This lively and richly storied work documents the dangerous consequences of the disintegration of trust between the public and the news media.
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Don't Shoot the MessengerHow Our Growing Hatred of the Media Threatens Free Speech for All of Us
By Bruce W. Sanford
Rowman & Littlefield PublishersCopyright © 2000 Bruce W. Sanford
All right reserved.
A Dangerous New Season
The mist that rises from the Ohio River on cold autumn mornings could not obscure the hard truth emerging in late 1998 from Cincinnati: America's news media, bloated with profit, obsessed with its customers and agonized with insecurities, faces a century ahead utterly unlike the glorious twentieth-century epoch behind it.
The Gannett Co., proud innovator of USA Today and publisher of scores of newspapers such as the Cincinnati Enquirer, had paid more than $10 million to Chiquita Brands International and "renounced" a lengthy Enquirer series about the banana giant. The deal had been cut by Gannett's senior management in Washington. It averted a morass of litigation threatened by Chiquita and its formidable owner, billionaire Cincinnati financier Carl Lindner. The size of the settlement shocked media executives everywhere. By any measurement, it was unprecedented. The New York Times played the announcement of the payoff on its front page above the fold. But beyond the breathtaking amount of the financial transaction came the horrible recognition that Gannett may have been squeezed to disavow a story, substantial parts of which may have been true.
The cold news from Cincinnati ushers in a dangerous new season for both the media and the public that relies on it for knowledge. Aggressive business interests and celebrities of every stripe are using their wealth and a new arsenal of legal tactics to attack enterprise reporting. Media companies, with some reason, are caving. They know that they will not find the receptive audiences they once experienced in court. Judges have grown as deeply contemptuous of the news media as the public. Faced with the prospect of complex, expensive litigation with uncertain outcomes, the companies are choosing to settle, not fight. Most of the public will not complain -- certainly not those citizens who own Gannett's high-octane stock in their pension or mutual funds. Ten million dollars is cheap compared to the cost of years of litigation with Chiquita. (A year earlier, Knight Ridder shelled out more than $20 million to compromise a long-running lawsuit from a former Philadelphia prosecutor after spending millions of dollars for a strenuous but unsuccessful defense effort.) Generally, the public would cheer the comeuppance and punishment of a reporter whose newsgathering had strayed across ethical and legal lines. Most people would not see that they were being denied information about the world around them.
Criticizing the decisions of the media companies is not a simple matter since, ironically, many of the relevant facts are not readily available. In Gannett's case, the Enquirer's carefully crafted apology for "creating a false and misleading impression of Chiquita's business practices" seemed to be limited to information gathered through reporter Mike Gallagher's interception of company voice-mail messages. There was no explicit retraction of the factual underpinnings or all key allegations of the eighteen-page article. Two weeks after the apology, however, The New York Times reported that "some of the allegations [of Chiquita's chicanery] cannot be dismissed" as easily as the company might want. "Determining the validity of the newspaper's claims is difficult," the Times said in a lengthy assessment by Douglas Frantz headlined "Chiquita Still Under Cloud After Newspaper's Retreat." The Securities and Exchange Commission continued to investigate assertions in the article that the company covered up a bribery scheme by employees in Colombia. Chiquita was furious with the Times story, since it had been largely successful at neutralizing the impact of the Enquirer series by deflecting attention to the newspaper's reporting practices.
At least some Cincinnati readers were not happy with the lack of clarity. Commented one local man in the Enquirer:
It is the Enquirer's responsibility...to now attempt to clarify which allegations are factual, which are not, and which others cannot be verified by legal means. If, as I fear, part of the settlement with Chiquita involved an agreement to no longer report on this matter in any way, then this would constitute an egregious violation of journalistic ethics, much worse than the actions of a few rogue Enquirer reporters. Why? Because this would represent an institutional decision to deny readers the truth, which we are relying on the Enquirer to report.
The American Journalism Review concluded: "There are no winners in this story. The public is left confused about what, if anything, Chiquita did wrong and doubts about the ethics of journalism have been reinforced."
