Issue #09/64, May 6 - 20, 1999  

by Matt Taibbi

Jane Akre and Steve Wilson, a husband-and-wife reporting team at the Fox affliate WTVT-13 in Tampa, Florida woke up on on the morning of February 28, 1997 believing that the investigative report they worked so long to produce was finally going to air.

Wilson and Akre had just a day earlier received word from WTVT executives that their four-part series of investigative reports on the use of the controversial food additive BGH, or Bovine Growth Hormone, had been cleared to run. The first installment of the much-anticipated report, which had been heavily promoted by WTVT in a local radio ad campaign, had originally been scheduled to run on February 24. It had been held up, though, when the station on virtually the eve of the broadcast received a darkly threatening letter from a high-priced New York lawyer representing BGH's chief manufacturer, the Monsanto company.

Monsanto's lawyer, John Walsh, alleged in his February 21 letter that Wilson and Akre had misrepresented themselves to Monsanto officials during the course of their investigation, and furthermore had completely misunderstood certain scientific aspects of the BGH story that would appear as serious factual errors if the report aired. Arguing that "a lot was at stake" not only for Monsanto but "for Fox News and its owner", Walsh pleaded with Fox News CEO Roger Ailes to hold the story until these concerns were resolved.

Fox complied, which surprised no one, not even Akre and Wilson; like most experienced journalists, they knew to expect panicky letters from most expose subjects before the broadcast of any potentially damaging report, and were more than willing to go through the extra precaution of a re-review of their reporting in order to keep their bosses happy. Their faith in the station management was restored when after a week of checking and rechecking it conculded that the piece was factually solid and ready to be aired.

Akre and Wilson were relieved. BGH was an important story and they were anxious to see it aired. Banned across Europe and in a host of other civilized countries (including Canada and New Zealand), the hormone was widely suspected of causing colon and breast cancer in humans, as well as a host of health problems and other side effects in cows. Beyond that, the public had been carefully shielded not only from the scientific controversy surrounding the milk-producing additive, but from even hearing about it at all. In fact, Monsanto's lobbying efforts on behalf of BGH had been so successful that for years it had managed to block efforts by dairy farmers who didn't use BGH from saying so on their product labels. It wasn't until the Ben and Jerry's ice cream company won a late 1996 court case giving them the right to mark their ice cream as BGH-free that consumers even knew that there was a choice to be made at all. Wilson and Akre felt that their story would go a long way toward educating the public and instigating a long-overdue debate on the dangers of the drug.

The new release date for part 1 of their series was set for February 28. It never aired. Instead, February 28 marked the beginning of the end of Wilson's and Akre's mainstream journalism careers. Though their BGH expose was doomed, Wilson and Akre were about to become a story themselves, one which would ultimately offer some of the most convincing evidence to date that the right to free speech in America is in as much or more trouble than it was for Russians under Brezhnev.

Here's what happened: on the afternoon of the 28th, Monsanto's lawyer Walsh sent a second and much more overtly threatening letter to Fox News. This one predicted "dire consequences" for Fox if the story aired. That was all Fox's lawyers needed to hear. According to both reporters, WTVT's lawyers, despite the fact that they knew the story to be factually airtight, began arguing from that day forward that the potential costs of a lawsuit outweighed the "value" of the BGH story--value they calculated not in societal benefit, of course, but in terms of the station's financial bottom line.

"They started saying things like, 'Do we really want to spend $500,000 to defend something like this?'" said Wilson last week, in a phone interview with the eXile. "And, of course, they calculated value in terms of ratings, not in terms of whether it was an important story or not. The media is run by bean-counters now. All that matters is the revenue. They could be selling consumer goods, for all they care."

The station's executives paid attention to the lawyers and stalled on the story again. Afraid now that backing off from the heavily-promoted series would make it seem as though they were caving in to special interests, they decided, rather than kill the story entirely, to make Wilson and Akre rewrite the script in a way that softened the accusations against Monsanto. When the rewrite was submitted, they asked for another. And another. And another. All in all, Wilson and Akre were forced to write 81 versions of the script for the BGH series before they were finally suspended by General Manager David Boylan.

Not once during this period did Fox's lawyers cite a single factual error in Wilson and Akre's reporting. In fact, Fox News Vice President Philip Metlin has subsequently testified under oath that the station never once had any questions about the veracity of the story. "They never found even one error," said Wilson.

