No Case, Colonel

In 1979, when the Supreme Court ruled in the case of Herbert vs. Lando that plaintiffs in a libel suit have the right to probe into a journalist's "state of mind," many in the media bitterly protested. The courts, journalists argued, had become a kind of thought police, who licensed fishing expeditions into editorial decision making that would inevitably chill freedom of the press.

The fears were exaggerated; the news-gathering process does not appear to have frozen up. Moreover, it can be reasonably argued that in order to prove the press has recklessly or knowingly published a false hood--the legal standard that public figures must meet to win a libel case--it is necessary to probe a journalist's thinking.

Now the case of Herbert vs. Lando has taken another twist, one that has press defenders crowing instead of complaining. Last week the U.S. Court of Appeals in New York simply tossed the libel suit out of court. It had begun more than a decade ago, when Lieut. Colonel Anthony Herbert sued CBS, 60 Minutes Producer Barry Lando and Correspondent Mike Wallace for a 1973 broadcast questioning the Colonel's claim that he had been drummed out of the Army for reporting war crimes to his superiors. In a 43-page opinion, Judge Irving R. Kaufman, a member of the three-judge panel, ruled that Herbert had no grounds to take his case to trial. The CBS story, Kaufman wrote, was essentially accurate. To go to trial over some minor unresolved issues would be, the judge wrote, a "classic case of the tail wagging the dog."

The significance of the opinion may be far reaching, according to some First Amendment experts, if it encourages judges to dismiss more libel cases before they turn into long and expensive trials. Since few libel cases ultimately result in large damage awards, it is the cost of trying them, not paying damages, that the press fears and regards as a threat to its free dom. Judge Kaufman's ruling, says Floyd Abrams, a leading First Amendment expert, could "go a long way toward relieving the burden that the recent explosion of libel litigation has brought about."

Sighs of relief may be premature. Herbert, says his lawyer Jonathan Lubell, is considering taking his case to the U.S. Supreme Court. Lubell asserts that Judge Kaufman has long been sympathetic to the press. Indeed, the Supreme Court has reversed Kaufman before in this case, when the judge ruled in 1977 that libel plaintiffs do not have the right to probe a journalist's thoughts. Whether Colonel Herbert's controversial case will finally prove to be a sword to skewer the press or a shield to protect it remains to be seen.