KOPPEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01070R000301530014-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: January 8, 2010
• Sequence Number: 14
• Publication Date: January 10, 1985
• Content Type: OPEN SOURCE

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ABC NIGHTLINE
10.January 1985
KOPPEL: Good evening. I'm Ted Koppel,' and this is~Nightline. IAN SHOALES:
Sticks and stones might break the bones, but it's the printed: word that brings;
in the lawyers.
KOPPEL:. And more recently, it's also,brought in the kind of public figures
we're not used to seeing in multimillion-dollar libel suits,"Gen. William
Westmoreland and Israel's former Defense Minister Ariel Sharon to name just
two.
Is it an effort at intimidation or just an attempt to keep an increasingly
powerful news media accountable? We'll talk with a leading media critic, Mobil
Oil Vice President Herbert Schmertz-, and with New York Times columnist Anthony
Lewis. We will also hear more from satirist Ian Shoales
ANNOUNCER: This is ABC News-Nightline. Reporting from . Washington,. Ted Koppel.
KOPPEL: It is, when-you.think about it, kind of a cockeyed scheme.. The idea
was to send out this letter to approximately 1 million. people, identified as
conservatives, urging them to buy up-CBS stock. The letter dated 11 days from
now, that is Jan. 21, was drafted, printed.up over the signature of North
Carolina Sen. Jesse-Helms and urged the stock-buying program so that
conservatives could, and this is a quote, '-if necessary, take control of that
network, CBS, and become Dan Rather's boss.' SEN. JESSE'HELMS (R-N.C.): I say
that I think we've hit a nerve, however.
VOICE OF UNIDENTIFIED FEMALE REPORTER: A nerve, however, ah, in what way?
HELMS: Well, all the calls. Barbara says we've had a number of calls today.
That's good, but I'll talk to you later on about .it.
VOICE OF UNIDENTIFIED FEMALE REPORTER: What, that's good, how? What what's.
the-
ur
ose?
Wh
i
it
p
p
it,
that's fine.
y
s
good? HELMS: Well, if the people are interested in
KOPPEL: Well, a North Carolina newspaper, the News.and Observer of Raleigh,
got
hold 'of a copy of the letter, _printed it, and whether it will now actually be
sent out, nobody is saying, at least not in Sen. Helms' office.' But it does
underscore the level of frustration that many people feel with the media.
Whether it's buying a controlling interest in CBS.in order to muzzle its
principal news anchor or taking the media to court, there is a growing sense,
as
Nightline correspondent Jeff Greenfield reports, that someone ought to do
something about us.
VOICE OF UNIDENTIFIED MALE:
Live at 5.
UNIDENTIFIED MALE REPORTER (1982): The U.S. Justice Department is
investigating
the Green administration; including the mayor himself, for allegations of
bid-rigging contracts and possible kickbacks amounting to $50,000.-
GREENFIELD: It sounded like a terrific scoop for Philadelphia TV?.Station WCAU.
There was only one problem., It wasn't true. ?
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WILLIAM GREEN (former Philadelphia mayor): I am telling you your-story is
false
and malicious. And I am, one, not under investigation., and I will tell
everybody here that I have never.....
UNIDENTIFIED MALE REPORTER: That's'the real question I'm after.
GREENFIELD; The next day, the station apologized-to the-mayor.,
UNIDENTIFIED MALE REPORTER: We. really try very hard every night to be accurate
and objective and not to make mistakes. In the case of the one aspect of. the
story, Mayor Green, we made a mistake.
GREENFIELD: But Mayor Green wanted more than an apology. He sued Channel 10
for libel and settled for a reported $250,000. GREEN: Well, I mean, I, I
think
if they cross the line, they error (sic), if they, in.effect, violate the law,
if, if they are subject to legal sanctions as a result of the egregious
conduct,
just like public officials should if they're corrupt or do whatever, they' they
should pay the price and the penalty.
GREENFIELD: At times these days, it seems as if'a parade of prominent public
figures is seeking to bring the press before the bar'of.'justice, asking damages
for libel: former Vietnam Commander Gen. William Westmoreland suing CBS News,
former Israel Defense Minister Ariel Sharon suing Time magazine, South Dakota
Gov. William Janklow suing author Peter *Mathison, United States Sen. Paul
Laxalt suing a chain of California newspapers. The press expects public
officials to live by the maxim of Harry Truman.''If you can't stand the heat,
stay out of the kitchen. Free speech, we've always said, means that public
debate is going to be rough, sometimes unfair, even malicious.' What public
officials and their allies are now arguing is''a new premise, that the media
themselves have grown so powerful, so unaccountable that the-only remedy even
for visibly powerful men and women lies not in the court of public opinion but
in the courts of law. ' FLOYD ABRAMS (First Amendment lawyer): I think what's
in
the air is the-sense that the public may be ready for the press to be punished,
not the judges or not just the judges, but that the public may find it
acceptable, even attractive that the press be cut.a few pegs down and the
so-called liberal press in particular.
