Reckless Disregard: Westmoreland v. CBS et al.; Sharon v. Time

by Renata Adler

A trained lawyer who served with the House Judiciary Committee during the Watergate investigation and a respected critic, Adler analyzes the libel cases of Sharon vs. "Time" and Westmoreland vs. CBS

Genres: History, Nonfiction, Law

243 pages, Hardcover

First published October 12, 1986

About the author

Born in Milan, Italy, Adler grew up in Danbury, Connecticut after her parents had fled Nazi Germany in 1933. After attending Bryn Mawr, The Sorbonne, and Harvard, she became a staff writer-reporter for The New Yorker. She later received her J.D. from Yale Law School, and an Honorary Doctorate of Laws from Georgetown University.

Adler’s essays and articles have been collected in Toward a Radical Middle (1969) and A Year in the Dark (1970), Reckless Disregard (1986), and Canaries in the Mineshaft (2001). Renata Adler is also the author of two successful novels Speedboat (1976) and Pitch Dark (1983). Both novels are composed of seemingly unconnected passages that challenge readers to find meaning. Like her nonfiction, Adler's novels examine the issues and mores of contemporary life.

In 1987, Adler was elected to the American Academy of Arts and Letters. That same year, she received an honorary doctorate from Georgetown University. Her "Letter from Selma" has been published in the Library of America volume of Civil Rights Reporting. An essay from her tenure as film critic of The New York Times is included in the Library of America volume of American Film Criticism. In 2004, she served as a Media Fellow at Stanford's Hoover Institute.

Reviews

[Lobstergirl · Rating 5 out of 5]

In 1984-85, New Yorker reporter Renata Adler attended, and covered for the magazine, two concurrent civil trials in Manhattan federal court: General William Westmoreland's suit against CBS for a 60 Minutes special program asserting that he had conspired to conceal or lie about enemy troop strength in Vietnam, and Ariel Sharon's suit against Time for an article claiming he had discussed with Lebanese Christian Phalangists the need to take "revenge" for Bashir Gemayel's assassination, shortly before the Phalangist massacre of Palestinian and Lebanese refugees at the Sabra and Shatila camps in Beirut in 1982.

In addition to being a journalist, Adler was also a Yale Law School graduate, and a superb writer. Her style immediately reminded me of Janet Malcolm, another master of the long-form style of journalism the New Yorker (sometimes) excels in. The book jacket compares Adler's courtroom reporting to that done by Rebecca West and Hannah Arendt, and I'd have to agree. The book jacket summary, in fact, is excellent. I couldn't possibly do a better job summarizing.

The legal issues involved are libel and the First Amendment. Adler shows how both CBS and Time, and the powerhouse law firm they both used, Cravath, Swaine & Moore, essentially abused the intent of freedom of the press, digging in their heels and refusing to budge, insisting their original reporting in both cases had been correct, even as the pre-trial depositions and the trials showed this was hardly the case. Both CBS and Time, of course, had multiple opportunities to settle, but neither did. Would it be spoilerly to tell you how the cases ended? Look away now, if you don't want to know! Libel in U.S. law is extremely hard to prove. In Sharon v. Time, the jury found that Time's reporting had been false, but that there was not "actual malice" aimed at Sharon. Conceivably this could be seen as a split decision, since only if actual malice had been found would the issue of damages then been addressed. But it was certainly a moral victory for Sharon. And Time ended up having to answer to an Israeli court as well.

Oddly, because the trial seemed to be going quite well for him, Westmoreland dropped the suit against CBS before things wrapped up. This seems to have been done at the urging of one of his lawyers, which seems like terrible legal advice. The other lawyer, whom Adler finds superior, was not consulted.

