RALPH NADER COMING TO TESTIFY?

TAMPA (October 13, 1999) In a decision sure to stun Fox Television and its high-priced Washington lawyers, a second Florida state court judge has refused to dismiss the whistleblower lawsuit filed by investigative reporters Steve Wilson and Jane Akre who say they were fired for refusing to lie on the air at WTVT in Tampa.

The latest ruling by Judge Gaspar Ficarrotta soundly rejects all of the arguments put forth by the nation’s biggest chain of television stations, including its position that no jury should ever be allowed to decide whether a station wanted to slant or distort a news report.

Fox contended that only the FCC has the authority to review and pass judgment on a TV station’s news decisions and they argued the FCC "never has and never would" find any licensee guilty of deliberate distortion of the news in any case remotely similar to that brought by Wilson and Akre.

The decision virtually guarantees that the case will go to before a Tampa jury, although an exact trial date remains uncertain. The trial which has been twice delayed at the request of Fox was scheduled to start last Monday (October 11) but a crowded court docket has resulted in an indefinite delay.

The decision is also significant because it means that broadcasters (at least in Florida) are not automatically immune from suits brought by their own journalists who, like Wilson and Akre, claim they were suspended and fired for refusing to distort the news and for threatening to blow the whistle on a station’s alleged misconduct. The Tampa plaintiffs say that’s exactly what happened to them when they tried to broadcast the truth about bovine growth hormone (BGH) on Channel 13 in Tampa after Fox took control of the station in early 1997.

Fox’s latest effort to have the case dismissed without a trial was the work of a beefed-up defense team headed by lawyers from Williams & Connolly, the D.C. firm that has represented President Clinton in his Whitewater and impeachment troubles. The Washington attorneys David Kendall, Bill McDaniels and others were retained after local counsel Patricia Anderson and William McGowan in Florida lost both a Motion To Dismiss and the first Motion For Summary Judgment.

McDaniels and his colleagues submitted more than eight pounds of paperwork and personally argued before the court that the reporters’ claim was "disconnected from reality" and should be summarily dismissed. After previously losing it’s argument that there is no law, rule, or regulation against slanting the news, the broadcaster’s latest assault on the reporters’ claim was based on several grounds, all rejected by Judge Ficarrotta.

"This is another important victory for the public’s right to know," said plaintiff Steve Wilson. "Our legal team may not represent the President of the United States but this ruling shows that with the facts in this case, our own home team of Tampa lawyers can and ultimately will prevail over the best legal talent money can buy."

Wilson has represented himself through most of the pre-trial proceedings, primarily to cut expenses on the litigation which has already cost Fox more than $1 million according to reliable sources. Akre is represented by Steve Wenzel (of Wenzel & Fenton) and John Chamblee (of Chamblee & Johnson). It was Chamblee and Wilson who submitted written briefs and made the successful oral arguments in opposition to the Fox motion.

The BGH Bulletin requested comment from Fox attorneys and their client but a written request was ignored. Fox lawyer Gary Roberts, who once told the plaintiffs, "This case will never get to trial," also refused to comment.

The ruling keeps the case on track for a trial which was to have begun last Monday but has been delayed indefinitely due to the Judge’s crowded docket. There have been indications that the matter might not be heard until next Spring.

The journalists have indicated they intend to call consumer activist Ralph Nader as an expert on the public interest. WTVT and all stations that use the public airwaves are required to operate in the public interest.

Fox has filed motion after motion designed to limit who can testify and what the jury can hear at trial. The defendants are seeking to block any testimony by Nader and virtually all of the other expert witnesses who have been listed to appear and testify on behalf of the journalists about journalism and science issues related to the case.

They are also seeking to eliminate any testimony about the two large cash offers Fox made the reporters long before they were fired and the suit was filed. Both times the broadcaster offered the reporters six-figure sums conditioned on a promise they would never publicly discuss what they discovered about Florida’s milk supply or the way Fox handled the news story.

Wilson and Akre have both said they viewed the payments as hush money designed to protect Fox and its dairy and grocery advertisers, all of whom preferred the truth not be told. The plaintiffs are opposing all of the motions aimed at hiding the truth from a jury, too.

"Apparently, if they can’t keep the case out of court altogether, their next strategy is to conceal most of the relevant information a jury can hear," said co-plaintiff Akre. "There seems to be no end to the efforts these people will make to try and cover their tracks and hide what they did. When the evidence is finally laid out in open courtroom, it will be easy to see why."