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the decision. Fox was told ads for live-action family films during the

same time period would be considered only on a case-by-case basis.

From Disney’s perspective, such control justifies its purchase of Capi

tal Cities/ABC for $19 billion in 1995.

Executives say the company has

in essence opted to make ABC part of Disney’s film distribution chain.

Plans are to air three or four of its recent animated theatrical releases on

Sunday evenings, making them a part of the revival of The Wonderful

World of Disney series.

The opportunity to cross-promote Disney and

ABC brands was a key attraction of the merger, but some at ABC were

surprised “at how blatant such promotions have been.”

Furthermore,

ABC managers were surprised at the level of Disney’s scrutiny of their

operations and the vastly different corporate cultures.

Yet, what Disney did to ABC is what Disney fears about AOL’s acquisi

tion of Time Warner. Disney worries that the television stations owned

by Disney’s ABC network on Time Warner Cable systems in several

markets might be excluded. A number of other entertainment and me

dia companies also expressed concern that the merger would squeeze

them out of AOL’s online distribution vehicles. For example, without

equal access, consumers signing on to AOL could be directed to Warner

Music artists. Although AOL’s CEO Steve Case and Time Warner chair-

man Gerald Levin pledged that the merged companies would carry a di-

versity of content on their systems, they also stated that they would

distribute Time Warner’s own content as widely as possible.

Interconnections among business and media organizations are an-

other possible means of ownership influence. Mintz raises the question

of whether CBS might go easy on the insurance company CNN in re-

porting the harmful effects of smoking, because Laurence Tisch not only

is CBS’s chairman but also heads the Loews Corporation, which, in

turn, owns CNN and Lorillard, a major cigarette manufacturer.

Even the Public Broadcast System (PBS) is underwritten by GE, GM,

Metropolitan Life, Pepsico, Paine Webber, and, contributing more than

70%, four giant oil companies. An article insinuates that this sponsorship

is one reason, according to a media watchdog, corporate representatives

constitute 44% of the sources interviewed about the economy whereas

activists accounted for only 3% and labor virtually none. Furthermore,

most PBS documentaries are considered politically nondescript or cen

trist. Deadly Deception, an Academy Award-winning critique of GE and

the nuclear arms industry, was, with a few local exceptions, denied

broadcast rights on both commercial and public television.

Board Membership

Many corporate heads are on the boards of newspapers, observes

Mintz. On Katharine Graham’s board at the Washington Post are James

Burke, retired chairman and CEO of Johnson & Johnson; Nicholas

Katzenback, who for many years was senior vice president and general

182 I CHAPTER 7

counsel of IBM; and George Gillespie, a long-time partner in Cravath,

Swaine & Moore, which Mintz considers to be the nation’s premiere

corporate law firm.

Mintz suggests that this board membership pattern may be related to

why the press failed to report on drug-related deaths revealed at con

gressional hearings or in court cases where pharmaceutical companies

are sued by the victims or their relatives. For example, although three

drug companies were convicted and fined for withholding information

from the Food and Drug Administration on foreign deaths, press cover

age was inadequate. The companies were Hoechst AG, a German-based

multinational, on its drug Merital; Smith Kline on Selacryn; and Eli Lilly

on Oraflex. Mintz considered the matter a “significant national and in

ternational story,” deserving of full news status, but it drew only five

paragraphs on page B3 of the Wall Street Journal and two paragraphs at

the bottom of page D4 in The New York Times.

ENGAGE IN PUBLIC JOURNALISM

Because media companies are becoming aware of public distrust of the

media—through opinion surveys and reduced readership—some news-

papers are themselves seeking reform through public journalism pro-

jects. The basic idea is to encourage newspeople to create discourse by

convening public forums, seeking out the views of ordinary citizens,

giving readers more voice in news and on editorial pages, and actively

enlisting citizens in a search for solutions to society’s problems.

Guido

H. Stempel, III, author of several journalism articles, says, “The focus of

civic journalism is on finding solutions rather than just pointing out

problems.”

These efforts are called public journalism or civic journalism because

their broader goal is to strengthen civic life in America by reengaging in

public discourse people who have dropped out of public life. Readers are

encouraged to participate in the political process and improve govern

ment institutions.

