking to other

than single word acknowledgements of LTC HER-

BERT’S remarks. The tone of LTC HERBERT’S

voice and the manner in general, in which he was

speaking seemed typical of most of the conversations

he had with COL FRANKLIN. Although I did not

pick out any particular words the individual said,

and [ was in a radio room, it was my impression

that this was the sound of COL FRANKLIN’S voice.

At no time did I hear any words spoken by the in-

dividual in response to statements LTC HERBERT

was making.

“Q: Could LTC HERBERT have been talking to

someone other than COL FRANKLIN, or are you

certain he was talking to FRANKLIN?

“A: No, I cannot be absolutely certain that it was

COL FRANKLIN. The tone of the conversation

80a

seemed to indicate to me that it was COL FRANK-

LIN in the office. I cannot rule out the possibility

that LTC HERBERT was reporting a war crime to

COL FRANKLIN. The portion | heard was very

brief, and I was not devoting my compiete attention

to the conversation. Since I cannot say what came

before or after what I heard, I cannot say that LTC

HERBERT was not making a full report to COL

FRANKLIN.”

One can almost visualize the CID investigator shaking

his head and taking a deep breath. He tried once more:

“Q: Would you elaborate on why the information

concerning the Cu Loi incident is stated much more

positively in your statement of 16 May 71 than

stated during this interview?

“A. The information I gave in the initial state-

ment was basically true as I believe it to be; how-

ever, it did convey a higher degree of certainty than

did, in fact, exist. During my interview with the

CID agent, this particular area was not probed very

deeply and as a consequence there was not sufficient

elaboration to place the facts in preper perspective.”

The last utterance from Major Donovan in the record

is the affidavit he gave to defendants’ counsel, submitted

in support of the present motions. Donovan’s “clarifica-

tion” consists of denials which are as inconsistent with

the second of his three CID statements (PX 83) as was

the third of those statements (PX 84).

Of course, all Lando had available prior to the broad-

cast was his interview with Hill, and the three CID state-

ments. Lando says in his affidavit ({ 21 at p. 11) that

those three statements “taken together were contradictory,

vague and ambiguous as to what [Donovan] overheard

and to whom Herbert was speaking.” That is in my

judgment a fair enough assessment. Lanrdo’s affidavit

describes what he did next:

8la

“Nontheless, I confronted Col. Franklin with Dono-

van’s statements. Franklin reiterated that Herbert

never mentioned any killings at Cu Loi to him at any

time and pointed out the internal inconsistencies in

Donovan’s statements. I also questioned Kenneth

Rosenblum about the Donovan statements. Rosen-

blum, a former Army prosecutor who worked on the

investigation of MHerbert’s charges against Gen.

Barnes, said that when Donovan was questioned dur-

ing the investigation he disclaimed overhearing Her-

bert report the Cu Loi shootings to Franklin. Based

upon what Franklin and Rosenblum had told me, the

Donovan interview with CBS, as well as my own

reading of the statements, I concluded that Dono-

van’s statements were not probative of whether

Herbert had reported the St. Valentine’s Day Mas-

sacre to Franklin.”

Finally, plaintiff’s brief (at 48-50) describes a con-

versation which Lando had, after the broadcast but before

sending his manuscript to Atlantic Monthly with Lt. Col.

Ernest Webb. Webb was at the pertinent times the

battalion operations officer. Webb told Lando that within

24 hours of the Cu Loi killings, Herbert and Webb told

a Major Accousti, a brigade staff officer, about them at

brigade headquarters. Of course, in view of the timing

of Lando’s conversation with Webb, plaintiff’s criticism

is limited to the article. Plaintiff claims that Lando should

have referred to Webb’s statement in the article.

The question that arises is whether a reasonable jury

could find, upon clear and convincing evidence, that the

quoted statement was false, defamatory, and made with

actual malice.

