The Fox, The Hounds, And The Sacred Cows, by Jane Akre

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The Fox, The Hounds, And The Sacred Cows, by Jane Akre

Postby admin » Sun Nov 12, 2017 10:45 pm

Part 1 of 2

Chapter 10: The Fox, The Hounds, And The Sacred Cows
by Jane Akre
From Revised and Expanded Into the Buzzsaw: Leading Journalists Expose the Myth of a Free Press
© 2004 by Kristina Borjesson

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Akre has spent twenty years as a network and local television reporter and anchor for news operations throughout the country. Most recently, she was investigative reporter and anchor for FOX-owned WTVT-TV in Tampa, Florida, where she was wrongfully terminated for refusing to broadcast a story they knew to be false and misleading. Besides anchoring, Akre has been a specialty reporter in the areas of health and medical issues as well as investigative and consumer reporting. She has won numerous awards for her work, including the prestigious Associated Press award for investigative reporting. Akre began her broadcasting career in Albuquerque as a radio news director and moved into TV in 1980 as a weekend anchor for ABC's Tucson affiliate. Later, she accepted a reporter-anchor position at KTVI in St. Louis. For three years she anchored and reported for CNN in Atlanta before moving to a main anchor position in San Francisco. Prior to anchoring in Tampa, Akre was a news anchor for WSVN in Miami.

LIGHTS, CAMERA, ACTION

It was an unusually cold November night for Florida. The three of us walked shoulder to shoulder, wrapped in our trench coats, the warmth from our breath visibly rising in the cold air. We were in a historic area of downtown Tampa, Ybor City, where Cuban settlers first began rolling the cigars that made Tampa famous. The streets were cobblestone, a fact not lost on my wobbly ankles as my pumps tried to maneuver the curves of the stone.

A lone spotlight shone brightly behind us, silhouetting the three of us as we walked a la Mod Squad. Julie, Link, and Pete on the case. Solid.

"All right, that was good; let's try it again."

It was television, or should I say the image of television news. My husband, Steve Wilson, and I were joining WTVT Channel 13, the soon-to-be FOX-owned television station in Tampa and, teamed with the station's consumer reporter, this nighttime stroll was the station's idea of promotion for its hard-hitting team to be known as "The Investigators." The former, longtime CBS affiliate wanted our forty-five-plus-years of broadcasting experience and lured us with promises of a flexible schedule and freedom to investigate stories of our choosing. It all sounded too good to be true.

Our first assignment was to join a film crew, complete with a smoke machine and bright movie lights, to shoot a commercial. In television, image is everything.


(Voice of baritone announcer)

"The Investigators,
Uncovering the Truth!
Getting Results ...
Protecting You!!!"


The spots started running almost immediately after we were hired in December 1996.

BETA

My photographer, Joel, and I started driving east early one weekend morning in January 1997. We were out to see if we could verify independently what I had been told by those inside the dairy business. Sources were saying that the majority of farmers in Florida and nationwide were injecting their cows with a powerful and controversial growth hormone that forced them to produce more milk. Although approved by the Food and Drug Administration (FDA), scientists around the world remained troubled with as-yet-unanswered questions about the drug's safety for consumers who drink the altered milk.

Besides, my then two-year-old daughter had just discovered and fallen deeply in love with ice cream. Sometimes the best stories come from self-interest.


We spotted a dairy from the car and drove up the gravelly drive. Dairy manager Ken Deaton was as friendly as he could be when we introduced ourselves as a news crew from the FOX station in Tampa. Deaton and a few dairy hands had just begun walking the black-and-white Holsteins into a dark, open-ended barn for their hormone injections. What luck! I thought.

We asked and Deaton did not hesitate to give us permission to take out our Betacam and begin shooting videotape that could become the cornerstone of the news report we were developing.

Each cow jumped as a three-inch-long needle was plunged deeply into her hindquarters. Posilac was the brand name of the product proudly displayed on the syringe and packages that Joel shot along with the name of the drug's maker, Monsanto.

Dairyman Deaton was happy to cooperate further, standing for a lengthy on-camera interview. Later we crouched down in a field and watched as January's cold brought on labor and the birth of two Holsteins, which Joel also recorded.

"Nature's most perfect food," I thought, might be a good beginning of a script describing the scene as the newborn calf Joel named "Beta" teetered on his shaky new legs while finding the first taste of milk.

We were off to a great start!

Little did I know that Beta would soon be shipped off to an early and cruel death at the nearby veal factory. And that this promising story -- as well as our own futures in television journalism -- would never survive the face-off that was to follow between Steve and me versus Rupert Murdoch's News Corporation and its very deep pockets.


DON'T ASK, DON'T TELL

Monsanto persistently refuses to release sales figures but claims rBGH (or rBST) is the largest-selling dairy animal drug in America. For about a dozen years, the chemical company and its rivals tested the hormone for its effect on animals. rBGH does indeed turn cows into milking machines, forcing virtually every injected animal to give more milk. But high producers almost always have more medical problems, and studies found that hormone-injected animals had more lameness, reproductive disorders, and a painful udder infection called mastitis. [1] To save the ailing cow, farmers almost always treat these infections with the same antibiotics doctors prescribe for humans when we and our children are ailing.

Industry studies also found that milk from injected cows was different from nature's version, having higher amounts of a spin-off hormone, insulin-like growth factor-1 (IGF-1). [2]

IGF-1 is widely regarded as one of the most powerful promoters of cell growth in all of nature.
After all, it is found primarily in mother's milk, which is supercharged with IGF-1 to spark growth.

But here's a primary concern of scientists around the world: IGF-1 doesn't differentiate between "good cells" and "bad cells" and is known to stimulate the growth of cancerous cells as well. So, will it promote the growth of cancerous cells in those drinking the supercharged milk?

My own research confirmed some truly alarming news for humans consuming milk from treated cows: the longest test for long-term human toxicity, such as cancer, lasted only ninety days on thirty rats. [3]

Ninety days. Thirty rats. And what's worse? Despite Monsanto's assurances that no rat suffered any adverse effects -- a claim that apparently convinced the FDA that no further testing of rBGH was required to assure human safety -- it was later revealed that about a third of the test rats actually developed cysts and lesions on their thyroids and prostates. Those responses, among others, were enough to prompt safety regulators in Canada to ban rBGH there until more thorough testing proves that the product is safe for humans. (Monsanto, having already convinced American regulators that the product is safe, has little incentive to do further testing and has announced no such plans.)