The media does not come off well here. I was reminded of United States v. Libby, where prosecutor Patrick Fitzgerald slyly pointed out at every opportunity how virtually every representative of the media involved in the trial had won a Pulitzer at some point, yet their reporting was either wrong, or misleading, or horribly scumbaggy in some fashion. Adler has a wonderful paragraph which, when I get a few free days, I'd like to cross stitch onto a sofa pillow:

As early as the first depositions in Sharon, it was evident that witnesses with a claim to any sort of journalistic affiliation considered themselves a class apart, by turns lofty, combative, sullen, lame, condescending, speciously pedantic, but, above all, socially and, as it were, Constitutionally arrogant, in a surprisingly unintelligent and uneducated way. Who are these people? is a question that would occur almost constantly to anyone upon reading or hearing the style and substance of their testimony. And why do they consider themselves entirely above the rules? These people were, to begin with, professionals, accustomed to speak with finality, never questioned except by their bosses; otherwise (in a field that, unlike, for example, true scholarship, suppresses second thoughts and confirming, or contradictory, inquiry) accustomed, in what they said or wrote, to being believed. In addition, these people had, in recent years, the power and glamour of the byline, and the contemporary notion of journalists as, in effect, celebrities bearing facts. What they were intellectually was in some ways surprising: better educated than their predecessors, they were not remarkable for their capacity to reason, or for their sense of language and of the meaning of even ordinary words. Nonetheless, they appeared before the courts not like any ordinary citizens but as though they had condescended to appear there, with their own conception of truth, of legal standards, and of what were to be the rules. As for "serious doubt," it seemed at times unlikely that any of these people had ever entertained one - another indication that "serious doubt" cannot long continue as a form of "actual malice" in the law. What was true and false also seemed, at times, a matter of almost complete indifference to them. Above all, the journalists, as witnesses, looked like people whose mind it had never crossed to be ashamed.

It's crystal clear from Adler's reporting that perjury was committed repeatedly on the stand, and in their depositions, by these journalists. Even the lowliest of them - Time's fact checker - came across as sneering and haughty. Although the jury did not find that Time had libelled Sharon, they requested from the judge, and were granted, permission to read after the verdict a rather extraordinary statement critical of Time: "We found that certain Time employees, particularly correspondent David Halevy, acted negligently and carelessly in reporting and verifying the information which ultimately found its way into the published paragraph of interest in this case."

The two primary malfeasors - George Crile, who produced, wrote, misleadingly edited and spliced, and in every way crafted the scurrilous piece for CBS, and David Halevy, who invented multiple sources out of thin air and lied repeatedly in depositions and on the stand about them, went unpunished. Instead, Crile became a producer for 60 Minutes, and Halevy was transferred from Time's Israel to its Washington bureau.

[Michael Galperin · Rating 3 out of 5]

alternates between completely brilliant and practically unreadable

[Dylan Matthews · Rating 4 out of 5]

This book is a reaction to a conventional wisdom in the press and political life of mid-1980s America that I of course did not experience directly and which Adler only partly tries to convey in her rebuttal to it. The specific points it makes and defends are clear enough, and its case on each is overwhelming:

- In 1982, CBS aired a program called “The Uncounted Enemy,” reported by George Crile and Mike Wallace, that alleged a conspiracy by the military (including the commander of US forces in Vietnam, William Westmoreland) to artificially downplay the rate of North Vietnamese infiltration into South Vietnam in late 1967 and early 1968, and that this conspiracy contributed to the Tet Offensive’s propaganda victory and American defeat in Vietnam.

- That program was, top to bottom, nonsense. There is no evidence of any such a conspiracy, or indeed of the massive North Vietnamese infiltration that it alleged was covered up. Crile manufactured his case through jawdroppingly dishonest manipulation of tape, coaching of interviewees, and elision of debunking evidence.

- In 1983, Time Magazine, relying on reporting from David Halevy, alleged that, the day after Lebanese president-elect and Christian militant Bashir Gemayel’s assassination the previous year, Israeli Defense Minister Ariel Sharon visited Gemayel’s father and brother and urged them and their Falangist forces to seek revenge. This led to the infamous Sabra and Shatila Massacre of Palestinian civilians in refugee camps in Beirut.

