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Law School Case Brief

Westmoreland v. CBS, Inc. - 596 F. Supp. 1170 (S.D.N.Y. 1984)


Although a reporter may have sufficient evidence of his charge to foreclose any material issue of constitutional malice for its publication, he may nonetheless make himself liable if he knowingly or recklessly misstates that evidence to make it seem more convincing or condemnatory than it is. If, for example, a publication asserts falsely and without basis that the charge was confirmed by an eyewitness, if in the editing process it distorts statements of witnesses so that they seem to say more than in fact was said, or if it falsely overstates a witness' basis for his accusation, these might raise triable issues of constitutional malice in spite of a sufficient foundation for the constitutionally protected publication of the basic charge.


Defendants CBS, Inc., and certain of its employees prepared a television documentary report that, inter alia, asserted that plaintiff General William Westmoreland had conspired to suppress and distort intelligence as to the size of the enemy forces in order to substantiate his optimistic reports on the progress of the Vietnam War. General Westmoreland filed a complaint for libel against defendants. Defendants moved for summary judgment, arguing that it enjoyed absolute immunity dictated by the First Amendment from a libel action brought by a high public official challenging commentary on his performance of the duties of his office.


Was the broadcast network and its journalists entitled to summary judgment?




The district court denied the defendants' motion for summary judgment, holding that the question of whether the network was entitled to absolute immunity for its commentary on a pominent military  general, a public figure, was better based on the experience of a full trial record. The court found that the heart of the documentary centered on accusations that the general ordered his officers to give false reports evaluating intelligence data and that such an accusation of misconduct was clearly outside the absolute privilege provided for expressions of opinion. The court held that certain instances of the editing and presentation of evidence reported in the documentary sufficiently raised such triable questions of knowing or reckless falsity to foreclose summary judgment on the issue of constitutional malice. The court held that to win a denial of summary judgment, the general was not required to demonstrate that his evidence was sufficient to sustain a verdict.

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