The Pew Charitable Trusts, with $3.8 billion in

assets, since 1994 have helped to fund projects at 30 American newspa

pers. For example, in San Jose, California, citizens who are readers of the

Mercury News drafted a “statement of accountability” and asked law

makers and candidates to sign it.

Jay Rosen, a New York University journalism professor who has been

promoting the concept of public journalism, laments the lack of mature

judgment by the public. He blames the media for “reporting too much of

the process and minutiae in politics, with too many dueling experts.” He

sees public journalism as helping the community “come to public judg

ment.” The journalist focuses on readers and viewers rather than on ex

perts. The public is helped to “work through” a problem, which is done

by providing information and helping people “understand that there are

some choices to be made; that these choices involve tradeoffs; and that

there are consequences to choosing.”

HOLDING THE MEDIA ACCOUNTABLE AND SUING I 183

Although public journalism is now practiced by nearly 200 news or

ganizations, critics fear journalism’s traditional objectivity is sacrificed.

Washington Post editor Leonard D. Downie Jr. reflected this view when

he said, “No matter how strongly I feel about something that’s going on

out there, my job is not to try to influence the outcome.”

Some jour

nalists fear civic journalism will turn newspapers into advocates and

discourage reporters from exposing wrongdoing and failures.

Has public journalism increased public interest in elections and the

political process? A 1997 study of the Record, a Hackensack, New Jersey,

newspaper, that showed 9 weeks and 54 full pages of issues-based cov

erage in the 1996 New Jersey Senate race failed to interest readers and

increase their knowledge of candidates or issues. Only one in five readers

said they even noticed the special “Campaign Central” pages, which ap

peared every day but Saturday inside the paper’s front section.

After listening to focus group discussions, editors “felt stunned and

somewhat shaken.” The study showed that “the frames through which

respondents viewed the campaigns seemed to have been shaped mostly

by the candidates’ commercials.” Indeed, 44% of the newspaper’s readers

said television was their most important source of campaign news.

The

candidates had spent more than $17 million on television commercials.

The newspaper’s “public-style” election coverage hardly made any im-

pact on North Jersey voters. In addition, the effort cost the paper about

$100,000 in additional newsprint and required almost a dozen reporters

and editors to be shifted temporarily from their regular assignments.

One lesson learned applies to journalism in general: Journalists can’t

reconnect citizens with democratic institutions solely by altering the

way they write their stories. Readers best remembered charts, such as a

side-by-side grid comparing the environmental positions of the candi-

dates. Charts were significantly easier than prose to understand, and

they were more believable. Charts in the “Voter’s Guide” were especially

useful and noticed.

Another lesson is that newspapers have to back up their rhetoric

about “public-style” election coverage with concrete activities of public

involvement. The Record did conduct a poll to identify issues of public in

terest. It also conducted a series of “town hall” meetings—open to any

one who returned a coupon published on the page. However, these

instruments of public empowerment may have been too weak. The only

description of the public forums is that one session gave citizens the op

portunity to discuss the issues they felt the campaigns should address

(thus duplicating the purpose of the poll) and that other forums “fea

tured debates between the congressional candidates, with citizens,

rather than a panel of reporters, asking the questions. All the sessions

were recorded for telecast on cable, and excerpts from transcripts were

published in the newspaper.”

Finally, some obstacles may impede journalism’s effectiveness: the

public’s disenchantment with politics, the lack of dynamic political

leaders, and loss of public confidence in the press itself.

184 I CHAPTER 7

SUING THE MEDIA

An extreme way to hold the media accountable is to sue them. A growing

number of people and organizations that feel they have been damaged or

falsely accused by television news have been retaliating in court.

This ap

proach was illustrated in November 1996 when a Miami, Florida, jury or

deredABCNewsandtheproducerof20/20 to pay $10 million to Alan

Levan, chairman of Florida Bank Atlantic, and his bank. A November 1991

program had accused him of bilking investors in a series of complex real es

tate deals. Levan was delighted by the verdict, saying, “We were seeking an

apology and a change in the way broadcast journalism is conducted.”

1996 Becomes a Peak Libel Suit Year

As 1996 came to a close, the Wall Street Journal wrote, “A year of tough libel

verdicts for the U.S. news media just got tougher.”