The Center for Veterinary Medicine (CVM), an arm of the FDA, which approves animal drugs, was charged with oversight of rBGH. Early on, CVM scientist Dr. Richard Burroughs asked too many questions about the lax safety studies required of Monsanto. "The drug review process has become more of an approval process," [4] he noted before suddenly finding himself "reassigned" to another job within the CVM.

Eventually, Burroughs was fired as a safety watchdog at the FDA, which ultimately gave the green light to Posilac, disregarding the concerns he and others raised.
Approval came in November 1993. No withdrawal period was required, no environmental impact statement was needed, and no testing for the possible long-term effects on the health of milk drinkers has been required to this day.

By February 1997 our story was ready to air. It attempted to answer some troubling questions: Why had Monsanto sued two small dairies to prevent them from labeling their milk as coming from cows not injected with the drug? Why had two Canadian health regulators claimed, like Richard Burroughs at the FDA, that their jobs were threatened -- and then said Monsanto offered them a bribe to give fast-track approval to the drug? Why did Florida supermarkets break their much-publicized promise to consumers that milk in the dairy case would not come from hormone-treated cows "until it gained widespread acceptance" among the wary public? And why, in large part because of concerns about human health, was the United States the only major industrialized nation to approve the use of this controversial genetically engineered hormone? [5]

LAWYERED UP

The four-part series took my photographer and me to five states and produced fifty videotapes yielding more than sixteen hours of pictures and sound. Steve was brought in to help produce the piece that was scheduled to run February 24, 1997, during a "sweeps" period.

As most savvy viewers know, advertising rates are set during those ratings periods, so many TV stations try to air their best work at such times to lure as many viewers as possible. (Others resort to sleazy sweeps gimmicks, but that's another book!)

Station managers were so proud of our work that they saturated virtually every Tampa Bay-area radio station with thousands of dollars' worth of ads urging viewers to watch what we'd uncovered about "The Mystery in Your Milk."

But then, our FOX managers' pride turned to panic. Friday evening before the scheduled airdate, Steve and I were called to the news director's office. "Read this," he said, handing us a fax. It was a letter from a New York law firm, Cadwalader, Wickersham & Taft, addressed to Roger Ailes, president of FOX News in New York. It was written on behalf of the firm's client, Monsanto Company, and John Walsh, the lawyer who authored the letter, minced no words.

Walsh charged in a letter that would later become a key piece of evidence in the dispute, that Steve and I had "no scientific competence" to report our story. Monsanto's attorney went on to describe our news reports, which he had ostensibly never seen, as a series of "recklessly made accusations that Monsanto has engaged in fraud, has published lies about food safety, has attempted to bribe government officials in a neighboring country and has been 'buying' favorable opinions about the product or its characteristics from reputable scientists in their respective fields."

He charged that we had conducted ourselves unethically in the field. And to make sure nobody missed the point, the attorney also reminded FOX News' chief that our behavior as investigative journalists was particularly dangerous in the "aftermath of the Food Lion verdict." [6] He was referring, of course, to the then recent case against ABC News that sent a frightening chill through every newsroom in America. The Food Lion verdict showed that even with irrefutable evidence from a hidden camera documenting the doctoring of potentially unsafe food sold to unsuspecting shoppers, a news organization that dares to expose a giant corporation could still lose big in court.

Confronted with these threats, FOX decided to "delay" broadcasting the story, ostensibly to double-check its accuracy. I remember leaving news director Daniel Webster's office but stopping at the door to ask an important question. I had to know whether he had lost faith in us or was frightened by the threat.

"Are you pulling the story because of the letters?" I asked. "Yes," he confirmed in a moment of honesty perhaps not rare for him, but increasingly uncommon in the executive suites of more and more news organizations struggling to maintain profits at virtually any cost these days.

One week later, the station's general manager screened our reports. We were lucky. General Manager Bob Franklin was a former investigative journalist himself. After he found no major problems with the story and we all agreed we could minimize legal risk in the wake of their lawyer's letter by offering Monsanto another interview, a new airdate was set. But Monsanto turned down the interview offer and directed John Walsh to write another threatening letter to Ailes in New York.

This time there was no room for interpretation. Walsh wrote in a letter dated February 28, 1997, that some of the points of the story "clearly contain the elements of defamatory statements which, if repeated in a broadcast, could lead to serious damage to Monsanto and dire consequences [italics mine] for FOX News." [7]


Never mind that I carried a milk crate full of documentation to support every word of our proposed broadcast. And never mind that we refuted all claims that we had acted improperly in our newsgathering and reporting. Our story was pulled again.

This time, if not dead, we knew our broadcasts were clearly on life support as FOX's own attorneys and its top-level managers, all of them anxious to avoid a legal challenge or lost advertising revenue, looked for some way to make the whole thing quietly go away.

KILL THE MESSENGER

Our story was pulled shortly after Rupert Murdoch's News Corporation formally closed the $3 billion deal to control WTVT and several other stations he added to his empire in early 1997, making the former Aussie (now a naturalized US citizen) the owner of more American TV stations than anyone else.

And it was not long after our struggle to air an honest report had begun that FOX fired both the news director and the general manager. Put in charge of the newsroom -- and presumably the fate of our story -- was an assistant news director once quoted as telling a reporter in another newsroom she ran, "This is not the TV news business, this is the entertainment business."

At WTVT, Steve and I were dumbstruck when we heard about her idea to park an empty Ryder truck in front of the Tampa federal building on the anniversary of the Oklahoma City bomb blast -- but that was not how we determined Sue Kawalerski's reputation was well earned.

Not long after we arrived, she had somehow decided there was more going on at local health clubs than merely exercise. Jaws dropped all around the table at a meeting of the entire investigative team when Sue suggested maybe one of us could visit a few of the more popular clubs and discreetly scrape the walls and take water samples from the hot tubs. Why? She thought it would be big news if we could discover semen samples that would prove her theory that some club members were involved in illicit sex, exposing other unsuspecting club members to some pretty unsanitary conditions.

And who had FOX chosen to ride herd on journalism leadership of that caliber? The new general manager was brought in from High Point, North Carolina. Dave Boylan had climbed his way into his first general manager's job at the FOX-owned station there and in a few short years had overseen revenue growth that impressed his corporate masters at FOX in Los Angeles. The GM job in Tampa, a big step up, was his payback.