GREENFIELD: Ironically,, this spate of suits comes 20 years after the Supreme
Court, in the landmark New York Times against Sullivan case, appeared to make
harder for public officials,to win libel.suits. The' court said that these
officials had to prove that what was said about them was not simply false and'
defamatory but'was-either knowingly or recklessly false. Are these suits-today
an attempt to. intimidate the press? Journalist Nat Hentoff: NAT HENTOFF-
(journalist): Self-censorship is one of the, ah, the-most pervasive phenomena
in our business, especially when people are getting very edgy about libel. All
this begins to sort of seep. There's no big chill, you know, - the so-called
chilling effect. It's just a little frost. GREEN: I. believe that the
Constitution was meant to chill the lie,, to freeze. it?dead. And, ah, and
you're
given certain legal remedies.whe.n you have.been egregiously wronged, and you
should exercise them. .
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VOICE OF UNIDENTIFIED MALE (ABC News): Did the Central Intelligence Agency try
to have Ronald Rewald killed to keep him'from talking? -
GREENFIELD: This ABC News report last September added a new dimension to-the
debate. The Central Intelligence Agency, angered over a report alleging a
possible agency threat on the life of a rogue employee, filed a Fairness
Doctrine complaint before the Federal Communications Commission. The agency
argued, in effect, that it had been libeled. ABC later backed off from its
allegation, citing doubts about its source,, Scott Barnes.
PETER JENNINGS (ABC News): So ABC news has now concluded that Barnes's charges'
cannot be substantiated, and we have no reason to doubt the CIA's denial.
GEORGE-CLARKE (CIA associate counsel): The issue in this,case is not
or whether
how much CIA has been damaged, although we certainly don't like what was said
about us. The issue in this case is the public's right . to be fairly and
adequately informed under the First Amendment.
GREENFIELD: So essentially, what, what you're looking for then is not to put
ABC News outta business but... CLARKE: To give it, a slap on the wrist.
GREENFIELD: ABC News executive David Burke. DAVID BURKE (ABC News vice
president): I find something disquieting in a government agency, especially an
agency like the Central Intelligence Agency, appealing to another government
agency, which is a regulatory agency and has control over our very economic
life, on the question of our news judgment.
GREENFIELD: Today, the FCC dismissed the agency's complaint, finding no
evidence that ABC had knowingly distorted the story.
organizations get all the publicity, libel suits ar?e felt with particular force,
at small news organizations like the Main Line Chronicle in suburban
Philadelphia. Its entire editorial focus has been changed by its owner because
of libel suits. A few years ago, the Chronicle was a feisty,.muckraking
weekly.
Now, after losing six-figure libel verdict, the Chronicle has become a
showbiz-oriented, noncontroversial paper. IRV LIBERMAN
Chronicle): I will always feel this'way, probably, that Iuhave,1ethat aInhavee-
(
abandoned part of being, part of the privilege of being in the'newspaper
business in afree country like the United States of America.
GREENFIELD: Liberman says his insurance carrier almost dropped the Chronicle
from libel protection. And the weekly Philadelphia paper, Welcomat,'facing
several big libel suits, found its insurance suddenly canceled and had'to
scramble for cover. DAN ROTTENBERG (editor, Welcomat): And had we not been
able to replace that coverage, we'd just have to give up the format we have now i
and go back to being a very con, conventional, pedestrian weekly newspaper, I
guess publishing press releases and things like that.
GREENFIELD: Bruce Fein, who was a lawyer with the Federal Communications
Commission, says this misses the point. BRUCE FEIN (former FCC lawyer.):
What's
at issue is the right of the press basically to lie. That is, should the press
be guaranteed legal. immunity knowingly and intentionally to lie? GENE ROBERTS
(The Philadelphia Inquirer): It...'(unintelligible)...the American system, and
Continued
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we are tampering in the last three or four years that has et,dured"and kept this
country great for 180 years. And we are gonna regret it, ah, ah, very,-very
seriously, in. my opinion:
GREENFIELD: A free press is supposed to protect the public, its right to facts
and to wide-open debate about its country. Are these libel suits a threat to
that right or a necessary check on a` press that has run roughshod over-the
rights of-public citizens? This is Jeff Greenfield for Nightline in New York.
