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If CNN’s apology for its 1998 report alleging the use of nerve gas during the Vietnam War was unprecedented, “the consequences should be also,” a lawyer told the Georgia Court of Appeals Wednesday. A military helicopter pilot who participated in the 1970 Tailwind raid seeks the following status: he wants the court’s go-ahead to sue for libel as part of a group, although he was not identified in the broadcast. Attorney Joann Brown Williams asked an appeals panel Wednesday to overturn a Fulton State Court judge’s dismissal last year of a libel and defamation suit against CNN and Time Inc., brought by Barry D. Pencek, a Marine helicopter pilot who participated in Tailwind. Williams asked the three-judge panel to allow a jury to decide whether the pilot who flew commandos on the raid into Laos had been libeled as part of a group — rather than individually — by a 1998 CNN broadcast that the network later retracted. Williams says Wednesday’s arguments are “the first time in over 100 years” that a higher court has been asked to look at what legally constitutes a group versus a class of individuals in the realm of libel law. Each member of a class alleging libel has to prove that he or she has been defamed individually by name, she says. But members of a smaller group, she contends, “don’t have to prove specific references.” Judge John J. Ellington pressed Williams on how her client suffered from the broadcast. “My client is a member of a group who was defamed,” Williams responded. But CNN’s attorney, Kevin T. Baine of the Washington law firm Williams & Connolly, told the panel that Pencek “was not named, pictured or identified in any way” during the broadcast. The broadcast depicted all six helicopter pilots as performing honorably on their mission “to deliver and rescue fellow soldiers from a difficult situation.” In 1998, CNN broadcast a now infamous news report suggesting that American defectors, as well as women and children living in the village attacked by the commandos, were killed with nerve gas during an American covert attack. That attack was known as “Operation Tailwind.” However, the broadcast never accused the helicopter pilots of using nerve gas or of killing defectors and women and children. Pencek did not claim he was singled out by the broadcast, “but that all 200 people [who participated in Operation Tailwind were defamed and had a claim,” Baine said. Within weeks, amid volleys of criticism, CNN’s executives retracted the broadcast, claiming it was false and never should have been aired. The network fired two co-producers who had worked on the eight-month investigation. Pencek was among the six helicopter pilots who flew commandos to the village and retrieved them two days later. Although none of the pilots was named in the broadcast, Pencek alleged in his suit that the broadcast had libeled and defamed them as a group by inferring that they were guilty of war crimes associated with the use of nerve gas during the mission. Williams argued that the use of as many as 37 video images of helicopters throughout the broadcast implied that they shared responsibility with the mission commandos. Last year, a Fulton County State Court judge dismissed Pencek’s claim because the “Tailwind” broadcast was neither about nor directly concerned Pencek. The judge also concluded that even if Pencek was identified as one of the Tailwind helicopter pilots, the CNN report did not defame the pilots. He noted that the report called the pilots “brave and honorable.” A similar suit filed in California by the five other Tailwind helicopter pilots also was dismissed last year on similar grounds. Baine noted that the restrictions on libel actions are even greater when the group alleging libel is attached to a government. “When we’re talking about group responsibility for government operations, the rule is stricter,” he said. “The First Amendment allows the press to report on the operations of government” without fear that government employees may then sue for damages. Said Baine, “The First Amendment does afford protections to broadcasts even if they are false, even if they are incorrect, even if they harm someone. This was not my client’s finest hour. The retraction was historic and unprecedented.”

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