Thursday, March 21, 2002
Appeals Court Affirms Part of Dismissal in Defamation Case Against CNN
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday upheld a lower court’s dismissal of a defamation case against CNN, Time magazine’s publisher and Time Warner, Inc. for a story accusing the U.S. military of using nerve gas on Vietnam War-era defectors.
The court also sent part of the case back to the U.S. District Court for the Northern District of Caifornia.
The Ninth Circuit heard the case because it was consolidated with six other cases based on CNN’s Operation Tailwind reports.
The Operation Tailwind report accused the U.S. military of using the deadly nerve gas sarin on a Laotian village in 1970 as part of a secret mission to kill American defectors. Military experts disputed the contention. The report became a major embarrassment for CNN and its corporate partner, Time magazine, which had published a corresponding story based on the investigation.
Robert Van Buskirk appealed the district court’s dismissal of his case, saying the broadcast of the reports and CNN’s later retraction defamed him by describing him as a “primary source” who gave inconsistent statements to the news network and took medication for a nervous disorder.
The court upheld the dismissal of some aspects of the lower court’s ruling, but asked the district court to take another look at CNN’s statements about Van Buskirk’s use of medication.
“They made him the scapegoat for its broadcast,” said Van Buskirk’s attorney, Elihu H. Berman. “Some of the arguments have been turned aside by the appellate court, but nevertheless, he has the green light to go back to court for defamation.”
CNN spokeswoman Megan Mahoney said the network declined to comment.
The court agreed that the reports that appeared on CNN and in Time Magazine were consistent with what Van Buskirk told those who interviewed him for the reports, so there was no defamation there, and it rejected his argument that he was coerced into adopting CNN’s version of events.
CNN retracted its June 7, 1998, report because it couldn’t verify its accuracy, and the network later labeled Van Buskirk as a primary source. He alleged that labeling was defamatory, but the court disagreed.
“His status as a primary source is indisputable,” said the opinion written by Judge Myron H. Bright. “Van Buskirk gave many hours of interviews to CNN and adopted, albeit reluctantly, each of the major points of CNN’s story.”
Inconsistencies between Van Buskirk’s interview statements and the book he wrote, which doesn’t mention nerve gas or defectors, aren’t a basis for defamation either, the court found.
But the appeals court did ask the U.S. District Court for the Western District of North Carolina court to re-examine CNN’s statements about Van Buskirk’s use of medication, which the network made after its retraction. Van Buskirk maintains it was defamatory of CNN not to disclose that the medication he was taking for a nervous disorder wasn’t mind-altering and that he had stopped taking the medication 10 years before the broadcasts.
“It would appear that CNN, in its zeal to shift all blame for its own failure to adequately investigate the Tailwind story, sought to portray Van Buskirk as unreliable by any means available,” Bright wrote.
The case is Van Buskirk v. Cable News Network, 00-16616.
Copyright 2002, Metropolitan News Company