Herbert v. Lando

• Decision Date: 15 January 1986
• Docket Number: Nos. 569,D,570,s. 569
• Citation: 781 F.2d 298
• Parties: 12 Media L. Rep. 1593 Anthony HERBERT, Plaintiff-Appellant-Cross-Appellee, v. Barry LANDO, Mike Wallace, Columbia Broadcasting System, Inc., Defendants- Appellees-Cross-Appellants, Atlantic Monthly Company, Defendant-Appellee. ocket 85-7014, 85-7446.
• Court: U.S. Court of Appeals — Second Circuit

Page 298

781 F.2d 298

12 Media L. Rep. 1593

Anthony HERBERT, Plaintiff-Appellant-Cross-Appellee, v. Barry LANDO, Mike Wallace, Columbia Broadcasting System, Inc., Defendants- Appellees-Cross-Appellants, Atlantic Monthly Company, Defendant-Appellee.

Nos. 569, 570, Docket 85-7014, 85-7446.

United States Court of Appeals, Second Circuit.

Argued Dec. 12, 1985.

Decided Jan. 15, 1986.

Jonathan W. Lubell, Lubell & Lubell, New York City (Mary O'Melveny, William O'Brien, M. Margaret Terry, of counsel), for plaintiff-appellant-cross-appellee.

Charles Rembar, Rembar & Curtis, New York City (Frank R. Curtis, Mark W. Budwig, of counsel), for defendant-appellee Atlantic Monthly.

Adria S. Hillman, Green & Hillman, New York City (Richard G. Green, Nancy S. Hobbs, of counsel), for defendant-appellee-cross-appellant Barry Lando.

David Boies, Cravath, Swaine & Moore, New York City (Pamela G. Ostrager, and Selene E. Mize, Coudert Brothers, on the brief; George Vradenburg, Ronald Guttman, CBS, Inc., of counsel), for defendants- appellees-cross-appellants CBS, Inc. and Mike Wallace.

Before KAUFMAN, TIMBERS and NEWMAN, Circuit 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 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 publisher, in reality reflect an underlying interest of the public," Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 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 Broadcasting Systems ("CBS"), producer Barry Lando, correspondent Mike Wallace, and the Atlantic Monthly. The prolonged and bitterly contested proceedings have come to a temporary halt upon the granting of partial summary judgment for the defendants and a complete dismissal 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.

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). Because 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 fortunate 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 command in Vietnam because he reported to his superiors war crimes and atrocities committed under the supervision 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 commanded the 2d battalion of the 173rd Airborne Brigade. His superiors were General John Barnes, commander of the brigade, and Colonel J. Ross Franklin, deputy commander of the brigade.

On April 4, 1969, Barnes relieved Herbert of his command of the 2d battalion and reassigned him to the Capital Military Assistance Command in Saigon. Herbert protested his relief from command, claiming it was without justification. In Saigon, he initiated a proceeding pursuant to Article 138 of the Uniform Code of Military Justice, 10 U.S.C. Sec. 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 General's Office. Herbert alleged the 173rd Airborne Brigade 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 Franklin 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 while publicizing his book on radio and television 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 interview 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 correspondent 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 story. Instead, he suggested that Lando seek additional information.

Lando's subsequent investigation entailed interviews with more than 120 people and the examination of thousands of documents. For the most part, the Army cooperated with Lando's inquiries, but it refused to release 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 conferences with Wallace, eventually convinced Lando that the Army had not relieved Herbert of command in Vietnam 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 evening. In his introduction, Mike Wallace reviewed Herbert'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 brutality. 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."

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 involvement 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...