Obviously the third time has not been the charm for attorneys from Fox Television and the large Washington, D.C., influence peddling law firm of Williams and Connolly.
Not only during their trial but twice since its conclusion Florida trial court Judge Ralph Steinberg has rejected the attorney's plea to set aside a jury verdict in favor of former Fox reporters Jane Akre and Steve Wilson who refused to lie or distort the truth about Monsanto's bovine growth hormone (rBGH).
In August, after listening to five full weeks of evidence and deliberating more than six hours, a six-person jury in state court agreed with fired journalists Wilson and Akre that Fox Television had pressured them to broadcast a false, distorted or slanted news report and awarded $425,000 in damages to Akre.
While believing that Fox took retaliatory personnel action against the former Tampa, Florida WTVT investigative reporter because she threatened to blow the whistle to the Federal Communications Commission (FCC), the jury did not find for Wilson, apparently because they concluded that Fox's decision not to renew his contract was not based solely on a threat to blow the whistle to the FCC. Wilson is currently appealing that decision. based on his claim of an erroneous jury instruction.
Fox is charging that Wilson's motion must be dismissed because it was not properly filed in a timely manner. Wilson believes that the jury was not able to find in his favor because they were wrongly instructed that in order to do so they must find the sole reason for his termination was his protected whistleblower activity. According to recent case law, Wilson argues that Fox's retaliation for his standing up for the BGH story need only be a "prevailing" or "substantive" reason for his dismissal, not the sole reason.
The husband-and-wife investigative team filed their suit after blowing the whistle on a story they say Fox-owned WTVT (Channel 13) and its corporate bosses preferred to coverup rather than broadcast honestly and accurately. The story, documented in their lawsuit, revealed the widespread use of the rBGH hormone Florida dairymen were secretly injecting into their cows.
Although approved by the US Food and Drug Administration in 1993, the artificial hormone has been linked to cancer and is banned throughout Europe and unapproved in several other countries because of human health concerns.
The reporters' never-broadcast report also revealed how Florida supermarkets quietly reneged on promises not to sell milk from treated cows until the hormone gained widespread acceptance by consumers. All major supermarkets now admit rBGH has found its way into virtually all of Florida's milk supply.
The reporters in their suit charged in detail Fox television, owned by Rupert Murdoch's multi-national News Corp ("News Corporation is the only vertically integrated media company on a global scale" -- 1997 Annual Report) under strong pressure from Monsanto, violated the reporters' contracts in dismissing them.
Filing the suit after struggling with Fox executives for most of 1997 to get the story on the air, Akre-Wilson submitted over 83 drafts of scripts all found "unacceptable" by the station. According to court papers, they were ultimately dismissed December 2, 1997.
"Every editor has the right to kill a story and any honest reporter will tell you that happens from time to time when a news organization's self interest wins out over the public interest," said Wilson, the station's former senior investigative reporter who helped Akre produce the story.
"But when media managers who are not journalists have so little regard for the public trust that they actually order reporters to broadcast false information and slant the truth to curry the favor or avoid the wrath of special interests as happened here, that is the day any responsible reporter has to stand up and say, 'No way!'That is what Jane and I said in this lawsuit," Wilson said.
According to Akre-Wilson, WTVT originally reviewed the investigative reports and scheduled them to air in four parts beginning Feb. 24, 1997, and had even launched an extensive radio ad campaign to draw attention to the series. But on the eve of the broadcast, the station pulled the reports after Monsanto hired renowned New York attorney John Walsh to complain to Fox News chief Roger Ailes, the former media adviser to Republican presidents Nixon, Reagan and Bush, on the eve of the broadcasts.
Local station management again carefully reviewed the investigative reports, found no errors in any of the reporting, rescheduled them to air a week later, and even offered Monsanto the opportunity to be interviewed a second time, according to the Akre-Wilson suit. Instead, Monsanto responded with another threatening letter, promising "dire consequences" to the Fox network if the report was aired. Again the WTVT reports were postponed.
In supporting papers filed with the court, the journalists say WTVT General Manager David Boylan refused to kill the story for fear the viewing public would learn that the station yielded to pressure from special interests. Instead, Wilson and Akre allege, Boylan ordered the reporters to broadcast a version which contained demonstrably false information and he threatened to fire them both within 48 hours if they refused.
In their suit Akre-Wilson relate that at one point Boylan told the reporters, "he wasn't interested" in looking at the story himself and pressured them to follow the company's lawyer's directions. Are you sure this is a hill you're willing to die on," he told them. Later, they claim, he stressed, "We paid $3 billion for these television stations. We will decide what the news is. The news is what we tell you it is."
Instead of being fired, the complaint continues, Boylan offered to release both reporters from further obligations and pay them full salary for the balance of their contracts if they would only agree never to discuss the rBGH story or how it was handled by the station. The reporters declined the offer.
What followed was nearly nine months of writing and rewriting the scripts more than 83 times, none of which suited Fox management according to their suit which says Boylan then suspended both reporters but ordered them to write two final versions while suspended.
In their defense appeals that have followed the trial Fox's chief defense attorney William McDaniels of the Washington firm Williams & Connolly claimed there were three basic reasons the judge should set aside the jury's unanimous verdict and Akre's $425,000 award.
[Williams and Connolly is the same law firm which recently represented Bill Clinton in his impeachment trial before the US Senate, unsuccessfully defended Archer Daniels Midland (ADM), after the "Supermarkup to the World," was indicted by the US Department of Justice for participating in a world-wide feed additive price fixing scheme, and represented the father of Cuba's Elian Gonzales in regaining custody of the child from his Florida relatives.]