- Halevy, generously, was totally mistaken, or less generously outright fabricated this claim, attributing it to a secret appendix to an Israeli government report that, in reality, said no such thing.

(You can actually read the full appendix now, courtesy of the New York Review of Books. You can see for yourself on page 31, point 18, that it does not show in any way that Sharon "discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir," as Time had alleged.)

In each case, the aggrieved party (Westmoreland and Sharon), a retired general, sued their libeler in federal court. In each case, the media outlet was defended vigorously by Cravath litigators. In each case, the media outlet, despite clearly having promoted falsehoods, won: in the Westmoreland case through a settlement hugely beneficial to CBS, and in the Sharon case through a jury verdict that concluded that Time’s piece was false and defamatory but not indicative of actual malice.

It is impossible to finish the book without agreeing with Adler that Crile and Halevy are horrifically incompetent journalists at best and mendacious liars at worst. But what, in 2025, are the stakes in this?

I was not remotely surprised that Crile behaved as a hack in this case, as he behaved as a hack in producing “Gay Power, Gay Politics,” one of the most spectacularly bigoted pieces of network news reportage of the 20th century, including claims like “one in ten deaths in San Francisco are from gay men doing BDSM” (not murders or accidental deaths — deaths period!) that anyone with half a brain should’ve dismissed as obviously preposterous.

Nor should anyone familiar with the Harvey Weinstein and Theranos cases be surprised to read about the dishonesty and unprofessionalism with which Crile and CBS News’ lead attorney, David Boies, pursued their defense.

I had no familiarity with Halevy before reading this book, but was not particularly surprised that a reporter relying on supposed secret sources wound up reporting something false. Halevy’s flippancy in response to his editors’ skepticism, and his contradictory explanations in depositions and testimony as to where exactly his claim originated, are somewhat surprising, and certainly discrediting. But in all honesty, “Ariel Sharon encouraged Lebanese Christian war crimes against Palestinians” is a claim with some immediate plausibility. It seems to have been false but I’m not surprised a reporter thought it was true.

Despite these unsurprising elements, there were stakes all the same. Adler wanted to rebut a conventional wisdom that favored the media outlets and celebrated them as heroes of press freedom and saviors of the First Amendment, and that ignored the actual factual issues in favor of mood-affiliating with the anti-Vietnam-war and anti-Israeli-aggression sides.

To observe that Westmoreland did not, in fact, pull off a massive conspiracy to deceive Lyndon Johnson is, of course, not to defend the Vietnam War or Westmoreland’s conduct in it. Westmoreland was a terrible commanding general who worsened an indefensible war. Sharon, similarly, bears moral responsibility, even if indirect, for failing to do everything in his power to prevent the Sabra and Shatila Massacre. But we can hold these beliefs without persuading ourselves of things that are simply not true, and without pledging fealty to charlatans like Crile and Halevy who obviously do not deserve it.

That, I suppose, is the ultimate virtue of the book. It is, in a roundabout and hyper-specific way, a sustained argument for the proposition that the actual truth about public affairs exists, matters, and must be defended regardless of who benefits from its discovery and promotion. More specifically, it’s a devastating look at how the practices and norms of modern civil trials, and libel trials in particular, conspire to minimize the importance of the truth in itself.

Early on, Adler notes just how bizarre it is that, under Supreme Court libel jurisprudence, plaintiffs must show that the falsehoods their libelers promoted were subject to “serious doubt” within the news organization. This created the obvious and perverse incentive, at play in both trials, to portray the journalists in question as beyond any doubts, as totally certain, as never wondering whether they got the story right. To win, Adler notes, the journalists have to act as though they have none of the virtues that a good journalist ought to have: self-questioning, skepticism, a willingness to admit error.

