What about libel lawsuits against CBS, some ask — for instance, by Bush himself, by Killian’s heirs, or by General Staudt, who was accused in one of those memos of leaning on Killian?
The Killian lawsuit is easy to dispose of: Dead people can’t sue for libel; that’s the libel rule in all 50 states, to my knowledge (though a few have long-unused criminal libel statutes that cover libels of the dead). Also, it’s not clear that the falsehoods (if they are falsehoods) about Killian are defamatory or constitute false light invasion of privacy (an alternate tort), but in any event it doesn’t much matter because he’s dead.
Bush is obviously a public official. Staudt was once a high-level military officer, which made him a public official and thus a public figure. There’s some suggestion in the cases that public figure status might dissipitate after enough time; but the cases that I’ve seen all point towards the conclusion that former public officials remain public figures indefinitely as to things they allegedly did while public figures. (I think this would apply even if the alleged pressure by Staudt allegedly took place at a time when Staudt had already retired — that goes to the likely falsehood of the statement, but the statement is still an allegation of misconduct while in office.)
So as to both Bush and Staudt, CBS is not liable unless they knew the statements were false, or were aware that the statements were likely false and proceeded in any event (the misnamed “actual malice” standard). I find that extremely unlikely. Even setting aside the moral questions, journalists and news executives must know how horrific for their careers and reputations this sort of scandal might be; and if they knew the statements were likely false, surely they would have been a bit more self-conscious about how suspicious the memos’ formatting would look.
That’s why, if the memos are forgeries, I strongly suspect that everyone at CBS (or conceivably everyone except one or two highly reckless low-level people who were in on the forgery) simply screwed up. It’s a screw-up that might well have been abetted by their political predilections or by a tunnel-vision chase for a hot story. But it was likely an honest, even if unreasonable, error, and that doesn’t suffice for liability in a case involving public officials or public figures and matters of public concern.
What about General Hodges, as Eric Rasmusen asks?
The Washington Times says
One retired Guard official, who was Mr. Killian’s immediate supervisor, Maj. Gen. Bobby Hodges, was offered up by Mr. Rather as one who would substantiate that the memos were real. But yesterday Gen. Hodges told the Los Angeles Times he thought the memos were fake. One CBS executive said the general, a known Bush supporter, had changed his story.
. . . CBS is saying that the General verified forged documents. Moreover, he is a known Bush supporter, which makes him look pretty stupid and treacherous if he validated documents that were forged to hurt Bush. The General says he didn’t do it, though. . . .
The allegation that the General verified the documents, even if false, is likely not defamatory; the allegation that he had changed his story, though, likely is defamatory. They wouldn’t be the strongest claims of defamation, since he’d probably have to persuade the jury that he suffered some specific damage as a result of the statements.
But more broadly, even if the General is no longer a public figure (the statements being made about him are not statements about his alleged conduct when he was still serving), he’s likely a limited purpose public figure. If he talked to CBS News about the documents, he injected himself into this controversy. Even if he was later misquoted by CBS News itself, he’d still be a public figure for purposes of this debate, so that to recover he would have to prove the CBS knew its statements about him were false (or at least knew the statements were quite likely false). Maybe he could prove such knowing falsehood (e.g., they knew that I hadn’t changed my story, so they lied when they said I did change it) plus damages; but that’s what he would indeed have to prove, and showing negligence isn’t enough.
UPDATE: Someone asked what the chances are of getting an emergency injunction in a libel lawsuit against CBS, to make them stop spreading the alleged libel. The answer is that the probability is much zero — see the discussion on prior restraints in this article.
Comments are closed.