KOPPEL: When we return, we'll talk live with Mobil Oil Vice President Herbert
Schmertz. His company has taken out special insurance to permit its top 100
executives to sue for libel without the worry of legal fees. And with New York
Times columnist Anthony Lewis, who says something strange'is happening to libel
suits in the United States.
KOPPEL:- With us now live from Los Angeles, Herbert Schmertz, vice president
for
public affairs of the Mobil Oil Corporation and one of the nation's most
outspoken and articulate media critics, and in our Boston bureau, Anthony
Lewis,
New York Times columnist, who has written frequently about libel law and its
potential abuse as a means of intimidating journalists.
KOPPEL:' Tony, some of those who argue against the right of prominent public
officials to sue journalists say these prominent public* officials have the
opportunity to make their own point of view known in more or less the same
form.
That was not, however the case, was it with Gen. Westmoreland? No one was
really paying any attention to this retired general'. ANTHONY LEWIS (the New
York Times): Well, in fact, after the matter became controversial because of
a,
an article in TV Guide criticizing the CBS program, CBS offered Gen.
Westmoreland, as I recall, 15.minutes of unedited air time in order to reply.
And, as. you know, that's a lotta time on television. He turned it down and
sued
instead.
KOPPEL: But that was way, way, way into the process, wasn't it? LEWIS: Yes,
it was some months after the program. That's true.
KOPPEL: So if a 68-,.69-, 70-year-old general feels, 'Maybe I don't have the
time to wait around for the media to spend a year or two years or three'years
catching up with my right to respond,'.and that his reputation, he obviously
felt, has been damaged.during that period,' why shouldn't he have the right to
go
to court? LEWIS: Well, what strikes me about all this,, and not you so much, Ted, as the, the other people, is how unhistorical it is, what a radical changei
it is from the American tradition. You know, far worse. things were said about"'
George Washington and Thomas Jefferson and Abraham Lincoln or; more?recently,
Earl Warren than were said about Gen. Westmoreland, and. they didn't sue. They
did the job they were there to do and they bore it on the Truman.
heat-in-the-kitchen theory.
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KOPPEL: Well, Herb Schmertz, is.it just that.our, our public officials are
less
tolerant than they once were;, or is it that, particularly because of
television" .
more people are hearing some of these libelous or nonlibelous statements?
SCHMERTZ: Well, there's no doubt that the press is substantially more powerful
than the times that Tony was talking about, but his historical reference 'isn't
exactly right. Thomas Jefferson, when' he was president, filed'a libel suit.
He
lost it, but he filed a libel suit, and Thomas Jefferson was one of the great
defenders of the right of people to file libel suits in the state courts. But
I
think what you have since' 19614 'with the Sullivan case is a new kind of
journalism: I think.that the journalists felt' that the Sullivan case gave them
an.immunity as a result of the tremendous burden that claimants would have, but
they felt could just about do anything they wanted. And I think you have?
emerging now a feeling on the part of-the press that they're somehow above the
law, that. they can make false statements about people, that they can damage
people, and they don't have to suffer the consequences.
KOPPEL: Hold on just a second. Yeah, if I may, let me just interject another
question to Herb Schmertz. If you say that they feel they can-make, knowingly
make untrue statements about people, that, in asense, comes pretty close to
proving the malice that would still make them vulnerable to a libel suit,
wouldn't it? I can't, I can't really. believe that,you think the'responsible
news organizations in this country knowingly go around telling untruths.' Do
you
believe that? SCHMERTZ: Well, well,-Ted, I think the Sullivan case gave them
a
feeling that it's almost impossible, because of the cost and burden, for a
-plaintiff to win a case. 'Now what's happened is plaintiffs have proved that
they can win cases, so now people like Tony Lewis are saying, 'We have to find
another way of handling these,' and-he really wants to go to the law of the
jungle., get these out of the courts and substitute some sort of a jousting test
whereby the, the, the aggrieved would. look to the person who caused the problem
to solve it. It just seems to me. very simple that .1 don't see how protecting
falsehood helps in the search for truth. It just doesn't make sense.
KOPPEL: All right. I'm gonna, I'm gonna pull back to a neutral corner.. Go,
Tony. LEWIS: Thanks, Ted. You know, I repeat, I repeat how amazing. it is to
hear these radical suggestions coming.from you, Herb, and offering them as if
they were the conservative view. You know, we had a ,law in this country...