The number of awards

filed against journalists increased sharply during the year, and so did the

award amounts. A preliminary study by the New York-based Libel Defense

Resource Center stated the median libel jury verdict in 1996 before the ABC

case was $2.4 million, more than double that in the previous 2-year period

and more than 10 times the 2-year median of $175,000 in 1992 and 1993.

ABC attorney Floyd Abrams explained, “The public for some years has

tended to be angry at the mass media even as it watches it.”

More people and corporations have felt this way since television news

executives and editors began ordering more investigative stories in the

aftermath of Watergate. As seen by plaintiffs and their attorneys, re-

porters are “a bunch of hip-shooters … who don’t know what they’re

doing, and they ought to be taught a lesson.”

Another impetus to suing the press is the existence of new nonprofit

organizations that provide necessary legal support. Reflecting their

purpose and mood is the American Legal Foundation, which established

the Libel Prosecution Resource Center. As stated by Michael P. McDonald,

the foundation’s general counsel, “We’re going to throw open the doors

of the center to people who feel that they have been assaulted by news

organizations, who feel that they are media victims and would like to

find information about how they can vindicate their rights in court.”

A final incentive is the Supreme Court’s changing and seemingly

antagonistic stance toward the media, which stems from the early

1980s.

There was further cause for alarm in 1993 when the Second

U.S. Circuit Court of Appeals unanimously ruled reporters from four

newspapers and two networks must relinquish their notes and video

tape outtakes of interviews with a criminal-defense lawyer.

Cases of Deceptive or Careless Newsgathering

Overzealous reporters sometimes use fraudulent means to obtain their

news. In 1993 three CNN reporters piggybacked on a search warrant

HOLDING THE MEDIA ACCOUNTABLE AND SUING I 185

when they joined 18 Fish and Wildlife agents to search a Montana

ranch where the owner, Paul Berger, was suspected of poisoning eagles

preying on his sheep. The three reporters, dressed in the same clothes

as the federal agents, hid their identities and were wearing wires feed

ing a CNN tape. The search warrant did not mention the inclusion of

CNN reporters. Berger and his wife sued the federal government and

CNN for violating their Fourth Amendment rights against unreason

able search and seizure.

Major Cases of Deceptive News Practices. A major case of decep

tive newsgathering involved ABC News and Food Lion. At the end of No

vember 1991, a federal jury ruled ABC News reporters committed fraud

by posing as employees in the supermarket chain of Food Lion to pro

duce a hidden-camera report on alleged unsanitary food-handling prac

tices at the stores. Food Lion sued ABC, not on the usual grounds of libel

but on the legality of its newsgathering techniques.

Box 7.3 describes

the details. A second celebrated case of media deception is the invasion of

the Chiquita Brands International computerized voice mail system by

reporter Michael Gallagher of the Cincinnati Enquirer, which is reviewed

in Box 7.4.

The Food Lion suit motivated participants in a seminar at the Poynter

Institute for Media Studies to update the criteria the Society of Profes-

sional Journalists uses to determine when it is justifiable for journalists

to use deception for a story. The following conditions must be met:

• When the information sought is of profound importance. It must

be of vital public interest, such as the revelation of great “system

failure” at top levels, or it must prevent profound harm to individ-

uals.

• When all other alternatives to obtain the same information have

been exhausted.

• When the journalists are willing to disclose fully and openly the

nature of the deception and the reason for it to those involved and

to the public.

• When journalists and their news organization apply excellence,

through outstanding craftsmanship and the commitment of time

and funding to the project, to fully pursue the story.

• When the harm prevented by the information revealed through

deception outweighs any harm caused by the act of deception.

• When the journalists have followed a meaningful, collaborative,

and deliberative decision-making procedure in which they weigh

the following:

• The consequences (short and long term) of the deception on

those being deceived.

• The impact on journalistic credibility.

• The motivations for their actions.

• The deceptive act in relation to their editorial mission.

186 I CHAPTER 7

• The legal implications of the action.

• The consistency of their reasoning and their action.

This tightened code addresses the broader message of the Food Lion

jury decision, which, according to Scott Andron, business reporter for

the News & Record in Greensboro, North Carolina, is this: “The public

does not like us, does not trust us and does not understand us. If we

don’t start explaining our work better to the public—and, where appro

priate, cleaning up our ethical decision-making—we can expect more

large punitive damage verdicts in the future.”