Journalists are often apprehensive about working at stations where the general manager has no experience in journalism and is under constant pressure to protect the bottom line at virtually any cost. Too many times at too many places, such managers view the news as a commodity, not a public service. And when a strong investigative story brings a threat of expensive litigation or the subject of such a report is an advertiser who threatens to cancel and take his ad dollars elsewhere, managers revert to salesmen. They do whatever they feel they must to put the station's interest first, regardless of their obligation to use their broadcast license to serve the public interest.

It was not long after Boylan took over in March that Steve and I scheduled a visit. Perhaps we had an ally who could help get our stalled stories on the air.

We were not completely surprised to find Dave to be "salesman" all the way. Small talk filled our conversation in his glass-enclosed corner office, upstairs, overlooking the station's impressive fountain. A smiling Dave told us his wife collected "accessories" at the many furniture outlets back in High Point. Nice, I thought. Dave seemed sincere when he looked us in the eye and promised to look into the trouble we were having getting our rBGH story on the air. But when we returned a few days later, his strategy seemed clear.

"What would you do if I killed the story, would you tell anyone?" he asked. "Only if they ask," was Steve's response.

Dave started to sweat. Here were two reporters who clearly didn't know how the game was to be played.

He knew the local media writers had heard the radio ads for the milk series, and it wouldn't look good for the station's image if word leaked out that powerful advertisers, backed by lawyers threatening to sue, could actually determine what gets on the six o'clock news
-- and what gets swept under the rug. And Dave knew it wouldn't look good for Dave.

To resolve this dilemma, Dave called us into his corner office again a few days later. This time, he was much firmer.

He went on to explain that if we didn't agree to changes that Monsanto and FOX lawyers were insisting upon, we'd be fired for insubordination within forty-eight hours. Steve made it clear that those changes would result in broadcasting what we knew to be false and misleading information to the public. We pleaded with Dave to look for himself at the facts we'd uncovered, many of which conclusively disproved Monsanto's claims, both about its product and about our work to uncover the truth.

We reminded him of the importance of the facts about a basic food most of our viewers consume and feed to their children daily. This was news, we told him. His reply: "We paid $3 billion for these television stations. We'll tell you what the news is. The news is what we say it is!"

There wasn't much to say after that. "Is this a hill you're both willing to die on?" Dave asked. I could see the disappointment and anger on Steve's face. Before we got up from Dave's plush couch and left his office, Steve was firm but respectful when he made it clear we would neither lie nor distort any part of the story. And if insisting upon an honest report ended up costing us our jobs, Steve told him we'd be obligated to report that kind of misconduct to the Federal Communications Commission.

Forty-eight hours came and went. Dave never called, not until about a week later when he invited us back to layout the deal. We'd be paid full salaries and benefits through the rest of the year in exchange for an agreement that we would drop our ethical objections and broadcast the rBGH story in a way that would not upset Monsanto.

"Will you do the story exactly the way Carolyn wants?" Dave asked. Carolyn Forrest, the FOX attorney based in Atlanta, would have the final say on the exact wording of our report. And after the carefully sanitized version aired, we would be free to do whatever we pleased -- as long as we forever kept our mouths shut about the entire episode, Monsanto's influence, the FOX response, and we could never ever utter a public word about what we'd learned about the growth hormone.

FOX made it clear we would never be free to report the story for any other news organizations, not for any broadcast or print media, even if they weren't FOX competitors. Never, anywhere, not even at our daughter's PTA could we utter a word about how our milk has changed in what many believe is a dangerous way.


As journalists, Steve and I badly wanted to get the story on the air so the public could make its own judgment. But a buyout, no matter how lucrative for us personally, was out of the question. Neither of us could fathom taking hush money to shut up about a public health issue that absolutely and by any standard deserved to see the light of day.

After asking for and receiving the deal [italics mine] in writing, we politely declined the offer -- and told Dave we'd decided to just hold onto the written document that laid out his deal.

MEANWHILE, BEHIND THE SCENES

Behind the scenes, Monsanto's threatening letters didn't stop. In January I had interviewed Roger Natzke, a dairy science professor at the University of Florida. Everything had gone well; he'd even given me a guided tour of the "Monsanto Dairy Barn" at the Gainesville dairy school where Posilac had been tested in the mid-1980s. Natzke gave the product a glowing report and admitted he promoted its use to farmers through Florida's taxpayer-supported agriculture extension offices. After spending a few hours with him, Natzke even gave us directions to a good lunch joint.

The professor must have forgotten about our pleasant exchange when he called the station to complain about my reporting techniques, one month after the interview. "She's not a reporter" was part of the phone message a secretary took for the assistant news director. The words "St. Simon's Island" were also scrawled on the note.

"What does that mean?" I asked. The assistant news director apparently did not see any connection or conflict in the fact that Natzke admitted that he had just returned from a weekend at the island resort -- courtesy of Monsanto.

The pieces of the puzzle behind the Monsanto pressure began falling into place. Natzke's complaint call came the same week as the Monsanto threat letters arrived. And not until months later in the discovery phase of our lawsuit did we learn that a third threat arrived at the station that same week from a local dairyman, Joe Wright.

Wright had spent no more than five minutes on the phone with me the month before in an uneventful conversation about the dairy business. Based on that conversation, he wrote a letter to the station saying, "Ms. Acre's [sic] work is gaining notoriety in our dairy industry.... The word is clearly out on the street that Ms. Acre is on a negative campaign based on everyone's assessment of the numerous interviews she has already conducted."

Wright had reached these conclusions after attending the twenty-second Annual Southern Dairy Conference in Atlanta. That little confab was a veritable Who's Who of the dairy industry and apparently, our report was the topic of intense discussion there.

Following the conference, Wright went to Dairy Farmers Incorporated, a dairy industry promotion group, which helped draft his letter of complaint that FOX did not reveal to us at the time.


Also behind the scenes, another group calling itself the Dairy Coalition had launched a much stealthier attack on the story and us. An ad hoc group of dairy and pharmaceutical companies, the Dairy Coalition was formed around the time Posilac was approved by the FDA in 1993. The coalition's job was to help get the good word out about the growth hormone and defend it from any attacks from scientists and consumer groups who insisted more testing was needed.

As we were preparing our case for trial months after we were fired, Steve called the coalition's director, Dick Weiss. Steve said he was a reporter interested in the rBGH story, and what could Weiss tell him about the Dairy Coalition? And what about that rumor that a Tampa TV station had threatened to blow the whistle on the hormone?

Weiss obviously did not make the connection. Instead, he took great pride in bragging that the Dairy Coalition had "snowed the station with piles of paperwork and all sorts of pressure to have that story killed." He laughed like a college kid who had just pulled the best prank in the fraternity.