Boylan, incidentally, had already tried to ged rid of both his pest reporters and the Monsanto litigation threat by offering to pay both Wilson and Akre the balance of their contracts, if they would agree never to discuss the BGH story or how the station had handled the matter. The reporters stuck to their guns and refused the deal. Finally, having suspended the pair for insubordination, Boylan nonetheless demanded that they write, while still locked out of their offices, two more versions of the story. They complied, writing one of their own and then one that absolutely satisfied Fox, which contained untruths as well as a series of preposterous omissions. Finally, on December 2, 1997, nearly ten months since the first scheduled release date for the series, both husband and wife were fired for insubordination.

That was almost the end of the story. But then Wilson and Akre fought back. They turned around and sued their fomer bosses, charging that Fox had violated state whistleblower laws by firing them for refusing to publish false reports.

Here's where the story really becomes grotesque. After losing their jobs essentially because their station feared an outright financial showdown with Monsanto, Wilson and Akre quickly found themselves sunk in a financial war of attrition with Fox, whose legal strategy appeared geared toward bankrupting their former employees as fast as possible.

"It was little things at first," said Akre. "They'd do things like issue subpoenas for witnesses who lived out of state, and then, as soon as Steve bought his plane tickets, they'd mysteriously cancel the deposition."

"Then it got worse," added Wilson. "When we filed the suit, they subpoenaed both Jane and me, and they wanted to depose us for a full month. Now, when we're being deposed, we have to have counsel with us, and he's being paid an hourly rate. So a month of depositions costs us $50,000, which comes out of our own pocket.

"When they made the request I argued to the judge that they were being excessive. After all, even Linda Tripp was only deposed for three days. So the judge took pity on us and cut the deposition to two weeks. So now we're only out $25,000. We paid it."

The trial had been set for early this May, but just last week, Monsanto scored its second continuance. Now the date has been pushed back to October 11, which means plenty of time for more depositions and more costs. Wilson this week had to fly to California on his own tab to depose the Fox president, after he refused to be deposed in Florida; when he got there, the California judge ruled that it was actually the state of Florida that had jurisdiction, meaning Wilson had to turn around and go home. Fox, which only a week before had argued against Florida jurisdiction, now offered no resistance to the California judge's decision, which of course forced the plaintiff to buy another set of airline tickets.

"There's no question that their strategy is do whatever they can to string this along for as long as they can, and hope we run out of money," said Akre. "We'll see if we can make it."

Wilson laughed at the question of why he hadn't appealed to press organizations or reporters' committees for financial help. "We've learned not to look for any support from other journalists," he said. "Individual journalists... well, the fact that we got fired isn't lost on them. They don't want to be seen supporting someone who cost his company so much trouble. As for press organizations, most of them are funded by the big media companies. Take an organization like the SPJ [Society for Professional Journalists]--it's mostly funded by corporate media conglomerates. They're quick to help defend a reporter who's in jail for not naming a source, or in trouble for any of those other issues that everybody in media can agree upon, but when the problem is the media companies themselves, they won't help."

"When it gets right down to it," said Akre, "most of these people are thinking, 'Better them than us.'"

The day this paper hits the streets-- Thursday, May 6--is the United Nations' International Freedom of the Press Day, which makes for a timely headline and is one reason we're doing this story, even though this is strictly an American issue, and we're a Moscow paper. Another reason has to do with the announcement we made in the last issue about dedicating ourselves to being an emigre dissident newspaper throughout the duration of the war in Yugoslavia; we're trying to take aim at our home country these days, since dissent there seems to be in short supply. But the biggest reason why it makes sense for an expatriate paper like the eXile to run a piece about the erosion of press freedom in America is that, like a dog that licks its balls, we just can. The fact is, things have gotten so bad in the United States, and it's happened so slowly and imperceptibly, that by now, only a paper far outside the reach of American courts, American lawyers, and American financial realities can really comment thoroughly and effectively about the state of American speech freedoms.

You have to have as much editorial freedom as we do here at the eXile to appreciate just how little there is left in the United States. We try not to forget here that stories like Wilson and Akre's ordeal are uncommon only because the two reporters were stubborn enough to get themselves fired over a principle, and principled enough to sue over their firing.