I will confess that, even as a fan of Adler’s writing style, the increasingly byzantine twists and turns of the two cases’ depositions and trials, and their witnesses’ many contradictions of themselves and each other, became challenging to follow. The need to track two trials at once compounds the difficulty, as does Adler’s fondness for long sentences full of parenthetical and subsidiary clauses. This, for instance, is one sentence:

Among the program’s problematic judgments were: an account of the private, critical briefing of Westmoreland, by Hawkins and McChristian, which never took place (there were in fact three and possibly four separate briefings, none with just those three participants, and none of which corresponded to the program’s account); an account of a single meeting between civilian and military intelligence analysts, at which CIA participants “capitulated” to the “dishonest” military estimates (when there were in fact three meetings; the CIA ��dictated” the estimates that were agreed to; and the military estimates were honestly arrived at, and proved fairly accurate); in the end (and most significantly), an account of enemy infiltration into South Vietnam in the five months before Tet, which explicitly accused Westmoreland of having suppressed and vastly understated the rate of infiltration, when in fact Westmoreland not only had not but could not have misrepresented the figures, since the rate of infiltration was being accurately monitored, by what was referred to throughout the trial as Source X (the National Security Agency), and the “estimates” thus came not from Westmoreland’s command at all but from Washington, before they ever reached Saigon; an account of a meeting between President Johnson and some of his closest advisers, the Wise Men (known more formally as the Senior Advisory Group on Vietnam), which portrayed none other than Sam Adams as the hero, in that the Wise Men, having finally accepted Adams’ estimates of enemy troop strength, told the President that the war, after the American defeat at Tet, was hopeless (when in fact the advisers did not consider estimates at all, and regarded Tet as an immense American military victory, but told the President that American morale at home would not support continuation of the war).

That could have been, I submit, multiple sentences.

But despite that density of fact and argument, it’s a surprisingly easy and pleasant book to read. It is hard to leave it without deep admiration for Adler’s willingness to challenge our profession’s pieties. It is also hard to read it and not think about the recent lawsuit between the President and CBS News, in which, in stark contrast to forty years ago, CBS had done nothing at all wrong and nonetheless agreed to pay out millions. Adler was writing at the apogee of this sort of media institution’s power. That power made them reckless and dangerous. Them in a profoundly weakened state, though, may be even more dangerous.

[Howard Jaeckel · Rating 3 out of 5]

Renata Adler’s “Reckless Disregard” should have been a page-turner for me. Having a strong and longstanding interest in journalistic ethics and libel law, I was something of a buff of the two high-profile libel trials she writes about, which pitted Generals William Westmoreland and Ariel Sharon against, respectively, CBS News and Time Magazine. As the cases played out almost simultaneously in the early to mid-1980s, I avidly consumed motion papers, transcripts and all-available news reports concerning the lawsuits. At the time, I was thoroughly familiar with the facts of the cases and developed the strongly-held view that the reports were at best grossly unfair and at worst published with constitutional malice – that is, in knowing or reckless disregard of their falsity.

That, I was aware, was also Ms. Adler’s view, and I looked forward to reading what I understood to be her scathing demolition of the two reports.

But instead of a rollicking good read, I found her book very difficult to get through, and several times considered abandoning it. Her presentation is exceedingly convoluted and difficult to follow, even with prior knowledge of the cases. Her sentences go on, and on, and on, with profligate usage of commas and parenthetical asides, until the reader has quite forgotten what the sentence, at its outset, appeared to be about. Ms. Adler does not appear to believe in paragraphs, much less chapters or section headings; nor does she deign to provide her readers with a broad overview of complex subject matter before descending into a mire of intricate detail.

Having said that, readers who press on will find that Ms. Adler has devastatingly demonstrated, particularly in her final chapter, the almost unbelievably shoddy and dishonest journalism practiced by two of the giants of the news industry in these cases.