GETTING THE BOOT

The remainder of 1997, more than eight months, was spent on virtually nothing but this one story. Although they never told us at the time, FOX Television Stations president Mitchell Stern had ordered Carolyn Forrest to "take no risk" with the story. That directive meant cutting out everything that Monsanto, the dairy industry, and even grocers would find offensive and cause for pulling their ads or sparking a lawsuit.

"A risk of cancer?" You don't need to use that word, said company lawyers. Instead, call it "human health implications."
The credentials of our scientists critical of the Monsanto product? We don't need their credentials, said FOX, just call him a "scientist from Wisconsin." Meanwhile, tell viewers that the FDA reviewed all human health concerns before approving the drug, insisted the assistant news director. The problem with that was that many of the studies were done postapproval, we told her. Do it anyway, she insisted.

FOX threatened us with our jobs every time we resisted the dozens of mandated changes that would sanitize the story, and fill it with lies and distortions. "You'll be charged with insubordination," the general manager threatened, if we didn't do what the lawyers wanted.

In our four decades in the business, Steve and I had never seen a news-editing process that was so incredibly one-sided, and so clearly designed to make the story more palatable to Monsanto.

No case better illustrates why lawyers should never be in charge of the editorial process of reporting the news. Lawyer Carolyn Forrest's mandate was to protect the station against litigation, to "take no risks" that the station would ever have to stand up for the truth in court. Ours was to work, first and foremost, in the public interest to find and broadcast as many facts as we could reasonably report.

Forrest could never understand why we insisted on investigating Monsanto's glowing claims about its product. "While some say this, Monsanto says that" was her approach. Just let the viewers sort it out.

She and a lot of lawyers like her cannot understand the difference between a reporter, especially an investigative reporter, and a stenographer. A reporter's obligation is always to explore the claims made by all voices in any story, critics and proponents alike. If a claim doesn't hold water, we have the obligation to show why not.

But none of that mattered to our friends at FOX who like to boast about news that is "fair and balanced," different than all the others. "We report, you decide" is their motto. During one May phone review of the latest script, after we had faxed her more documentation, Forrest finally leveled with us. "You guys just don't get it. It doesn't matter whether the facts are true. This story just isn't worth a couple of hundred thousand dollars to go up against Monsanto."

So, we suggested, just kill the story. We fully recognize that the employer has the right to set whatever litigation risk level it chooses. In the end, no story was preferable to a story that was slanted and distorted. But the lawyers and FOX managers knew killing it would be a "major PR problem," as the local counsel wrote in his notes that also were turned over later during the discovery process. After all, FOX had already spent thousands of dollars on radio ads promoting the series, which were running the weekend before the scheduled airtime. Local newspaper media critics were anxiously awaiting the series. What would the station tell them if the story suddenly disappeared?

So write and rewrite we did. Eighty-three versions of the rBGH story and not one of them was acceptable to FOX lawyers. Instead, what we got was an offer for more hush money.
FOX's general manager presented us with an agreement, crafted by FOX counsel, that would give us a full year of our salaries and benefits worth close to $200,000 in no-show consulting jobs" with the same strings attached: no mention of how FOX covered up the story and no opportunity to ever expose the facts FOX refused to air.

Poor Dave Boylan was so exasperated when we turned down his second hush money offer, he just wagged his head and said, "I don't get it. What is it with you two? I just want people who want to be on TV!" And the sad truth is that today, many newsrooms are full of people like that who call themselves journalists.

At the first window in our contracts, December 2, 1997, we were both finally fired, allegedly for "no cause." But then, an angry-but-gloating Carolyn Forrest wrote a letter spelling out "there were definite reasons" for our dismissals. She went on to characterize our resistance to broadcasting the story as she directed as "unprofessional and inappropriate conduct."

As Steve commented when he read the letter, just what is the "professional and appropriate" response for a reporter when a station directs him or her to deliberately lie on television?

The Forrest letter would prove a major tactical error for FOX and the basis of our lawsuit.

FULL FRONTAL ASSAULT: OUR TRIAL AGAINST FOX

On April 2, 1998, we filed a lawsuit under the Florida Private Whistleblowers Act against FOX Television, the first of its kind for any journalist. Under the law, a whistle-blower is any employee, regardless of his profession, who suffers retaliation for refusing to participate in an illegal activity or threatening to report that illegal activity to authorities.

We argued that we were entitled to protection as whistle-blowers because the lies and distortions our employers wanted us to broadcast were not in the public interest and therefore violated the law and regulations of the Federal Communications Commission.


After FOX's local counsel lost two major efforts to have the suit derailed, FOX brass apparently decided they needed bigger, smarter, meaner lawyers. That's when they turned to Bill McDaniels and the Washington, DC, firm of Williams & Connolly, the same firm that Bill Clinton used to help him through Whitewater, Monica Lewinsky, and impeachment. It's the firm that crafted his famous redefinition of the word "is."

Several weeks before the start of the trial, in a scene right out of films like Class Action, Williams & Connolly camped out on the top two floors of the Hyatt Regency Hotel, one of the plushest in downtown Tampa. Using more than a dozen lawyers and some of the top firms around the country to help with various pretrial chores, FOX staff lawyers regularly flew back and forth, first class, between Los Angeles and Tampa.

We found ourselves practically living in an old downtown house that served as the offices of my own lawyers, John Chamblee and Tom Johnson. Both of them are extremely competent and well-respected labor and civil rights attorneys who rolled up their sleeves early on, prepared for a fight, and always kept their promise to stand with us no matter who and what the other side kept throwing our way.

Hours of late nights and their well-crafted legal briefs and courtroom appearances before three judges eventually allowed us to withstand all three motions by FOX, which was desperate to have the case thrown out of court without the spectacle of a public trial.

The case FOX had vowed would never go to trial was, after more than a two-year delay that forced us to sell our home and drain our savings, finally going to be heard by six jurors in a Tampa courtroom.

CRAZY LIKE A FOX

The FOX legal strategy was tightly woven from day one and helped by a well-coordinated team effort. Their defense: that we had turned our backs on the story and were using the whistle-blower claim as a "tactic." We missed deadlines, they claimed, and had told managers and lawyers from the first that we were "going to get Monsanto."

I watched as the attack on our competence as reporters softened with time, as it became evident the media conglomerate could be on the hook for defaming our reputations.