In fact, the rest of their story is very ordinary. The same forces that kept their BGH expose off the air are keeping other stories off the air and out of print every minute of every day in America. Akre and Wilson just happened to take the hardest road possible to discovering the heart of the matter. They went from being crusading investigative journalists with the backing of one of the world's richest media companies to being isolated, half-broke private citizens who are quickly being bankrupted into silence by corporate gorgons with bottomless pockets. Their riches-to-rags journey is absolutely representative of the new editorial reality in America: financial might, not veracity, determines whether a story lives or dies.

Things weren't always so bad. Thirty-five years ago, in fact, American journalists enjoyed some of the most far-reaching legal protections ever established. This was mainly due to one landmark case heard by the Supreme Court in 1964-- New York Times v. Sullivan. This was the case that established the famous standard of "actual malice" in libel cases, which dictated that in order to successfully sue a reporter for libel, one had to demonstrate not only factual errors in the report in question, but prove "actual malice" on the part of the reporter. Although there is a popular perception among reporters today that "actual malice" means "malicious intent", its actual meaning is somewhat different, according to media attorney John Sherman of the New York firm Cahill, Gordon.

"'Actual malice' meant that the editors or reporters had to be proven to have knowingly had 'serious doubts' about [the veracity] of the material before it was published," Sherman said. "It was a very tough standard. After New York Times v. Sullivan, plaintiff's lawyers had a much harder time making a case."

For a while after the New York Times v. Sullivan ruling, reporters enjoyed a period of unprecedented freedom. This period, from the mid-sixties through the late seventies, was not coincidentally a time in which some of the more celebrated triumphs of American press freedom took place. There was the Washington Post's Watergate investigation, for instance, which relied heavily on unnamed confidential sources; there was also the New York Times's victory in its fight to publish the Pentagon Papers, which the government claimed had been improperly obtained but were allowed in print anyway. Both incidents left the press at the time with the reputation, whether it was fully deserved or not, of being free, independent, and influential.

"The legal structure at the time encouraged the press to take some chances, which is what the press is supposed to do," said Sherman.

But then, around the onset of the Reagan era, the press began to suffer its first serious legal setbacks in over a decade. According to Sherman, this took place when libel lawyers began abadoning their attempts to find holes in the Sullivan ruling, and decided to concentrate instead on other aspects of reporting that might somehow be legally vulnerable.

"Lawyers began to develop clever little theories to wend their way around the protections afforded by NY Times v. Sullivan," said Sherman.

Ultimately, the place where the press was most vulnerable proved to be the area of newsgathering techniques. In a series of judgements culminating in a few very famous rulings this decade, plaintiff lawyers succeeded in obtaining punitive damages against journalists outside the realm of libel law, using common tort law. Rather than attack a journalist's report as libelous, for instance, plaintiffs would argue that a journalist committed an invasion of privacy, or violated a confidentiality agreement, while researching his story. Using this technique, a plaintiff lawyer could make his case before a jury without even having to contend the substance of the journalist's report. The same reporter who felt safe a few years before as long as he was either correct OR unbiased was suddenly not even safe if he tried his best to be fair and had all his facts straight.

The most famous of these cases was the 1996 Food Lion case, involving ABC-TV's "20/20" show. In this case, two ABC reporters went undercover to get jobs at the Food Lion supermarket chain. Once they got their jobs, they used hidden cameras--tucked away in wigs and bras--to catch Food Lion in a series of impressively gross unsanitary practices, including sales of cheese that had been partially eaten by rats and spoiled chicken that Food Lion employees had washed with bleach and put back on the shelf. Food Lion, facing a potentially lethal wave of negative publicity, fought back by sidestepping libel law and suing ABC on the grounds that its employees had committed a fraud when they lied about their identity to get jobs with their company. Food Lion also somehow managed to keep a straight face long enough to level the additional charge that the employees had lied on their job applications about having had experience working in a grocery store. They also charged that the ABC reporters had defrauded the company because they were being paid to work while in fact, of course, they were actually snooping around and doing reporter shit on company property.

As ridiculous as it seemed on its face, Food Lion won, in the opinion of many because the jury never got to see ABC's damning hidden camera footage. The jury awarded a huge settlment, ABC got a big black eye, and suddenly house lawyers for every major newspaper and TV station in the country began freaking out as a matter of routine every time any reporter did anything more complicated than a standup in front of a PAL parade.