SCHMERTZ: I don't know what those words mean. LEWIS: Back in 1798--that's a'
.while ago--Congress passed a .law doing what you want to do, to shut-up the
press. It was called the Sedition Act, and it punished false and malicious
.statements about the president, members of Congress, and so on, and-.Jefferson
and Madison thought it was unconstitutional, and the Supreme Court has so said.
And the reason is simple. In this country, we have an open-debate. Sometimes
it's abusive.. It's different from other countries, but when it comes to public
officials and policy, it',s free and open. Now,, I'd like to ask... SCHMERTZ:-
Conbmw
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Let me read you what... I want to read you what Jefferson wrote to Abigail.
Adams about the very law you're talking about. LEWIS: Oh, we all...
SCHMERTZ:
6,
"Nor does the opinion of the unconstitutionality.and consequent nullity of the
law remove all restraint from the overwhelming torrent of slander which is
confounding all vice and virtue, all truth and falsehood in the United States
now.", (All talking at once.)
KOPPEL: Hold it! Gentlemen, I.'11 tell you what. As the lawyers like to say,
let it be stipulated that Thomas Jefferson was one hell of a fella. Why don't
we hear... SCHMERTZ: Well, he said..-
KOPPEL: Why don't we hear from Herb Schmertz and Tony Lewis. I want to*know
what you guys think, not what Jefferson said 200 years ago. SCHMERTZ: But
he's
wrong about Jefferson, Ted. LEWIS: Ted, I'd like to put this one. The truth
is, of course, that Jefferson, though-he detested the press as,president, was
prepared to?bear it. That's the difference. But now let's.add to this, Herb,
my point about how the radical change is coming from you *guys,. not from the
press. The Sullivan case. In that?case 20 years ago, the anti-civil rights
people, the white supremacists in the South, decided to use libel suits as a
new
political weapon. They sued the New York Times, this one fellow, for $500,000
because of an ad that made trivial mistakes., saying, for example; that Dr. King
had been arrested seven tines in Alabama instead of four, and on the basis'of
those trivial mistakes, a jury awarded $500,000. to Commissioner Sullivan.
That's what went to the Supreme Court, a suit not designed to repair
reputation,
but a political lawsuit designed to'keep the press... SCHMERTZ: And a
political decision, a political decision by the court, which. had no precedent
and reversed the 1954 *Bonhausen case, where Frankfurter said that defamation.-
.
is
not a_protected act under the Constitution. LEWIS: Well, there you have it.
KOPPEL: ? Gentlemen, excuse me. I'm, I'm gonna invoke the MEGO factor.
M-E-G-O. _
Mine eyes glaze over. You're, you're, you're startin' to
you're
hit me with all these legal decisions. What I really want to knowsisrwhat is
going on in America today. LEWIS: All right. I'll tell you what's going on.
SCHMERTZ: The press, the press is finding out that the immunities they thought
they got under Sullivan are really counterproductive to them because they're
finding out that people can win lawsuits. I Just have one simple question for
Tony. How does the protection of falsehoods lead to the finding.of truth? It
just doesn't... I.don't understand that. It's like sayin' that'a doctor-who
leaves a.sponge in.an appendix is not gonna be liable?and'that's gonna lead to
better operations later. LEWIS: I wish Madison were alive to answer that
question for you, Herb. SCHMERTZ: Well, he's not, Tony, so'it's yours.
KOPPEL: Don't'. Let's stick, let's stick with 1984. You answer h.is question.,.
LEWIS: The answer is that in our system, we know .there are no'-absolute truths.
We' have a combat, a competition of'different views. That's what America's all'
Con ued
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about, because there's no one person who can tell you, 'That's true; that's
false.' We have a clash of views. (All talking at once.)
KOPPEL: Hold it just a second, Herb. SCHMERTZ-, That's what juries, 's
what juries are for. that's
Let me interrupt one more time, and then I really will step back
again.
Tony, I want ybu to take the other point of view now. I want you to take a
look
at us in the media. Are we too big?. Are we too arrogant? Are we taking too
much for granted? Do we deserve to be taken down a couple of'pegs? And you
know that there are 48 million people out there right now saying, 'You bet you
are!' LEWIS: Well, as they say, ,I'm glad you asked that question. 'Cause it",
happens I'm very critical of the media, and I happen to care a lot about
reputation. I believe in its protection. I think it's important. And when I
see Mayor.Green,-I'm with him, and he sued for an amount that reflected a
concern for reputation, $250,000. When Sen. Laxalt sues for $250 million, he's
not interested in reputation, in my judgement. He's out to intimidate the.
press, and that's the difference. Of course we can' be arrogant. Of course we
make mistakes. But 'I know from the people that I've seen in the?media that we
.~
try our best to do an honest job
and
moreover
w
i
,
,
,
e cr
ticize each other a lot,
and I think maybe more freely than the peo
le in
th
p
e Mobil Corporation
criticize
.
each other.