Atop the Gannett corporate headquarters in Washington, Chairman John Curley and Vice-Chairman Douglas McCorkindale weren't explaining. They couldn't. A confidentiality agreement with Chiquita had silenced them. There would be no exculpatory spinning here. Chiquita's lawyer, Thomas Yannucci, had driven a hard bargain. Yannucci, a polished stone from the same law firm that housed Kenneth Starr, Kirkland & Ellis, has developed a thriving career in recent years representing the rich and powerful with gripes against the news media. He had first plowed this fertile but hitherto unbroken ground in 1993 when he had helped General Motors demolish NBC's Dateline story on exploding trucks. Since then, he has advised more than fifty clients angry about media coverage. The $10 million bounty on Gannett's humiliation promised many more.
It would not be right, however, to see Yannucci as taking advantage of simpering rubes. Gannett's Curley and McCorkindale command respect in the industry as tough-minded, unsentimental corporate managers. Wall Street investment bankers love them, or at least pretend to. From their office windows overlooking the Potomac River, the Gannett officers can see the national monuments, the National Archives, where the Constitution is kept, and beyond, all the way to Capitol Hill and the Supreme Court. But the long view did not pollute what they clearly felt was a prudent call for Gannett's shareholders. The courts would not have dealt kindly with the newspaper, they suspected. And, if the corporation was lucky, its insurance carrier would be forced to pick up the lion's share of the $10-million-plus settlement. The company's mortification over the Enquirer's flawed journalism would be painful, but at least the financial damage had been contained. In the 1980s, Katharine Graham's Washington Post Company had spent approximately $2 million defending a front-page news article which had reported that the president of Mobil had "set his son up" in the oil shipping business. The investigative story of corporate nepotism and favoritism had eventually been vindicated on appeal after a trial jury had socked the newspaper with a verdict of $250,000 in compensatory damages and $1.8 million in punitive damages. The $2 million of defense costs had been "real" money; the Post's libel insurance policy did not reimburse for legal fees or other court expenses. Gannett would not be sloshing through the chillier and unpredictable waters swirling in the court system now. Things had changed. Decidedly for the worse.
Two other factors augured in favor of Curley and McCorkindale making a quick settlement. One was their adversary, Carl Lindner. The other was the comforting knowledge that they were not alone. Other major news organizations had compromised claims brought by powerful complainants, rather than take the arduous road of fighting for stories with truthful elements.
Carl Lindner was well known to the Gannett executives. In the not-so-distant past, he had been a royal pain in the ass. There was considerable history here. Lindner had once owned the Enquirer, selling it in 1975 to Combined Communications, which, in turn, sold its newspapers and billboard business to Gannett for stock in 1979. With a resulting 4 percent stakehold in Gannett, Lindner began buying up Gannett stock until he owned more than 5 percent of the company, making him the second-largest stockholder. Nobody, however, was going to wrest control of Gannett from its then CEO, the indomitable Allen H. Neuharth. Neuharth was convinced that Lindner was trying to "steal" his company. In his autobiography, Confessions of an S.O.B., he called him a "shark in sheep's clothing." He accused him of "greenmail" when Linder "demanded $50 million more than market value for his stock holdings in the company." When Lindner eventually lost his bid for a big buyback bonus and a pitch for board representation, Neuharth bought advertisements in major national newspapers saluting Gannett shareholders for rebuffing "funny money financiers." The ads didn't mention Lindner's name, but they didn't have to. Lindner was irate and dumped his Gannett stock at market value.
Undaunted, Lindner continued on his lifelong path of buying and selling hundreds of businesses, constructing an empire estimated in 1998 at $13 billion. In Cincinnati, he is an unparalleled force. He glides around the city in one of his three Rolls-Royces, handing out cards that read: "Only in America. Gee, am I lucky." He is regarded as an eccentric genius -- Marge Schott's largest shareholder in the Cincinnati Reds, a philanthropic giant ($100 million to charities over the past decade), and a political benefactor of every politician (Republican or Democrat) who might be in a position to help him. Clinton, Dole, Gingrich, Gephardt and some fifty members of Congress from 1991 to 1996 have received contributions. Cincinnati pols with any ambition whatsoever know the wisdom of seeking his support. In 1998, one such rising star in the Republican Party, county prosecutor Joe Deters, leapt to statewide office as treasurer of the state of Ohio. Deters had not been responsible for the criminal investigation into the illegal interception of Chiquita's voice mails. He had recused himself because of his closeness to Lindner. Instead, a special prosecutor had been appointed, who in the fall of 1998 obtained a guilty plea from reporter Mike Gallagher. Neither Deters nor others in the Cincinnati establishment were reluctant, however, to wonder out loud whether executives up the Gannett chain of command could be prosecuted for their knowledge of the voice-mail theft. This perception was a fundamental problem for the Gannett brass, especially since the Enquirer series about Chiquita had been read and approved all the way up to the top. Gallagher had lied to them, all the editors and executives said. Still, Deters wondered and the special prosecutor probed. Chiquita lawyer Tom Yannucci could paint an ugly picture of Gannett officers being besieged by career-ruining criminal prosecutions as well as civil lawsuits that sucked the life out of them.