"The Food Lion verdict put into serious question things like hidden camera reporting, undercover reporting...these were techniques that boasted a long tradition, going all the way back to Upton Sinclair," said Sherman, referring to the author of The Jungle, a great and influential book with a Food Lion-ish theme.

A spate of other judgements disastrous to press interests followed. Just last year, the Chiquita Banana company won a $10 million settlement and a full retraction from the Cincinnati Enquirer when it was learned that reporter Michael Gallagher had illegally accessed the voice-mail accounts of Chiquita employees. But where the New York Times decades before had gotten away with publishing the improperly-obtained Pentagon Papers and letting them stand, the Enquirer fired Gallagher and printed a slavish, full-page retraction-- even though none of the facts of his massive 18-part series were in dispute.

The Enquirer expose had showed Chiquita commiting a spectacular range of corporate crimes, ranging from the spraying of pesticides on fields while workers were in them to illegally buying property through shell companies to blowing away trespassers with AK-47s to using the army to evict whole villages of workers...the list went on and on. Nonetheless, the Enquirer caved instantly at the revelations that Gallagher had gotten cute with Chiquita's voice-mail, hung their reporter out to dry, and abandoned the entire story in favor of a desperate public mea culpa for its carelessness.

Meanwhile, Chiquita celebrated. To get a sense of how the other side lives, just check out this account of the Chiquita headquarters the day the retraction was printed:

"Over on Fifth Street in the 28th-floor cafeteria of Chiquita Brands International, nearly 400 employees loudly applauded, laughed, and wiped away tears in an emotional celebration that one participant described as 'a bit more restrained than a British soccer crowd.'"

Meanwhile, the FBI launched an investigation into Gallagher's alleged wiretapping violations, while an S.E.C. investigation into alleged bribery offenses by Chiquita that had been launched prior to the publishing of the Enquirer expose was dropped. No further charges were filed against Chiquita on the basis of any of Gallagher's investigative work. Like Monsanto, Chiquita remains a corporate citizen in good standing.

There were other cases: a Circuit Court of Appeals in New York ruled that Federal Constitutional protection did not cover non-confidential investigations, which means that the notes and telephone/address books of every reporter in the court's jurisdiction are now subject to subpoena, a ruling likely to make sources of all kinds squeamish about talking to reporters. Other courts around the country have recently shot down reporters' rights to keep sources confidential (particularly in criminal cases, often involving that great catch-all excuse for civil-rights violations, the Drug War), a trend that will kill investigative reporting for sure if it continues. 60 Minutes set new standards for network pansiness when it backed out of an interview with a whistleblower from the Brown and Williamson tobacco company when the company threatened to sue CBS for interviewing an ex-employee who they claimed was violating his confidentiality agreement. Not surprisingly, whistleblower interviews have gone out of vogue lately. When the big guys with spotless reputations and armies of lawyers like 60 Minutes back off good stories, you know not to expect much from the minor leaguers.

The list goes on and on, and the basic message has been fairly constant: juries not only love rapacious corporate polluters and regulatory violators, they really hate reporters.

"You get the sense in some of these cases that it's really the press that's on trial," said David Heller, an attorney for the Libel Defense Resource Center in New York.

Sherman agrees. "A lot of the motivation behind some of these rulings is a general dissatisfaction with the performance of the press," he said. "It's almost a political movement, a desire among everyone from judges to plaintiffs to the general public to correct the perceived excesses of the media."

The end result of these cases is that lawyers like Monsanto's Walsh can crush reporters like Wilson and Akre without bringing much more than a threatening letter o the table. Now that they know they have ways to attack, they're doing it.

"Because of all these factors, the stripping away of the protections for things like newsgathering techniques, confidentiality, and so on, plaintiff lawyers are certainly more apt to send threatening letters," Sherman said.

And, as the Wilson case showed, threatening letters work, even when all they are are threats. Wilson is one case that made it to the public, but almost every reporter in the business has come up the same situation once or twice in recent years: the house lawyer knocks on your door with your script in hand and says, either overtly or thinly-veiled language, that this or that part of your story isn't worth the risk. "Look, I don't have any problem with the facts," he usually says, before usually adding: 'It's just that this company has a tendency to get litigous, you know, so we might as well just drop it."