KOPPEL: All right. Now, Herb, you make the same kind of effort to take it
from-
the other point of view. * You've got lots-of friends' in the media, and you know
we're not.a bunch of, of *twits, by and. large..SCHMERTZ: Right. There's no
doubt that the vast majority of the media are hard worki
ng, decent, dedicated
people, but it is also true that there has emerged a type of journalism that
thinks that' they really are above the law, and thee are some journalists who-
feel that really they, they, they should have or do have this kind of immunity.
KOPPEL: Are you also prepared to concede that there are some people now in
government, in big business who are really, trying to scare the dickens out of
the media? SCHMERTZ: No, I will concede that there are people in big
government and big business who want. to chill a certain kind of thing. They
want to chill untruths, and I think'that's fine. I mean, all the media has to
do is tell the truth and there's no problem. LEWIS: Ah, if only truth were
that easy to define. SCHMERTZ: Well, that's what, that's what we have juries
for. LEWIS: I'd,'I'd like to say one word about the word big. People have....
And
- - -- --- ---- . ~..~,...a, iv?y, zu go aneaa. LEW15: OK.
it's this. Sure, some'media are big. A lot of little papers', as we heard
before, have been hurt. But why do we have big media. In part because we have
big government, government a thousand times bigger than Madison and Jefferson
knew, with immense power over all the citizens, and the only check on it is a
stronger press. .?
- Corgi
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KOPPEL: All right. 'Herb, you got, you got the last word. SCHMERTZ: Well, I
don't think that's why we have big media. We have big media because the big
media conglomerates are. buying up all the small companies. More small
newspapers have been put out of business by big media companies than by any
libel suit.
KOPPEL: All right. On that chilling note, let me thank you both. Herb
Schmertz,.Tony Lewis, it was good of you to join us. When we come back,
another
view on libel suits from satirist Ian Shoales.
KOPPEL: We asked satirist Ian Shoales to take a look at the topic of libel
suits for us, and in his commentary, he poses this-question. Is protecting
your
reputation really worth the fuss?
SHOALES: My high school principal threatened me once with a libel suit. He
wouldn't relax the dress code, so I called him a fascist in the high school
paper. I don't why he got so upset. When I-called my parents fascists, all
they did was kick me. out of the house. This was the '60s, of course. The
principal let it drop. I .got a hair cut and moved back home. But it just goes
to show the life of. a social critic isn't all beer and skittles.. Sticks and
stones might break the bones, but it's the. printed word that brings in the
lawyers, which makes me wonder. What is honor in the modern world? When you
say, 'That insults me,' does it really mean, 'My lawyers think I have a good
case.' Does prestige come with a legal retainer? Can a blush be entered as
evidence? A damaged reputation is a rich-man's burden once avenged with duels,
and I enjoy the image of Gen. Westmoreland and the,60 Minutes crew taking
measured paces with pistols at-dawn, but those dueling days are gone, and the
days when the word had cutting power is gone too. Take the bizarre case of
Falwell versus Flynt. I don't hold Rev. Falwell as a role model, though he
certainly has a reputation to uphold, but how can anything-said by Mr. Flynt
possibly affect that reputation? .How seriously can you take Hustler's opinion.
on anything? Take the National'Enquirer. CAROL BURNETT (actress): It is
.disgusting, and it is a pack of lies.
SHOLES: Suing them is like calling a liar a liar. You're not fooling anybody.
or changing anything. You're only translating your embarrassment into a court
settlement, and. it's the lawyers 'who get most of the blood from the stone of
libel suits. All of this 'Just goes to show, I'M. glad I'm not in hi
gh school
anymore. I'm too old, for one thing' I don't have a lawyer, for another.- And
it shows that those who say-the pen is mightier than the sword are liars. 'Ask
yourself. Would you rather be called 'nasty names,in the newspaper or pierced
with a sharp instrument? 'No-contest. I don't care what you call me. I've
called myself worse. Compared with; the real problems of.the world, humiliation
is a minor and temporary inconvenience. Only now in these.self-indulgent'times
is personal embarrassment considered a tragedy. 'That.!s my.opinion. If you
don't like it, sue me. I gotta go.
KOPPEL: That's our report for tonight. I'm Ted Koppel.in Washington. For all
of us here at ABC News, good night'.
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