The FOX effort, though slick and united, was not flawless. FOX News director, Phil Metlin, told the six-person jury that if he ever learned that a news organization was trying to eliminate risk by using a threatening letter as "a road map" to craft a story, it would "make me want to throw up." Just a few days later, Metlin sat at the defense table with a blank stare when the local FOX counsel took the stand and bragged that he "could edit all risk out of a story" by using threatening letters from the subject (in this case, Monsanto) of the story as "a roadmap" to avoid lawsuits and other trouble for a station. By that, he said on the stand, you knew in advance the subject's hot spots and you could successfully avoid poking the beast. Unfortunately, it's sometimes those hotspots that are precisely the areas that need investigation, whether the subject likes it or not.

Metlin, a likeable but hapless Woody Allen kind of character, also didn't score any points with his bosses or the jurors when he admitted that he never found even a single error in our reporting of the rBGH story and saw no reason why our final version of the story could not have aired.


More than two years had passed since we filed our suit, and our former general manager, Dave Boylan, now had to be flown into town for his testimony. On the eve of the trial, FOX had rewarded him with another precious step up the FOX ladder-promotion to general manager of the FOX-owned station in Los Angeles, the second-biggest station in the group.

Boylan lost his bravado on the stand. He constantly shot quick and nervous smiles at the jurors while repeatedly looking over to the defense team after virtually every answer. During our cross-examination of Boylan, it helped that Steve knew exactly what had transpired during 1997. Earlier in the trial, it had been estimated that lost revenue in advertising from Monsanto ads for Roundup or Nutrasweet could have cost the station about $50,000. FOX bragged that $50,000 was nothing for an organization of its size, but Steve's relentless interrogation of Boylan showed that the actual cost of going up against Monsanto could have been much higher.

"You testified FOX owns twenty-three stations?" Steve asked.

"Yes," Boylan answered.

"Could Monsanto pull advertising off all twenty-three?"

"Yes."

"And the FOX News Channel?"

"Yes."

"And the Sky Channel in Europe?"

"Yes."

"It could extend well beyond $50,000, couldn't it Mr. Boylan?"

"It could," Boylan admitted.

Attorney Bill McDaniels earned the nickname "Thumper" from our team because he made an audible noise with his foot whenever he got nervous. And there was a lot of thumping during the presentation of our case, particularly when Ralph Nader took time from his presidential campaign to serve as an expert witness. Nader is generally recognized as the nation's premier consumer advocate and an expert in the public interest. In our case, we were trying to show the jury that it was not in the public's interest to have broadcasters intentionally distort the news. FOX had tried unsuccessfully, through repeated and desperate objections, to have Nader eliminated as an expert.

On the stand, Nader told the jurors what the FCC has repeatedly said: that it is "a most heinous act" to use the public's airwaves to slant, distort, and falsify the news." A reporter has a legal duty to act in accordance with the Communications Act of 1934 and in addition to their professional responsibility to be accurate, not to be used as an instrument of deception to the audience," Nader testified.


McDaniels also objected vehemently to Walter Cronkite's inclusion as an expert on our side. "Mr. Cronkite is not an expert in the pre-broadcast review of a story," the FOX counsel argued in all seriousness.

I couldn't believe my ears. For thirty years Walter Cronkite was the managing editor of the CBS Evening News. During Mr. Cronkite's deposition, McDaniels asked the eighty-three-year-old anchorman whether he was a lawyer and suggested to Cronkite that, unless he was an attorney, he couldn't be an expert in the prebroadcast review of a story.

In his deposition, Cronkite said that every ethical journalist should resist directives that would result in a false or slanted story being broadcast. "He should not go a micro inch toward that sort of thing. That is a violation of every principle of good journalism," Cronkite intoned.
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Re: The Fox, The Hounds, And The Sacred Cows, by Jane Akre

Postby admin » Sun Nov 12, 2017 10:45 pm

Part 2 of 2

THE RULING

After a five-week trial, the jury awarded me $425,000 but gave nothing to Steve. His last words to jurors in his closing argument, even if they felt his questioning of FOX witnesses was too aggressive in the courtroom -- and many times he went for the jugular as well as any trained litigant -- were: "Don't take it out on her."

Apparently the jurors listened. In representing himself, Steve realized there were risks, but there was also a lot to gain. His questioning of the defendant in the courtroom and during seventy-three depositions he conducted in five states and the District of Columbia, elicited some of the most damage to their side.

In any event, we view the verdict as a win for us both. Our trial was never about money. It was about a reporter's duty to resist and to blow the whistle loud and strong when he or she is being pressured to lie and distort the news over the public airwaves.

FOX immediately announced that it would appeal. "Your Honor, we just want our good name back," said FOX attorney McDaniels in arguing on two separate posttrial motions that the judge should throw out the jury's verdict.

In what seemed like a final act of desperation, McDaniels seemed to be tossing the entire network's credibility in the garbage by making an argument any legitimate news organization would be embarrassed to voice. The veteran lawyer told the judge, "there is no law, rule or regulation against slanting the news."

The judge denied both motions and allowed the jury's verdict to stand.

Steve planned to appeal as well. In the end, we suspect he received no monetary award because of what seems to have been an erroneous instruction from the judge to the jury. The jurors were told that in order to find for each of us, they had to determine that there was no other possible reason each was fired other than the fact that we resisted orders to lie on the air and threatened to blow the whistle to the FCC. Lawyers handling Steve's appeal argued that the standard should be the same as in cases of discrimination, that the discrimination must be an important reason, even if not the only reason, for an illegal dismissal.

FOX was looking at many years of appeal ahead of it-first to the Second District Court of Appeals in Florida, then on to the Florida Supreme Court, and eventually the US Supreme Court, if it is willing to hear the case.

Meanwhile, I had been out of work since being fired.

WE WIN; FOX SPINS

It was perfect. A television news organization just found guilty of slanting the news, was slanting the news regarding the ruling!

The jury rendered its verdict just after 5 PM Friday, August 18, 2000. FOX's Tampa station, which kept a camera in the courtroom and provided spotty coverage of the trial, ran the news of the verdict at or near the top of its 6 PM broadcast.

The report was a fairly straightforward item announcing to Tampa viewers that the jury had awarded me damages "because the station violated the state's whistle blower law." Anchorwoman Kelly Ring even went on to announce the reason for the verdict in my favor was "because she refused to lie in that report and threatened to tell the FCC about it."

But by 10 PM, the FOX corporate spinmeisters had rewritten the story entirely, crafting a devastatingly embarrassing loss into" good news" for their side.

