Gen. Westmoreland's suit against CBS could test libel precedent

Another battle in the most controversial war the United States ever fought - and the only one it ever lost - will begin next week in a New York courtroom. But this Vietnam clash will be staged between Americans, not with guns and bullets, but with accusations and affidavits - and vivid verbal reenactments - as Gen. William C. Westmoreland (ret.) takes on CBS in a $120 million libel suit.

Barring a last-minute postponement or settlement, this highly publicized legal action, after a two-year delay, will come to trial in federal court Oct. 9 . At issue is whether the former US commander was libeled by a 1982 CBS Television documentary that accused him of engaging in a high-level military intelligence ''conspiracy'' to underestimate the size of enemy forces in order to convince the US public that America was winning the Vietnam war.

The news special, ''The Unaccounted Enemy: A Vietnam Deception'' has already been the subject of controversy, both within the CBS organization and in other forums, regarding possible violations, in preparing the program, of network guidelines on confirmation of sources' testimony, conclusions made from data analyzed, and the comprehensiveness of the research conducted.

Both sides are expected to present expert government witnesses, including high-level Johnson administration officials, as well as others, who will testify as to the accuracy of the report.

Some observers say a jury, along with assessing the network's actions in terms of the legal definition of libel, could well take into consideration whether it felt CBS acted in a responsible matter. According to standards adopted by the US Supreme Court in a landmark 1964 opinion in the case of New York Times v. Sullivan, a libel plaintiff who is also a public figure, such as General Westmoreland, must prove ''actual malice'' in order to recover damages in a defamation suit. This is defined as ''reckless disregard for the truth.''

In these terms, negligent, or inaccurate, reporting is usually not sufficient to prove libel. But in several recent defamation cases involving the media, trial court juries have found for plaintiffs on lesser standards than ''actual malice.''

But appellate courts in the majority of cases either reversed the verdicts or sharply trimmed damage awards, or both. Studies by the New York-based Libel Defense Research Center (LDRC) indicate while media defendants lose 80 percent of their cases in initial trials, 60 percent of those verdicts are turned around on appeal.

Westmoreland's lawyers say they will prove that the CBS documentary was false and defamatory and motivated by actual malice. They charge that CBS knew it was was presenting an inaccurate picture of the Vietnam troop strengths and military strategy in order to arrive at a predetermined conclusion.

CBS, on the other hand (based on pretrial public statements), seems likely to concede mistakes, oversights, and unintentional bias in the television presentation. But the defendants, in denying libel liability, will doubtless stress multiple checking of information gleaned from sources, including Westmoreland's own staff and those who support his position.

Preparation for this trial has already cost each side more than $1 million. This covers legal documents, witness statements, and other expert analysis, and publicity to gain public support. An estimated 250,000 documents about the war, including some previously classfied, have been gathered as evidence.

The case has significance in terms of possible refinements of the Sullivan standard and libel law. There's enough invested, say onlookers, that it will likely be appealed by the loser all the way to the US Supreme Court. The media received a boost from the high court last term when justices refused to insulate trial court libel decisions from appellate reviews.

But pressure continues from government and some industry sources for legislation and litigation to make it easier for plaintiffs to bring libel actions against the media. Groups like the conservative Capitol Legal Foundation , which is providing General Westmoreland with courtroom counsel, are pushing for libel law reform that would favor plaintiffs.

On the other hand, the American Civil Liberties Union and media rights advocates say that multimillion-dollar libel verdicts against newspapers and broadcast journalists tend to discourage investigative reporting and can even put some small and not-so-affluent media out of business. First Amendment specialist Floyd Abrams is quoted as saying that a Westmoreland win against CBS would ''have an adverse effect on all journalists in America.''

A recent American Bar Association panel noted that ''probing'' journalism has been on the decline recently due to ''megabuck'' libel verdicts against the media and government policies which (in the view of some media spokesmen) border on censorship.

There is also some evidence that media, after a long string of trial court losses, now tend more toward out-of-court libel settlements. Just this week ABC Television came to terms with the head of the Federal Witness Protection Program , who had filed a $10 million defamation suit over an investigative report on ABC's ''20-20'' program. The report charged that Howard Safir, the US Marshals Service official, was lying about, or had been badly misinformed about, the number of witnesses who might have been murdered while under Justice Department protection.