First, McDaniels claims there is insufficient evidence to support the jury's finding that Fox acted deliberately to slant and distort news reports about Monsanto's rBGH. Second, the defense lawyer argues that there is insufficient evidence to support the damage award. He claims the only adverse personnel action which occurred after the journalists written complaint to Fox officials was a suspension period for which the reporters were ultimately paid. Third, McDaniels argues that the plaintiffs should never have been able to prevail in any event because technically there is no law, rule, or regulation against deliberate news distortion by a television station licensed to use the public airwaves.
During the course of the trial Green presidential candidate and consumer activist Ralph Nader pointed out to the jury that the FCC has become "all about exonerating broadcasters instead of holding them accountable." Fox unsuccessfully sought to bar Nader and Walter Cronkite from testifying on behalf of the plaintiffs.
A key element of Fox's defense strategy during the trial was that even if some of the editing instructions given by lawyers and managers at WTVT might have slanted the story on rBGH, the broadcasting company is protected by the First Amendment. The defendants also claimed there is no law, rule or regulation to prohibit such distortion.
Nader strongly disagreed with such logic. He cited an FCC case from 1969 when the commission said quite clearly that "rigging, slanting the news is a most heinous act against the public interest." While admitting the FCC has not investigated and prosecuted any such case, Nader said at one point, "We're dealing with an agency going to extremes not to enforce the Communications Act." It is that law, adopted in 1934 and implemented through FCC policy and actions, that requires all broadcasters to operate in the public interest.
Nader, a long and frequent critic of the FCC, added, "They haven't killed the public interest standard, but they certainly have anesthetized it!"
The Fox lawyer pressed Nader on his opposition to the abolition of the Fairness Doctrine, suggesting the FCC's policy against news slanting and distortion may have died with it. The doctrine was abolished during the Reagan administration to the delight of broadcasters who claimed a law which forced them to be fair actually stifled free speech. "That claim was an observation so preposterous it hardly deserves any rebuttal," Nader said.
Acknowledging for the first time, in their recent appeal, that the "no-law-against-lying" argument poses a public relations nightmare for a news organization, McDaniels said, "WTVT is not saying a licensee is free to falsify the news. That's not the issue," he claimed. He said no Fox station would ever do such a thing.
Curiously, however, Fox continues to pursue its rationalization that it has not broadcast false, distorted or slanted news. Within hours of the verdict the station was claiming a victory in the Akre-Wilson trial. Jane Akre recalls:
"On the station's 6 o'clock news which I watched with my lawyers at their office, we all commented on how accurately and fairly they reported the news. Anchorwoman Kelly Ring said quite clearly, '... the jury found the station violated the state whistleblower law when they fired [Akre].' But the the time the 10 o'clock news hit the air, it was a different story. Fox lawyers and public relations wizards had time to get it spinning like a top.
"By 10:31 p.m. when the station buried the story in the late news, the report was that WTVT was 'completely vindicated.' A Fox attorney from Los Angeles was seen telling viewers the jury's decision 'does not have to do with distortion of the news.' HUH!!? The station's guilty verdict on the whistleblower count means exactly that, no matter how fast you spin it.
"I am still trying to understand," Akre observes, "how a station just found guilty of distorting the news could have the unmitigated gall to do it again in reporting their loss. Do these high-paid lawyers really not understand the verdict, or are they slanting the news, again, for their own gain?"
Meanwhile, the nearly complete blackout of the Akre-Wilson trial by the national media (as well as by the local Florida media), which has become little more than a corporate apologist, was of itself a national scandal and disgrace. But, at the same time, the at best tepid support offered the two journalists by the nation's so-called liberal/progressive community, particularly farm, food, health and environmental groups and organizations, has certainly not been one of its proudest moments.
It was indeed an indictment on the liberal/progressive alternative media that Akre and Wilson had to resort to covering their own trial for lack of coverage not only by the mainstream media, but by the liberal/progressive alternative media as well.
One wonders where all the alternative press Woodward-and-Bernstein wannabees that overran Seattle during last November's World Trade Organization (WTO) ministerial meeting with their reports and commentary ad nauseam were less than a year later instead of being in Tampa, Fla.
Likewise, the seeming unwillingness of the liberal/progressive community to make the issues at stake in the Akre/Wilson vs Fox Television case a focal point of local and national public attention calls into serious question its basic priorities.
It is all well and good, as many liberal/progressive groups are currently doing, to raise the serious questions that need to be raised about the genetic engineering of our food supply, but attempts to be on the cutting edge of an issue should not limit such individuals and groups to the fact that there are other relevant issues at stake in battling such corporate power as has been exercised by Fox in the Akre-Wilson case.
Freedom of speech, the integrity of the news that is broadcast over the public airwaves, the safety of our food, the ability of reporters to tell stories that are free from the dictates of corporate coercion and a deliberate slanting of the news by those same corporations and media managers, are all not only issues vitally important to Americans, but to the future of democracy itself.
Complete details of the Akre-Wilson suit and reports on their trial are presented at a special Internet web site they have established and which can be viewed at www.foxbghsuit.com
A.V. Krebs operates the Corporate Agribusiness Research Project, P.O. Box 2201, Everett, Washington 98203-0201; email firstname.lastname@example.org; website www.ea1.com/CARP/