"Today is a wonderful day for FOX 13, because I think we are completely vindicated on the finding of this jury that we do not distort news, we do not lie about the news, we do not slant the news, we are professionals," said FOX News Director Phil Metlin, looking rather uncomfortable on camera.


Metlin's statement is directly contradicted by the jury's own unanimous verdict so clearly stated on the official Verdict Form for Jane Akre, August 18, 2000. The jurors were asked to rule on this question:

Do you find that the Plaintiff, Jane Akre, has proven, by the greater weight of the evidence, that the Defendant, through its employees or agents, terminated her employment or took other retaliatory personnel action against her, because she threatened to disclose to the Federal Communications Commission under oath, in writing, the broadcast of a false, distorted, or slanted news report which she reasonably believed would violate the prohibition against intentional falsification or distortion of the news on television, if it were aired?


The jury's answer: "Yes."

If indeed FOX regarded the jury verdict as "complete vindication," the network would have abandoned its appeals, accepted the verdict, and paid up. But that didn't happen. FOX didn't want to miss a great opportunity to show its other employees what can happen if you mess with Murdoch.

SACRED COWS

You would think that our jury verdict -- granting reporters whistleblower protection and finding that a major network had slanted the news, a major network that was now insisting that there was no law against that kind of breach of trust -- would spark some interest from the news media itself.

Instead, the silence was deafening.


During our trial, a New York Times reporter kept calling asking what would be the best week to come cover the case. We spoke to him after the trial was over to find out why he never showed up. A big story related to the CBS series Survivor was breaking at the time, the media writer told us. He was just too busy.

One of the biggest names in investigative reporting for 60 Minutes sent a producer to spend nearly a week with us in the months preceding our trial. The producer gathered documents to take back to New York, but in the end CBS took a pass. The story was deemed to be "too inside baseball." Our translation: There's an unwritten rule that news organizations seldom turn their critical eye on themselves or even their competitors. The media are the last sacred cows.

A 60 Minutes producer later called to apologize and offer his support, "We're brothers in journalism," he said.

One might expect a little better from "Florida's Best Newspaper," as the St. Petersburg Times calls itself. Its reporter seemed intelligent and fair when she interviewed us after the jury's verdict. Imagine our surprise when we read the part of her story that said, "And the jury did not believe the couple's claim that the station bowed to pressure from Monsanto to alter the news report."

Steve called the reporter to ask how she could have written that we didn't meet the burden of proof in the case we had just won. "I didn't write that," she said, confessing that that paragraph was added later by an editor who did not spend any time in the courtroom and ultimately declined our request to correct and clarify his copy.


One cannot help but wonder what was said behind the scenes, as the same legal firm that frequently represents the St. Petersburg Times also represented FOX in the suit we won.

Bad copy takes on a life of its own. When Reliable Sources, the CNN program on the media, ran a blurb on the Saturday show following the verdict, the producer substantially repeated the St. Petersburg Times version of the story, again reporting the station didn't bow to pressure from Monsanto to alter the news report.

We sent the show's producer the jury instructions and the jury's verdict. Several weeks passed before we heard anything. Finally she got back to us, declining to correct her copy but opening the door to some correction down the road. We're still waiting.

For all the other television stations in Tampa, our trial and the issues it raised was basically a nonevent unworthy of any coverage. No broadcast station in the market (with the exception of the community radio station WMNF, a University of South Florida reporter, and the defendant FOX station that fired us) ever sent a reporter to cover our trial.

Even so, when the verdict was in, the news director at top-rated WFLA Channel 8 did not hesitate adding his two-cent instant analysis in a St. Petersburg Times postverdict story headlined, "Verdict Is Not Expected to Affect TV News."

While freely admitting that he "had no first-hand information about the case," WFLA's Dan Bradley nonetheless espoused that ours was merely a case about two reporters' "resistance to vetting."
Bradley should know that that conduct can get you immediately fired for insubordination at any television station, so why were we kept on for a full year?

After that article appeared, we offered to have lunch with Bradley. We were eager to avoid the embarrassment for both of us that comes from making irresponsible comments, and we wanted him to know the facts before he blurted out any further opinions. I got a rather curt e-mail in response: "Thank you for sharing your thoughts and comments with me regarding my quotes in the St. Petersburg Times article. I have no interest in discussing this any further and see no need to schedule a lunch with you."

St. Petersburg, Florida, is also home to the much-vaunted Poynter Institute for Media Studies. It's a journalism training center and think tank considered a credible resource on and for the media, its motives and inner workings. In 1997 as our battle began, we thought enough of Poynter to schedule a lunch with one of its ethics experts to ask him for some guidance. Could he or Poynter help mediate this situation to some resolution, we asked? We were told the institute has a policy of not getting involved in such situations,
especially when the news organization involved is right there in the Tampa Bay area.

Given Poynter's hands-off attitude when we sought assistance there, I was very disappointed to read a posttrial comment by another Poynter "expert," Al Tompkins. Also without a shred of firsthand knowledge of the issues, he jumped at the opportunity to be quoted as concluding ours "was not a watershed case." And when asked what reporters like me and Steve should do when pressed to distort the news, Tompkins told the St. Petersburg Times, reporters should "quit" and "walk away."

When Steve called Tompkins and suggested they meet to discuss what really happened, the Poynter fellow said that that would be a great idea; he'd call as soon as he returned from a trip. We never heard another word from him.

Taking an offer of hush money, as we were offered, allowing a news corporation to sanitize and distort a story out of fear or to curry favor, may keep your yolk intact and fuel in the Lexus, but it certainly betrays any reporter's commitment to the public.

We set out to tell Florida consumers the facts that a giant chemical company and a powerful dairy lobby clearly didn't want them to know. That used to be something investigative reporters won awards for. But these days, as we've learned the hard way, it's something you can be fired for whenever a news organization places more value on its bottom line than on honestly delivering the news to its viewers.

Right after we filed our lawsuit in April 1998, we were pleasantly surprised to find that the nation's largest journalism organization, the Society of Professional Journalists (SPJ), was awarding us its prestigious Ethics Award. At the SPJ annual meeting, past president Paul Brown said that the award was for our "refusing to incorporate false information into an investigative story about bovine growth hormone and then waged [sic] a post employment campaign to make sure the record was set straight in this case." We had received the Joe A. Callaway Award for Civic Courage from the Shafeek Nader Trust for the Community Interest, named after the late brother of Ralph and Claire Nader. In awarding the prize, Claire Nader said it was for those individuals who "take a public stance to advance truth and justice, and who challenged prevailing conditions in pursuit of common good."