The portion of Wallace’s statement under attack, in

respect of men who had served in Vietnam with Herbert

is: “but none were certain that he had actually reported

[the February 14 killings].” ‘None’ means “no one;

82a

not one; nobody.” American Heritage Dictionary of the

English Language (1976) at 892. “Certain” means,

in the present context: “Established beyond doubt or

question; indisputable; confident; assured; positive.” Jd.

at 220. The American Heritage Dictionary adds this note

on usage:

“Certain (adjective) is often preceded by more or

most or terms such as fairly and reasonably, even

though by definition certain is seemingly absolute in

most of its senses. The following typical example is

acceptable on all levels to 83 per cent of the Usage

Panel: Nothing is more certain than an extremist’s

hatred of compromise.” Ibid. (emphasis in original).

It follows from these accepted meanings that if Lando

or Wallace were aware of one—just one—individual who

was certain in his mind that Herbert had personally

reported the Cu Loi killings to Franklin, either on the

day of the action or subsequently, the quoted statement

would be actionable. It is the existence of such knowl-

edge on the part of Lando and Wallace that plaintiff

alleges in his brief, when he argues that “Lando and

Wallace knew that .. . several men themselves heard

or saw Herbert reporting the killings.”

Does the evidence bear out this assertion? We put

aside at once the statements of Warden and Laurence

Potter that were available to the CBS defendants at the

time of the program. (Warden’s statement to the CID

must be disregarded on the ground of nonavailability.)

The closest Warden’s affidavit comes to the issue is this

statement: “I told Mr. Lando that he [Herbert] was very

mad when he went to call on the radio.” This does not

bear directly upon what Herbert said or who he said it

to. As for Potter, his proffered testimony does not touch

on the issue at all.

Within the context of the program, we are thus left

with Kahila, Hill and Donovan. In Hill and Donovan, we

83a

are confronted with Army officers whose initial state-

ments were relatively helpful to Herbert on the issue,

but whose subsequent utterances, proffered as “clarifica-

tion,” represented substantial retreats, backtrackings,

and changes. Nor, at least in the case of Donovan, can

Lando be fairly accused of leading the witness or failing

to report accurately what he said. Donovan’s reversal of

field in respect of the Cu Loi incident appears from his

three earlier CID statements which, while available to

Lando before the broadcast, had not been influenced by

him in any way.

One may plausibly argue—indeed, Herbert does so—

that Hill and Donovan told the truth the first time, and

then changed their stories because of Army pressure or

concern for their careers. But there is no evidence that

Lando knew this to be so. The fact of the matter is that

Hill’s and Donovan’s more recent statements introduced

elements of ambiguity and uncertainty into narratives

which, in their earlier forms, were more positive. Lando

could not disregard these professed uncertainties, even

though one might doubt that they were genuine. That

is to say: Lando could say in the program that Hill and

Donovan were “certain” that Herbert had reported the

Cu Loi kiliings to Franklin or Barnes only if Lando ac-

cepted what the witnesses had first said, and disbelieved

their more recent utterances. But there was no obligation

in law or fact for Lando to make that evaluation. In-

deed, had Lando ascribed such certainty to Hill or Dono-

van in the light of those witnesses’ recantations, he could

have faced an action for false statement hy them. In

short: a reasonable jury could not find with convincing

clarity that Lando acted with actual malice in disregard-

ing Hill and Donovan as individuals who were “certain”

Herbert had reported the Cu Loi incident to Franklin.

This leaves us with Kahila. Viewing the evidence in

the light most favorable to plaintiff, on the basis of

Kahila’s affidavit, the jury could find that Kahila is:

84a

“. . . certain that I mentioned to Mr. Lando my

belief that Colonel Herbert spoke to Colonel Franklin

on the helicopter radio on February 14 more than

once.” (emphasis added).

Kahila’s own choice of words illustrates the difference in

concepts, and preserves Wallace’s quoted statement from

the charge of falsity. There is a difference between “cer-

tain” and “believe.” I believe that God exists; but, God

help me, I am not certain of it. Cf. Mark, 9:24. Indeed,

this is a distinction plaintiff’s brief recognizes. On an

unrelated point, plaintiff states (p. 94 n. * * *): “Bethea

believed, but could not be certain, that Barnes had merely

signed the report and forwarded it to higher head-

quarters.”