Next to developing brain cancer or burying a child, about the worst thing that can happen to you at the end of the American century is to get caught and mired in the so-called justice system. It wrecked the hope of the Clinton presidency. It drains energies and resources, frustrates the hopeful and begs to be avoided. Business executives loathe the legal system, offensive as it is to cost-benefit analysis. Yet there are thought to be times -- usually when First Amendment freedoms are at stake -- that have traditionally called for media companies to absorb whatever pain and expense may accompany litigation in order to preserve the independence and vitality of journalism. Basically, it can be seen as a cost of doing business, like ink or transmission towers. The tricky decision is when to incur the cost. In deciding whether to defend against Carl Lindner's onslaught, the Gannett executives not only knew their enemy and their vulnerability from Gallagher's voice-mail interceptions; they also knew that other media companies were increasingly finding settlement the better part of valor. Other companies that had backed off rather than face the perils of a battle included:
In 1994, the network had broadcast a report suggesting that the tobacco industry was "spiking" the nicotine level of its products during manufacture. The story changed the nature of the public debate over the regulation of cigarettes. It also landed ABC in court in tobacco country. Philip Morris sued the network for $10 billion in Virginia, alleging that the segment was libelous. For over a year, ABC vigorously defended the case. But in the summer of 1995, its merger with the Walt Disney Co. looming ahead, the network settled the lawsuit, reimbursing Philip Morris for the cost of its legal fees (which amounted to roughly $15 million) and apologizing in prime time. While it is endlessly arguable whether "spiking" was an accurate characterization of the production process ABC had uncovered, subsequent reporting by The Wall Street Journal and others confirmed that tobacco companies can control and manage the level of nicotine during the manufacturing of cigarettes. In fact, ABC had filed a confidential summary judgment motion in the case, the contents of which were later leaked, that indicated that it had acquired considerable evidence during discovery to document that charge.
In another showdown between a cigarette giant and network news, Brown & Williamson successfully pressured CBS's 60 Minutes to cancel plans to broadcast an interview with industry whistle-blower Jeffrey Wigand in November 1995. CBS officials did not fear a libel action; rather, Brown & Williamson threatened to lob a newsgathering tort in its direction -- "tortious interference with business relations." According to this theory, CBS would have been liable for persuading Wigand to reveal internal company practices in violation of an agreement he had signed with Brown & Williamson promising not to do so. Several months later, The Wall Street Journal published its own version of Wigand's charges. 60 Minutes then broadcast its interview. Brown & Williamson did not file a lawsuit against either news organization.
NBC and CNN
Richard Jewell, the security guard who for months was a leading suspect in the bombing at the Atlanta Olympics, secured handsome payments from NBC and CNN after the FBI cleared him of all wrongdoing in October 1996. Jewell did not have to sue either network, just threaten. The NBC settlement, the terms of which were not disclosed, was later reported by The Wall Street Journal to approximate $500,000. The network admitted no wrongdoing or editorial error. Indeed, Jewell's potential libel case against the two networks was not strong -- they reported that he was a principal focus of the investigation, which was true. But, highlighting the attenuated protection for newsgathering, NBC stated that shielding "confidential sources was a major consideration" in its decision. Jewell has used the proceeds of these settlements in part to pursue his defamation suits against the Atlanta Journal & Constitution, among others.