The Alliance for Democracy honored us for Heroism in Journalism in 1999 and the prestigious Goldman Environmental Prize recognized us as North America's 2001 winners for outstanding environmental achievement in standing up for the truthfulness of the rBGH story. These accolades helped buoy us through some difficult days. The SPJ's 1998 award was particularly gratifying because a group of our own colleagues was standing up to show support. But not for long.

Almost as soon as the news was out, a FOX employee and others affiliated with the local chapter of SPJ, starting writing letters to the ethics committee chairman questioning why the award was given when there was no outcome in our lawsuit.


To his credit, committee chairman Steve Geimann stood up for his decision and quoted the SPJ's code of ethics that says, "deny favored treatment to advertisers and special interests and resist their pressure to influence news coverage." He reminded the critics that the courtroom is not always the best place to find the truth, something any journalist should know.

Geimann may have made his point and fended off the weaker-willed SPJ leaders who didn't want to offend their Tampa chapter, but imagine our surprise when the SPJ's legal defense fund turned us down for a small stipend to help offset the six-figures we owed the lawyers who brought us our victory.

They had turned us down at first because the lawsuit could be construed as an employment dispute and, in any event, our claims had not been proven. But even after the jury ruled in our favor, SPJ offered no further support.

Steve even flew to Columbus, Ohio, to make our case before the group's board of directors at its national conference. When the group's legal fund chairman -- Christine Tatum of the Chicago Tribune -- told her fellow directors, "I don't think we want to be picking a fight with big news organizations over who they hire and fire and why," our fate was sealed. Although we finally got strong support from the Tampa-area directors and others, SPJ's president, president-elect, and others voted us down.

Some board members claimed they were troubled that this was not a First Amendment case but a labor dispute. Surely they knew that the First Amendment does not cover reporters inside a news organization. It is a protection to keep government from restricting a free press. When the press itself is willing to disregard its public trust and individual reporters who are employees stand up to stop it, it will always be "a labor dispute."

There are plenty of good journalists working today in places where they are pressured to put good journalism on the back burner of the stove of a fast-cooking corporation bent on maintaining profit margins not to be found in any other industry. We have heard from many of those fine reporters constantly conflicted about how to respond to pressure to slant the news everywhere from local community papers to big-city dailies and television networks.

The choices we made to resist orders to distort the news have proven much easier to make than to live with, but they must come from within the journalism community. How can anyone who calls himself or herself a journalist betray a trust that is the bond between all journalists and the public they serve?

Sadly, we see it being done with greater frequency throughout the so-called mainstream media, by honest people who fear they just cannot stand up and say no without facing the destruction of their careers and their families -- and by lots of well-dressed people who just want to be on TV.


YOU GOTTA HAVE FRIENDS

On September 13, 2001, a number of well-known, megamedia companies became FOX's friends in the courtroom, filing an amicus cunae* brief. The Belo Corporation, Cox Television, Gannett company, Media General, and Post-Newsweek stations, while not active participants in our litigation, added their voices in support of the defense-Rupert Murdoch's News Corporation.

Just what exactly were they supporting? Had anyone from these corporate newsrooms sat in during our trial, covered it for their news outlets, or even debated Steve and me at a journalism conference, I might be able to be convinced that the issues of journalism were the basis of this newfound friendship with FOX. But not a single representative from any one of these news organizations made such an effort. Not one of them ever filed a story on our case. Not once did they consult our lawyers. I shouldn't be surprised that this friendship is not about the news business, but the news business.

Stay out of our newsrooms, the amici (friends) argued. The First Amendment gives them the right to control what goes on behind the sacrosanct newsroom doors, they argued. But as they rallied round the flag, these media giants and their Washington, DC-based lobbyists were working vigorously behind the scenes to dismantle any government restrictions they didn't like, such as those limiting the number of television stations one owner can control, equal time for political candidates, and fairness and obscenity standards.

As the friends said, nearly forty states have whistle-blower laws, and this case could lead to many more editorial disputes being aired in the courtroom, and that wouldn't be good for business. (Read the Amicus brief and others on the http://www.foxbghsuit.com Web site.)

FOX and its media friends seemed to be ignoring what is getting them in trouble these days. Instead of joining forces to keep reporters in their place, they might fare better if they did a little soulsearching and got behind independent journalism forums where editorial voices, free of commercial concerns, can hear and decide internal disputes while ensuring that the corporations are acting in the public interest. This, in theory, is the FCC's role, but it has been years since that federal agency punished a broadcaster for not acting in the public interest. The FCC now spends most of its time doling out the public's airwaves to private owners who make the most convincing arguments. So, who is watching out for the public interest? Essentially, no one.

It's time for news corporations to take seriously the news end of the news. Maybe then viewers would catch on and start watching again, and reporters wouldn't have to put their jobs on the line and expose the internal workings of a news organization in open court, just to do their jobs properly.

Our competent appeals lawyers, Stuart Markman and Michael Finch, believe that this case will define whistle-blower labor law for private companies and will likely make its way to the Florida Supreme Court. Certainly, FOX will take it there if it loses this first round.

MY FUNNY VALENTINE

It was Valentine's Day 2003. My daughter, Alyx, and I made one of our rare trips from Florida to visit Steve in Detroit. The bitter-cold nine-degree weather felt like a knife cutting through our exposed hands and heads.

Our little family was firmly ensconced in the warmth of Mongolian Barbeque in trendy Royal Oak. We sat down before our bowls of hot vegetables sauteed with the meats, tofu, sauces, and seeds from the buffet. Even Alyx would eat here, which was something of a small miracle.

Steve had a sheepish look on his face. "Do you want to see it now?" he asked. Naturally, I thought, it's Valentine's Day and he's going to hand me a small box with a trinket of his appreciation. All right, I didn't really think that that was likely, but it did occur to me that I might think that.

Instead, what I got was news that was nine months in the making. Steve pulled out a document from his coat pocket. The Second District Court of Appeal in Florida had issued its decision that morning while Alyx and I were on a plane. "Cut to the chase," I said, grabbing it, my eyes scanning as fast as I could absorb the words. I turned to the last paragraph on page six -- the kicker:

Accordingly, we reverse the judgment in her favor and remand for entry of a judgment in favor of WTVT. Reversed and remanded.


Reversed and remanded. Reversed and remanded. The victory we fought so hard for had been overturned. The $425,000 the court had ordered FOX to pay us was gone. Gone was the opportunity to collect legal fees from FOX that would have paid our lawyers. And FOX could claim it had its good name back. All because of a technical victory on an obscure point of law.