As an alternative ground for criticism, Herbert argues

that responsible journalism required Lando and Wallace

to refer to t:.c Donovan statements in the program. Affi-

davits are submitted in support of that proposition. For

example, Stephan Lesher, a professional writer and re-

porter, argues in respect of the Donovan statements:

“Given that a basic issue considered by the ‘60

Minutes’ piece was whether Herbert had reported

war crimes to his superiors in the Brigade, there is

no way tuis information could have been properly

ignored in the broadcast, and yet no mention of the

statements was included.”

Omission from the program of reference to the Donovan

statements, plaintiff argues in his brief (48), “raises a

fundamental question of whether defendants failed to

conduct themselves as responsible journalists .. .” But

this is beside the point. What the program should or

Should not have included in the exercise of “responsible

journalism” is not an appropriate subject for legal chal-

lenge or judicial review. I will accept that the quoted

statement would have more fully reflected the fruits of

CBS’s investigation if it had said something like this:

85a

“Several men serving under Herbert said that they

had heard Herbert say, while in Vietnam, that he

had reported the February 14 killings, but none were

certain that he had actually reported them, although

in one statement a Major Donovan had indicated

such certainty before apparently changing his mind

in a later statement.”

One may sympathize with Herbert’s contention that

CBS should have said something along these lines. But

the decisive fact is that there is no evidence that the

statement as phrased was false or made with actual

malice.

Finally, Webb’s statement to Lando (post-program but

pre-article) does not bear on the issue. As noted, Her-

bert’s claim at issue was whether or not he reported the

February 14 killings to Franklin. The article’s treat-

ment of this dispute appears on p. 78. Lando writes:

“In Soldier Herbert claims there are several people

who had seen Franklin in Vietnam on February 14.

We asked Herbert for names. Not one of these

people, in the Army or out, on the record or off,

could back up Herbert’s claim.”’

Lando then discusses Hill as the “key person” involved.

Webb’s statement was to the effect that, shortly after

the incident, Herbert reported it not to Colonel Franklin,

but to Major Accousti. That is not inconsistent with

Lando’s assertion. Compare the analysis of the Barnes-

Bethea report under sub-point (a), supra.

These statements are not actionable.

I will discuss the next two alleged false statements

together. They relate to CBS’s investigation into whether

or not Herbert reported the Cu Loi killings directly to

Franklin in Vietnam on February 14. As the previous

86a

discussion has shown, this is a significant bone of con-

tention between the two officers. Herbert insists he did

so. Franklin insists he was at a Honolulu hotel on Febru-

ary 14. Lando and Wallace concluded, sensibly enough,

that unlike many of the disputes where all they had was

one man’s word against another’s, contemporary docu-

mentation might exist to help resolve this particular one.

Hence the search for and production of the Ilikai hotel

bili and Franklin’s cancelled check.

Against that background, Wallace made two state-

ments on the program which plaintiff argues, in the

passages from his brief quoted below, constituted know-

ing defamatory falsehoods:

“(d) Wallace stated that Franklin’s check for his

Hawaii hotel room was ‘for the exact amount of the

hotel bill’ (Pr.Tr. 6), while the urticle stated that the

check was made out ‘for the exact amount of the final

bill, down to the last penny’ (Art. p. 77). Both

Lando and Wallace knew that Franklin’s check was

not for the ‘exact amount,’ but $25 less than the

hotel’s final bill.”

* + 7 *

“(e) On the program, Wallace stated: ‘Checking

with the Ilikai Hotel in Hawaii, we found that

Colonel and Mrs. Franklin had indeed been registered

there from February 7 to late in the afternoon of

February 14’ (Pr.Tr. 6). CBS knew that the Ilikai

records revealed that either Col. or Mrs. Franklin

left on February 13 or ‘early the 14th,’ but not

which, and Lando considered it a ‘toss-up’ as to

which was the case.”

To assist Herbert in resisting summary judgment,

these statements, viewed in their surrounding cireurn-

stances, must be shown to have been false; defamatory of

Herbert; and (with convincing clarity) to have been made

by defendants with actual malice.

87a

The point at issue, as Wallace made plain during this

segment of the program, was whether or not Fra

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