More than any of these surrenders by the television networks, the Gannett transaction with Chiquita was a watershed moment for the American media. It heralded the arrival of a full-scale crisis of unprecedented and systematic proportions -- one that undermines our ability to comprehend our lives and times. Throughout the second half of the twentieth century, America's communications companies had fought diligently -- and with mostly stunning success -- to expand First Amendment rights to gather and report the news. No more. Loathed and distrusted by the public they hunger to serve, the media are discovering that their crumbling credibility with the public is reflected in the courts. Judges, dismayed by the media's newsgathering practices, are cutting back on constitutional protections for the press. The "breathing space" which Justice William Brennan once saw as essential for the press to report on public affairs is evaporating. The U.S. Supreme Court maintains a stony silence.
The signs of this crisis are everywhere. First Amendment law is stagnating in a nation grown as cynical about the value of free expression as it is enraptured with the dream of becoming a software millionaire and retiring to Aspen. Libel verdicts of enormous size are mounting in every part of the country: $220 million in Houston, $13 million in Miami, $3 million in Wilmington, Delaware. Mistakes in the media, once thought deserving of only passing notice, now command center stage. CNN and Time retract an implausible story about Vietnam and its star reporters, Peter Arnett and Christiane Amanpour, publicly squabble over the extent of a television correspondent's responsibility for the authenticity of a story. Lost in the media's egocentricity is the horizon the public sees rather clearly: the economic imperatives of the communications media, the star system of celebrity journalism and the need to supply the public with constant reinforcement or shock therapy have combined to make fools, not truth-seekers, out of journalists. A golden age that for fifty years saw the creation and expansion of a First Amendment right of the public to receive information has concluded.
This book is about expectations, the hopelessly unrealistic expectations we have for our news media and the media's equally vain desire to be well regarded at the same time as it slips away from its own traditional notions of public service. It is a book about what each player contributes to a deteriorating, destructive relationship that is endangering our nation and growing more ugly and tendentious. It is about how the public's anger toward the media is being played out in the nation's courts, where judge after judge is limiting the public's right to receive information all in the name of controlling the "profiteering" news media, to use the adjective favored by federal judge Susan Webber Wright in a 1998 decision involving the Paula Jones sexual harassment case which seethed with contempt for the press.
Some of the finest journalists of our times, James Fallows, E.J. Dionne, Howard Kurtz, James Squires, have described during the last decade the wounds their profession has inflicted upon itself. Their work has documented the wretched excesses and foolish pride of a gigantic media institution that overwhelms our public life, just as it becomes more irrelevant and an object of ridicule in our personal lives. Their focus on the sins of the media inevitably tends to make it seem as if the media bears responsibility for the gulf that has developed between it and the public. But it's more complicated than that. The media alone cannot be blamed for its credibility problems with the public. As in a troubled marriage, the public itself contributes to the disintegrating relationship at the same time as it points the finger at a ubiquitous, annoying media. These contributions come from shadowy quarters of our lives -- our endless prurient interest, our moral confusions, our lazy, unthinking and undifferentiating way of approaching prepackaged news, our tolerance of declining educational standards and our preference for clarity (and simple answers) in a world of nuance and complexity. At the outset, this book explores the root causes for the public's hostility toward the media. It sifts through the historical evidence, including polling surveys and media criticism, of recent decades. It addresses the most common complaints of the public about the media -- sensationalism and bias. It looks at how we participate in the media's false branding and stereotyping of public people. It seeks to clarify the ambiguities and contradictions inherent in our relationship with the media. The second part of the book moves on to examine the unhappy consequences for a nation that has traditionally been strong and secure enough to tolerate (even encourage) its media to be bumptious and offensive.
Shooting the messenger may be a time-honored emotional response to unwelcome news, but it is not a very effective method of remaining well informed. The consequences of the growing canyon of distrust between the public and the media are already discernible and should worry us even more than the knowledge that we understand the situation poorly. For the result of the public's misplaced fury has been a palpable willingness to silence the media -- to curtail its ability to gather and report the news, and to make us more dependent than ever on the government for our understanding of human events. There is no more certain road to the loss of freedom.
Excerpted from Don't Shoot the Messenger by Bruce W. Sanford Copyright © 2000 by Bruce W. Sanford. Excerpted by permission.
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