In light of the new code,

HOLDING THE MEDIA ACCOUNTABLE AND SUING I 187

Box 7.3 Food Lion Suit Against ABC

Food Lion’s successful civil suit against ABC for fraudulent news

gathering techniques led Tom Smith, president and CEO of Food

Lion, to say the jury “has told ABC that networks, producers and re

porters, like everyone else in the country, are not above the law.”

The

case was encouraging to companies fighting damaging reports from

television news organizations. The number of claims based on news

gathering issues had been rising, said Sandra Baron, executive direc

tor of the Libel Defense Resource Center. She noted, “It seems that

what plaintiffs are hoping for is that the public at large is not going to

like some of the tools of the trade, such as hidden cameras and hid

den mikes.”

By not filing a libel suit, Food Lion never denied the truth of the No

vember 1992 PrimeTime Live segment that it had “routinely foisted

rotted and infected food on an unwitting public.”

The story con-

tained references to spoiled chicken, rotted fish, and rats in the

cheese. However, the jurors never saw this program because this was

not a libel case in which the truth of the matter counted; the case was

about the methods used by ABC producers in an undercover investi-

gation. Reporters obtained jobs at Food Lion by lying about their pre-

vious work experience and giving phony references. Once employed,

they gathered data with cameras hidden in their hair and other equip-

ment tucked into their bras. In the 2 years following the disclosures,

however, Food Lion closed 84 stores and laid off thousands of em-

ployees, presumably because of loss of consumer confidence.

When the jury decided on a $5.5 million verdict against ABC, its

message was that media deception and misrepresentation had gone

too far.

In the words of Marvin Kalb, a veteran broadcaster who is

now director of Harvard University’s Joan Shorenstein Center on the

Press, Politics and Public Policy, lying became the rule when it should

have been the exception: “The use of deception is so widespread and

sophisticated it demeans journalism and damages badly the journalist

and the public.”

it is also important to add that in its own defense, ABC commented, “We

never engage in undercover activities lightly, but sometimes they are

necessary to bring stories of real importance to the public’s attention.”

As an epilogue to the case, U.S. District Judge N. Carlton Tilley, Jr.

ruled the $5.5 million award to Food Lion was out of proportion to the

actual harm suffered and was unconstitutional. He said Food Lion

would have to accept a $315,000 award or he would order a new trial.

The company accepted the reduced award, but ABC decided to appeal

further.

Judge Tilley’s ruling was not based on support for the First Amend

ment rights of the press; rather it was based on the concept of consider

ing the ratio of actual damages to punitive damages. This argument

was used in a 1996 case in which the Supreme Court struck down a

jury’s $2 million award against a BMW dealer who was sued by a doc

tor because the dealer had failed to disclose the paint of the car he pur

188 I CHAPTER 7

Box 7.4 Cincinnati Enquirer Invades Voice Mail of Chiquita.

Another case of deceptive practices is the invasion of Chiquita Brands

International computerized voice mail system by reporter Michael

Gallagher of the Cincinnati Enquirer in violation of state wiretapping

laws. With the help of a corporate insider, he wrote an 18-page report

based on information obtained from 2,000 voice mail messages. The

report charged Chiquita with union-busting, pesticide poisoning, and

shady dealings in Central America, and included allegations of a Co

lombian bribery scheme.

Eight weeks after the articles were run, the Enquirer fired Gallagher,

apologized, and paid Chiquita more than $10 million (some say the

sum was closer to $15 million) in “one of the quickest and most ex

pensive settlements in media history.” The apology appeared on the

front page and was signed by the Enquirer’s editor, Lawrence

Beaupre, and publisher, Harry Whipple. They said they had become

convinced “‘representations, accusations and conclusions’ about

Chiquita in the series ‘are untrue and created a false and misleading

impression of Chiquita’s business practices.’” In a memo to the news-

paper’s managers, the publisher said Gallagher “lied to us repeatedly

over a period of nearly a year.… His deception was massive.”

