foxBGHsuit/Update Page

We Distort, You Decide
FOX CONTINUES NEWS DISTORTION AFTER LOSS
News and Comment
By STEVE WILSON

        It ought to be a lesson plan for every journalism educator in America.
        You'd think any self-respecting news organization just slapped with a $425,000 jury verdict based on a finding that its managers and lawyers acted intentionally and deliberately to falsify or distort a series of investigative reports would show a little humility, if not remorse.
        But a jury verdict against Fox Television and in favor of a TV reporter who was fired for threatening to blow the whistle to the FCC has prompted Rupert Murdoch's Media Empire to not only misstate the jury's findings but to crow to anyone who will listen that the decision completely vindicates its good name and reputation.

BILL McDANIELS
One of Williams & Connolly's Best?

It’s the kind of spin you’d expect when a defendant has the bottomless pockets to hire the likes of Williams & Connolly. You'll recall it was defense lawyers from that Washington firm that managed to help President Clinton hold onto his job largely by explaining away his misconduct and clarifying the definition of the word “is.”

It’s also the kind of spin most of us are used to from companies that get caught polluting our environment or knowingly selling products that kill. But when it's a news organization stretching the truth about something as fundamentally shameful as getting caught violating the public trust by pressuring a reporter to lie on the air, and then the same news organization insists on distorting the news about its own misconduct, somebody somewhere in journalism ought to pay attention and have the courage to speak up.

Background

If you’re new to this saga, here’s a quick catch-up:
Fox-owned WTVT in Tampa decided in 1996 that it needed to “up the profile” of its investigative reporting unit. Station officials recruited and hired Jane Akre and Steve Wilson, an award-winning husband-and-wife team with nearly 50 years of broadcast news experience between them at places like CBS in New York, ABC in San Francisco, and CNN in Atlanta.

STEVE WILSON

The station told the journalists to go out and produce hard-hitting, 60 Minutes-style inves-
tigative reporting. Expensive new commercials were produced showing

JANE AKRE

a team that looked like the Mod Squad, walking down a dark, smoke-filled alley while a deep baritone voice made viewers a promise: “The Investigators: uncovering the truth, getting results, protecting you!"
        Fox managers made a promise to the journalists, too. They promised the reporters that when their stories generated the inevitable heat and pressure from the subjects of their investigative reports, station managers would stand up and support them and ultimately broadcast the truth. They promised that the people and companies who would threaten to sue or cancel their advertising would never force the station back down and pull the stories, or edit the heart of them.
         But when Akre discovered that virtually all of the milk in Florida (and throughout much of the nation) has been affected by the secret use of a controversial bovine growth hormone linked to cancer, everything changed after Fox News chief Roger Ailes received two toughly-worded threat letters from Monsanto, the hormone maker. One of the letters predicted “dire consequences” if Akre’s story were broadcast.
        What followed, according to testimony in the five-week-long trial that ended this summer (August 18) in Tampa, was an effort by Fox managers

· to enlist the reporters help in covering up the story after Monsanto applied pressure (the reporters refused)

· a threat from the station manager who told both journalists they would be fired in 48 hours if they would not go along with the station’s desire to either bury the story or edit it in a way to appease Monsanto (the reporters said they’d report such misconduct to the FCC)

· a six-figure cash offer from the station manager to entice the journalists to drop their ethical objections and the story the way Monsanto preferred to have it reported (the reporters declined, after getting the Fox offer in writing)

· a nine-month process in which station managers and lawyers ordered the reporters to re-write the story 83 times, none of which was ever acceptable for broadcast

· a three-week lockout and suspension without pay, unless the reporters would continue to work and provide a script exactly as the lawyers dictated (the reporters provided such a script, noted why it was inaccurate and slanted—and also provided a second version which reflected the truth as the journalists understood and documented it...Fox never interrupted the reporters' pay)

· dismissal of both reporters “for no cause” just before Christmas 1997

When a Fox attorney provided written acknowledgement to the reporters that they were fired for their refusal to broadcast the story the way they were told, the two filed suit seeking protection under Florida’s Whistleblower law. (As in many states, Florida protects workers who are fired either for refusing to participate in an activity that is against the law, or for threatening to report such activity to a government agency.)

CAROLYN Y. FORREST
HER LETTER SHOWED FOX'S TRUE MOTIVE FOR FIRINGS

The Jury Speaks

     After sifting through the evidence for more than a month, the three-man, three-woman jury deliberated six hours (on August 18, 2000) before concluding that Akre was terminated solely for her threat to alert the FCC about Fox’s misconduct in deliberately pressuring her to broadcast a false or distorted news report.
        The jury did not sustain Wilson’s complaint, probably because Fox raised other issues as possible reasons for his termination. Defense attorneys argued to the jury, for instance, that his research and discussion of the story on the Internet violated the confidentiality provisions of his contract.
        The jury instructions clearly stated that the sole reason for dismissal had to be retaliation for whistleblower-protected activity. “An employee may not recover in any action brought under the private whistleblower statute if the retaliatory personnel action was predicated upon a ground other than the employer’s exercise of a right protected by the Whistleblower statute,” as is written on Page 12 of the jury instructions
        The same instructions—all 32 pages of them—clearly set forth the standard of proof that was required in order for either of the plaintiffs to prevail with their claim.
        For instance, on page 5, the jury was instructed:            “…proof of a violation (of Florida’s Whistleblower law) requires that the Plaintiffs establish that WTVT’s station or news management acted intentionally and deliberately to falsify or distort the Plaintiff’s news report on BGH. In addition, the alleged falsification or distortion must have involved a significant event or a matter that affected the basic accuracy of the news report and not merely a minor or incidental aspect of the report.”
        The instructions went on to explain (on Page 9, heading reads Florida Private Whistleblower Statute—Elements)
        "On the plaintiff’s claim of retaliatory personnel action in violation of Florida (Whistleblower law), each plaintiff has the burden of proving each and every one of the three elements…”
        Page 10 then set forth the first element that each plaintiff must prove: A) that he or she threatened to blow the whistle to the FCC about the unlawful editing, “and, or in the alternative, that B) he or she objected to or refused to participate in the unlawful slanting or distortion in connection with the editing of the BGH story.
        On Page 11, the second element was that each plaintiff must prove he or she had a reasonable good-faith belief that Fox’s conduct in connection with the editing was in violation of the FCC’s prohibition against deliberate falsification or distortion of the news.
        And the third element, as specified on Page 12, was that each plaintiff must prove that the station took retaliatory personnel action because of the reporter’s threat to disclose AND/OR because the reporter objected to pr refused to participate in the editing which the reporter had a reasonable, good-faith belief that such editing amount to deliberate distortion or falsification of the news if the story were broadcast.
        And then, on Page 15 of the instructions, under the heading “Florida Private Whistleblower Statute—Burden of Proof,” the jury was instructed:
        “If you find that the plaintiff has established all the elements of his or her claim by the greater weight of the evidence, then your verdict in this claim should be for the plaintiff. If, on the other hand, you find that the plaintiff has failed to establish at least one of the other elements of his or her claim, by the greater weight of the evidence, then your verdict on this claim should be for the defendant.”
        To say that the Fox defense attorneys were stunned by the jury’s finding and the award of nearly half-a-million dollars in damages could be the understatement of the year.