The 90-minute CBS broadcast, titled “The Uncounted Enemy: A Vietnam Deception,” alleged a “conspiracy at the highest levels of American military intelligence” to undercount the number of enemy soldiers that United States forces faced in Vietnam for the purpose of giving the American public, Congress, the Joint Chiefs of Staff, and even the President, a false impression of progress in a war that in fact we were losing. According to the program, this underestimation of the size and strength of the enemy led to unpreparedness for the Tet offensive, the unnecessary loss of American lives and, by implication, ultimate loss of the war. Although CBS later claimed that, because General Westmoreland was not an intelligence officer, the broadcast did not concern him, the American military commander in Vietnam was the clear villain of the piece.

As Ms. Adler shows, this portrayal of what was in fact an arcane dispute as to the importance of certain irregular and parttime communist forces – a dispute that was well known to the Pentagon and the President’s senior advisers – was, quite simply, nonsense. Also without foundation in fact was what the broadcast claimed was the suppression of intelligence about the massive infiltration of North Vietnamese soldiers into the south in the months before the Tet offensive, an infiltration that apparently went unnoticed by anyone, before or after the fact, until the broadcast more than a decade later.

Although when aired the broadcast seemed to present a powerful and virtually indisputable indictment of General Westmoreland, evidence adduced in the litigation showed it to have been based on the obsessive theory of a single CIA analyst and a few junior supporters. Senior intelligence personnel and political leaders who would have disputed the report’s thesis were either not interviewed (sometimes for asserted reasons that were transparently false) or their comments were left on the cutting room floor. Even more shocking, to support the broadcast’s thesis, blatantly deceptive editing was employed to make it appear that some interviewees had said things that they hadn’t.

At issue in Ariel Sharon’s lawsuit against Time was a report claiming that, shortly prior to the massacre of innocent civilians in the Sabra and Shatila refugee camps by Christian Phalangist forces allied with Israel in the aftermath of that country’s 1982 invasion of Lebanon, General Sharon had discussed with the Phalangists the “need to take revenge” for the assassination of a Christian leader. General Sharon’s lawsuit revealed that, despite the claims of Time reporter David Halevy (in startlingly inconsistent testimony) to have had multiple confidential sources for this damning claim, he essentially made it up.

In addition to excoriating the dishonest journalism behind these two reports, Ms. Adler is harshly – and rightly – critical of what can only be described as the total war litigation philosophy of Cravath, Swaine & Moore, the white shoe law firm that represented both defendants. The tolerance of these top-flight lawyers for obvious lying by their clients appeared inexhaustible. One wonders whether the interests of everyone involved— not to mention that of the truth – would have been better served had the lawyers demanded that their clients confront the facts and consider a retraction or settlement.

As essential as a vigorous press is to democracy, a salutary skepticism of journalistic product on the part of the public is also necessary. The records in the Westmoreland and Sharon cases provide a glimpse of two instances in which important reports of two prestigous news organizations went totally off the rails. The story merits telling and study. Unfortunately, “Reckless Disregard” does not tell the story in a way that will be comprehensible and involving to the general reader.

[Sam · Rating 4 out of 5]

Is this a standard text for First Amendment/trial law/journalism students? It should be.

[Christian Schwoerke · Rating 4 out of 5]

Reckless Disregard—Renata Adler
Canaries in the Mineshaft—Renata Adler

In both of these books, Renata Adler shows herself to be an astute observer of news media and a sedulous reader of transcripts. The chief targets in each are reporters whose sense of righteous unassailability allows them to skirt the facts in pursuit of a news story. In Reckless Disregard, Adler examines two libel cases brought against two news organizations (CBS and Time) at the same time in 1985, in which she observes the way in which both organizations refuse to acknowledge that their news reporting could not be confirmed, had no basis in fact, and was shielded with appeals to anonymous sources. Further, as she carefully follows the cases in real-time and via readings of the pre-trial depositions, she observes how news reporting about the trials is curiously oblivious to what is really happening day by day and how reporters are easily misled by obfuscating lawyers and lying witnesses.