Did the framers of the constitution, when they were writing the first amendment, ever envision a situation when it was that easy to buy silence, or when the threat of a lawsuit was as prohibitive as it is today?

"No, of course, I don't think that was something they thought about explcitly," said Heller.

"I don't know," said Sherman. "It doesn't matter."

There's a reason why juries are ganging up on reporters: they deserve it. For all the supposed self-righteous dickiness of the reporters raised in the Woodward and Bernstein generation, today's journalist community has lately looked like such a craven bunch of spineless snitches that it's hard to imagine ever feeling sorry for them for any reason.

Take the Chiquita/Enquirer case. If that paper's reporters had had any self-respect, they would have taken up a collection to build a giant Statue-of-Liberty-sized middle finger and put it up across the street from the Chiquita headquarters. After all, as much as the guilty reporter Gallagher fucked up their action by giving Chiquita a way to discredit their paper's expose, Chiquita, don't forget, was still the real villain of the story. The only thing Gallagher was guilty of was an overzealous investigative technique. In fact, you could argue quite easily that all he was really guilty of was getting caught. I mean, the voice-mail files he stole...they were the real files. He wasn't faking the story. The story was real. All of those outrageous things he learned about Chiquita, they were all true--at least, the company hasn't denied any of them yet. He just got a little overanxious. In contrast, Chiquita was a company that was knowingly spraying its own workers with toxic pesticides as a matter of routine! They were evicting little kids from their houses at gunpoint, evicting them from a whole village which it had bought from the Honduran government for $1--one lousy dollar--fifty years before. These are slumlords, dumpers, union-busters, and monopolists. Compared to them, Gallagher is an innocent--a slightly overambitious journalist who at the very least had had the guts to spend over a year taking on one of the most influential companies in the community.

So who ends up getting ripped in the press? You guessed it: Gallagher. Here's an excerpt from the Cincinnati Post describing the fallout from the scandal:

"Many Enquirer reporters and editors, fearing that not only the paper's, but their own-repuations have been irreperably harmed, are furious that the Chiquita series bypassed the Enquirer's normal editing process. An anonymous letter--purportedly from a news room editor--faults [editor-in-chief] Beaupre for these short cuts, attributing them to Beaupre's 'zeal to win...a Pulitzer Prize' with Gallagher, a favored reporter whom he had brought to Cincinnati three years ago from Gannett Suburban Newspapers in Westchester, NY..."

What kind of contemptible coward has to write a note like that and also make it anonymous? That's easy: an editor who's afraid of losing his own job, but is perfectly happy undermining his superiors' careers and smearing his own company in public.

Here's another post-Chiquita quote from the Post:

"The Enquirer's apology says an internal investigation is continuing to determine 'whether others involved in the Chiquita articles engaged in similar misconduct.' Because some Enquirer reporters believe that any thorough probe will inevitably point fingers at the paper's top brass, some cynically describe it as an 'O.J. Simpson investigation'-comparing it to O.J. Simpson's claim to be searching for the killer of his wife and friend."

Clearly, some Enquirer staffers were pissed that their superiors wouldn't be fired to make room for them at a higher pay rate.

Then there's the Wilson/Akre case. There were no mass defections of staff over their dismissal. The flunky who was hired to take their place was willing to air whatever version of the BGH story Fox wanted. And, as Wilson noted, neither he nor Akre have too many reporter friends left since they filed suit.

"The thing is, once these reporters start making 80, 100, 200 thousand dollars, or more, well, suddenly there's no us and them anymore," said Wilson. "Suddenly you are them."

So that's the view from here on International Freedom of the Press Day. Judges and juries hate reporters, vital news stories die in the time it takes for a one-page fax to roll into the newsroom, anyone with money can keep his nose clean in public as long as he's got a smart lawyer, editors are being phased out in favor of marketing consultants, and America's newsrooms are rapidly filling up with beady-eyed careerists who are ready to fink on each other at the drop of a hat and race to the front of the pack to snatch up their fifty grand and partial dental plans cranking out Stakhanovite levels of animal rescue stories and CEO profiles. We figure features on Pioneer camps and May Day parades can't be that far behind. All power to the Soviets....