Daniel Schorr, senior news analyst for National Public Radio, labels

this investigative story as one “that is accurate and may perform a real

public service, but raises questions about how the information was ob-

tained.” The larger lesson is “businesses, feeling the pressure of

stepped-up financial reporting over the last decade, are becoming

bolder about attacking journalists publicly and with lawsuits.”

Gallagher was later sued separately by Chiquita.

chased had been scratched before it was sold to him. The court

considered the ratio of 500 to 1 excessive. Likewise in the Food Lion case,

the ratio of the $1,402 in actual damages to the $5.5 million in punitive

damages is about 3,900 to 1.

Careless News-Gathering. Deception is sometimes mixed with

carelessness in the news-gathering process. The following are some

prominent cases.

• U.S. Army General William C. Westmoreland sued CBS and several

individuals for more than $100 million because, in a January 1982

broadcast, “The Uncounted Enemy: A Vietnam Deception,” he was ac

cused of being part of a “conspiracy” to underestimate enemy strength

in the Vietnam War. Litigation lasted more than two years, and legal

costs were estimated at $113 million. He dropped his case, however, be

fore it went to the jury. Many people agreed CBS was unfair in using the

loaded word conspiracy andstackingthedecksagainstthegeneral.

• Israeli General Ariel Sharon sued Time, Inc., for $50 million,

charging the magazine with “blood libel” for implying he had en-

couraged the massacre of Palestinians at the Sabra and Shatila Pales-

tinian refugee camps in Beirut, Lebanon. The story claimed Sharon

had discussed “revenge” with the Lebanese Phalangists just before the

massacre. Although the jury agreed the story was false, he lost his

case because the jury did not find Time guilty of the other two ele-

ments of a successful libel suit: that the story was defamatory and

that it was written with actual malice. Time was embarrassed when

testimony revealed that the cover story was based on a “damning

paragraph” from an interoffice memorandum written by an Israeli

reporter, David Halevy, in Time’s Jerusalem bureau. On cross-exami-

nation, Halevy admitted he had no basis for his accusation other than

an inference “based on my 43 years of living in Israel.”

• Paul Engler’s beef against Oprah. Illustrating the trend to sue

the media is the $6.7 million suit by cattleman Paul Engler against

Oprah Winfrey and others because of losses incurred when, on her

show in April 1996, she referred to England’s recent mad-cow disease

outbreak as “the biggest health crisis since Chernobyl.” Worse yet, af

ter her guest, a food safety activist, opined that mad cow posed a dire

threat to America as well, Winfrey exclaimed, “It has just stopped me

from eating another burger.”

Attesting to the power of some television shows, the prices of cattle

and cattle futures plunged on the day of the television show, resulting

in a loss of $6.7 million for Engler, who runs a big cattle-feeding oper

ation and ranch. The legal basis for his suit is that Texas, where the

suit was filed, is one of 12 states that has a False Disparagement of

Perishable Food Products law—passed after the U.S. apple industry

was pummeled by the Alar scare. The law states a critic of agricul

tural products can be held liable if the criticism isn’t based on “reliable

HOLDING THE MEDIA ACCOUNTABLE AND SUING I 189

scientific inquiry, facts, or data.”

With this law as his weapon,

Engler sued not only Oprah Winfrey but also her production com

pany, Harpo Productions, Inc.; the show’s distributor, King World

Production, Inc.; and beef critic Howard Lyman, who is a National

Humane Society official. His fellow ranchers cheered him on. Said

one, “Don’t argue. Go over and blow the hell out of them.” Another

said, “The only Mad Cow in America is Oprah.”

After nearly 6 weeks, during which Winfrey moved her television

show from Chicago to Amarillo, Texas, where the trial took place, the

jury voted she and the other defendants did not hurt Amarillo ranching

families and their cattle companies.

Effects of Libel Suits: The Media Become More Careful,

and Some Are Intimidated

After the Westmoreland and Sharon suits, Mike Wallace neatly summed

up their effects: There is a need to “be damned careful.… Put it [the

story] through your typewriter once again or put it through the screen-

ing process once again to make absolutely certain that it can withstand

the kind of scrutiny that we give other people, other events—govern-

ment, business.” He added, “There should never have been a lawsuit and

there wouldn’t have been if all of us at CBS had been more intelligent in

handling the reaction to that broadcast.” For example, Westmoreland

said he would have been satisfied earlier with the statement CBS made to

have the suit dropped, namely, that it “never intended to assert, and does

not believe, that General Westmoreland was unpatriotic or disloyal in

performing his duties as he saw them.”