Similarly, in several of the essays in Canaries in the Mineshaft, where the cases under consideration are Nixon/Watergate and Starr/Clinton, Adler is able to demonstrate the way depositions and pre-trial documentation are used by lawyers less to clarify than to befuddle; at the same time, she shows how a careful reading reveals contradictions, lies, inconsistencies, and omissions that reveal a wholly buried story that reporters have overlooked. When Adler shows us how she “follows the money” via the documentation surrounding Watergate, it becomes clear why Nixon was prepared to resign rather than face exposure of additional facts that would have unquestionably led to an ignominious impeachment. While Nixon’s crew leaked information to forestall observation of greater crimes, Starr’s crew leaked information to draw attention to extra-legal matters that could make their way into his “report”. On such occasions, Adler points out, news reporters are duped into becoming conduits of (dis)information/innuendo, maintained by reporters guilelessly thinking they are “protecting” their sources.

The final essay in Canaries combines all of these elements: a news organization ready to rise in defense of its own when its news reporting is called into question and the close, penetrating analysis of a text that in plain sight offers up information that refutes the organization’s stance: Adler’s 1999 book about The New Yorker (Gone: The Last Days of The New Yorker) was critical of the book editor at the New York Times (when he was at the New Yorker), and a brouhaha erupted when the Times review of the book cited an incident about another book review. Asked at The New Yorker, when she was a staffer there in 1979, to review former federal judge John Sirica’s ghosted autobiography, she declined, saying she thought that “contrary to his reputation as a hero, Sirica was in fact a corrupt, incompetent, and dishonest figure, with a close connection to Senator Joseph McCarthy and clear ties to organized crime.” When challenged by Sirica's son (a NY Times reporter) and a week’s worth of articles in the Times to substantiate this statement, Adler pointed to the autobiography and demonstrated again how a close reading could reveal facts that lay in plain sight, detailing Sirica’s connections to McCarthy and to bootlegging and illegal boxing.

Bottom line: Renata Adler—in defense of open/honest reporting that does not rely on clandestine/unverifiable “sources”—reads sharply and skewers shoddy reporters/reporting and the sanctimonious news organizations who choose to stonewall to protect their reputation(s) rather than get at the facts behind a story.

[John D. Bennett · Rating 5 out of 5]

This is one of my favorite non-fiction books
and one of two books that I re-read every few years. The other is Eminent Victorians by Lytton Strachey. Adler’s account of two mid-1980s libel lawsuits cleverly and relentlessly challenges assumptions about big media (here, CBS News and Time Magazine) and big law (especially the famous Cravath firm, including the media’s longtime favorite lawyer David Boies). She was ahead of her time with some of these concerns, and today you may not need to be convinced to be skeptical when a media company pompously “stands by its reporting” of a questionable story. The real pleasure of the book is experiencing Adler’s analytical but never dry prose. She approached the book with a lawyer’s mind but with resources of perception and humor and understanding of human nature denied to most lawyers.

[Augustus · Rating 3 out of 5]

I should have loved this book — I have a real weakness for too-analytical New Yorker article series on trials turned into books — but it gets mired in details quickly. I don't necessarily think that the details weren't important or should have been cut, but the book needed a clearer structure or chapter titles or something.

Still, it had a lot of incisive and unsparing criticisms of libel jurisprudence, the press's tendency to unthinkingly close ranks, and the collision of the two into a system with, to repurpose the phrase at the heart of the book, "reckless disregard" for actually finding facts.

[Samantha Franks]

Read for class - interesting as a take on free speech and libel law.

[Taran · Rating 3 out of 5]

A bit up and down and oddly structured, I think from drawing together two long magazine articles. Also quotes maybe a bit too liberally from trial transcripts - a busman's holiday