60 Minutes Temporarily Succumbs to Tobacco Industry. Mike

Wallace leveled some sharp criticism at CBS for succumbing to a

threatened lawsuit by Brown & Williamson Tobacco when in Novem

ber 1995 it canceled a segment of 60 Minutes containing an interview

with “Jeffrey Wigand, PhD, B&W’s former vice president of research.”

The company accused CBS of inducing Wigand to break a confidential

ity contract with it. In the interview, Wigand accused B&W’s former

chairman, Thomas Sandefut Jr., of lying before Congress when he and

other industry executives maintained a solid front in declaring that

they did not manipulate levels of nicotine in cigarettes. Wigand also

said B&W enhanced the effect of nicotine through the use of various

chemical carcinogens, including ammonia, through a process known

as “impact boosting,” which results in nicotine being absorbed into the

lungs faster and affecting the central nervous system more quickly. On

a personal note, he claimed in his 60 Minutes interview that he received

threatening phone calls, such as, “Leave tobacco alone, or else you’ll

find your kids hurt,” and, “Don’t mess with tobacco any more. How

are your kids?”

190 I CHAPTER 7

The 1999 movie The Insider dramatizes the way the CBS program

handled the report on the tobacco industry in 1995. Don Hewitt, execu

tive producer of 60 Minutes, criticized Lowell Bergman, who consulted

on the film and was portrayed as a principled reporter who eventually

quit his job over CBS’s handling of the report. Mr. Hewitt was cast as

more concerned with CBS’s stock price than the truth. Hewitt said that

by turning himself into a hero and portraying Hewitt as a toady, Berg

man lied, destroying his credibility as a journalist.

In a substitute program, 60 Minutes reported on the lengths to which

the tobacco industry has gone to muzzle its critics. In a personal note at

the close of the program, Mike Wallace said the program’s staff had been

“dismayed that the management of CBS had seen fit to give in to per

ceived threats of legal action.” He added, “We lost out—only to some de

gree—on this one, but we haven’t the slightest doubt that we’ll be able

to continue the 60 Minutes tradition of reporting such pieces in the fu

ture, without fear or favor.”

On hearing Wallace’s statement, Richard

Campbell, author of a book on 60 Minutes, quipped, “Unless it involves

the tobacco industry.” He added, “But I think the end result was pretty

weak-kneed,” and noted the program’s failure to mention the manage-

ment decision came as CBS stockholders were considering a merger with

the Westinghouse Electric Company.

The New York Times’s comment on

the cancellation of the original program was that “In so doing, in the

eyes of some journalism analysts, the program risked its twenty-

seven-year reputation for taking on any subject, no matter how large or

powerful.”

100

Said Marvin Kalb: “I think what happened here is proof of

the primacy of lawyers over editors.”

101

Small dailies and weeklies particularly have felt the chilling effect the

proliferation of libel suits has had on aggressive reporting. They lack the

size, money, and resources to fight them and are often unduly influ-

enced by social and financial pressures in their local communities. These

factors, rather than the fear of losing libel cases, have caused editors to

become more cautious in their approach to investigative stories and

even routine but controversial reporting about public figures.

102

The threat of suits has helped to improve journalistic accuracy. Re

porters are more apt to double-check their facts rather than prove a pre

conceived story. Editors and publishers are also likely to be more

responsible by checking for factual accuracy and moving away from the

use of unnamed sources.

The media may also be learning better manners. A study by Gilbert

Cranberg of the Iowa Libel Research Project found that unsatisfactory

postpublication experiences with the press influenced most of the 164

interviewed libel plaintiffs to file libel suits.

103

They complained that

when they called the newspaper, they were bounced from one person to

another. When they did reach someone, they often received such dis

courteous responses as, “Well, that’s just the way we do it, buddy!

That’s our policy,” or even worse: “Fuck you, you’re full of shit.”

104

stead of cooling them down, calls to the press made the aggrieved parties

HOLDING THE MEDIA ACCOUNTABLE AND SUING I 191