Remanded meant it would be sent back to the lower court to erase the five weeks of work the jurors had committed to us, to be entered now as a victory for FOX. Kelly, Green, and Casanueva -- the three wise judges -- knew better than six jurors who had listened to the evidence.

What the Second District Court of Appeal decided was that since the FCC's news distortion policy had never been "adopted" as a law, rule, or regulation, there is no protection for news employees who blow the whistle on that gross violation under Florida law:


While WTVT has raised a number of challenges to the judgment obtained by Akre, we need not address each challenge because we find as a threshold matter that Akre failed to state a claim under the whistle-blower's statute.


The judges took the easy road. And they took nine months to issue an opinion that could have been written in a day if it was so crystal clear. Hanging their robes on the "threshold" issue meant they never had to open the door to the heart of the issue -- news distortion by FOX and whether the media conglomerate retaliated against an employee who fought FOX management's efforts to slant, distort, and falsify a story.

What struck me was how disposed the judges appeared toward FOX, evident in how they characterized the torturous editing process:

Each time the station asked Wilson and Akre to provide supporting documentation for statements in the story or to make changes in the content of the story, the reporters accused the station of attempting to distort the story to favor the manufacturer of BGH.


The opinion was written by Judge Patricia J. Kelly, who was appointed to the Second District Court of Appeal by Gov. Jeb Bush, and who began serving in December of 2001.

And the three-judge panel was very mindful of the effect their ruling could have on other Florida employers (remember, the Florida Chamber of Commerce signed on as a Friend of the Court as did five major news organizations):

Recognizing an uncodified agency policy developed through the adjudicative process as the equivalent of a formally adopted rule is not consistent with this policy, and it would expand the scope of conduct that could subject an employer to liability beyond what Florida's legislature could have contemplated when it enacted the whistle-blower's statute.


My lawyers had argued that there were various ways to adopt a law, rule, or regulation outside of codifying it, publishing it, putting it up for public discussion and then statutorily defining it, and adopting it through the legislative process. In Florida a policy that describes the procedure or practice of an agency and is enforceable is, nonetheless, a form of law, and this case was tried under Florida law, not federal, a fine point of the law that eluded Judge Kelly.

Besides, FOX had made the, "law, rule, or regulation," argument at least a half dozen times to avoid trial. Four judges had rejected that argument, and it was rejected each time. Finally, FOX found a sympathetic ear -- six of them, actually.

What a slap in the face to the public. You can no longer assume that broadcasters, using your commodity -- the airwaves -- free of charge, won't lie to you.
FOX and its media Friends of the Court are essentially thumbing their collectives noses at the FCC, underscoring the commission's reticence to enforce its own policies, procedures, and rules and begging the question: If the FCC can't regulate broadcasters, who or what can?

BUT WAIT! THERE'S MORE!

A couple of days later, the judges issued the kicker:

BY ORDER OF THE COURT:

Appellant Steve Wilson's motion for attorney's fees is denied.


And on another page:

BY ORDER OF THE COURT:

Appellant's motion for attorney's fees is granted in an amount to be set by the trial court.


There was one of these for each of us. FOX's motion to collect from us attorney's fees that they'd amassed while filing their appeal of my victory, had been granted. Suddenly, the hounds were being chased by the FOX.

We devised a plan with our attorneys. We'd appeal to Judges Green, Kelly, and Casanueva to allow the entire panel of judges in the second district, fourteen in all, to hear the case en banc, as it's called. Together, we hoped, they would come to a saner conclusion. If they opted not to do that, we would then ask that our case be certified as one of great public importance and that the Florida Supreme Court be allowed to hear its merits. Our appeal would ask them to consider whether whistleblowers should ever be saddled with the other side's legal fees.

In the past, the Florida Supreme Court had consistently and liberally construed the whistle-blower law in favor of employees to give them the widest possible remedy through the courts. Otherwise, it's a dagger through the heart of any potential whistle-blower. Who in their right mind would come forward if there were a possibility that they would have to bear the entire weight of the other side's legal expenses -- even if they won at trial?


As for the "no law, rule, or regulation against news distortion" issue -- going back to the same judges seemed futile. They made their preferences very clear. No veil of ignorance would suddenly lift from their eyes. To pursue it, we'd be throwing good money after bad for an indeterminate period of time.

Just short of Valentine's Day 2004 (they must like this date), Steve got a brief, terse answer:

Appellant's motions for rehearing, clarification, rehearing en banc and certification of question of great public importance are denied.


Our avenue to get Steve's case before the Florida Supreme Court had been denied. And the court let stand Steve's burden to pay FOX's appellate fees, which could run into the hundreds of thousands of dollars.

Three weeks later, my ruling said that I should not be on the hook for FOX's appeals costs even though my case lacked legal merit, and in direct contradiction to numerous trial judges who let it continue to trial on its merits. But I was denied an opportunity to take the issue of public importance before the Florida Supreme Court.

And the judges cut FOX some slack by lowering the burden it had to meet to eventually collect on trial costs:

On remand, the trial court will have to make its own determination regarding whether to award trial court attorney's fees to WTVT as the prevailing party. To be entitled to such an award, however, WTVT does not have to demonstrate that Akre's suit was frivolous. No further motions for rehearing will be entertained.


Murdoch's lawyers had spared no expense flying first class to more than seventy depositions, billing at least $525 an hour, staying in the best hotels, hiring trial consultants, and booking the entire top floor of a hotel near our court to prepare for trial. Now, the court said, we could be on the hook for those expenses, too, if the trial judge grants it. What better way to make an example of two former, disgruntled employees?

It took FOX one month to submit its tab. The trial, they said, should cost us $1.5 million. Add in the fees/costs for Steve's appeal, and we are at $1,698,465.92. The ninety-two cents is a nice touch.


HOLD THE PRESSES!

Just as soon as we put one version of this story to bed, there's an update. That's the way it's been for the almost eight years and counting that we've been on the receiving end of a steady stream of painful reminders that we live under a cloud of litigation that shapes our lives everyday.

The latest news comes four years to the day, even to the hour, of my whistle-blower victory in court. At an August 18, 2004, hearing, Florida Circuit Judge Vivian Maye decided that Steve and I do not have to pay FOX nearly two million dollars in trial fees. That was the amount FOX requested as "reasonable" reimbursement for the millions it says it spent defending itself from our charges that the "We Report, You Decide" network falsifies the news.

That was good news, but we are not off the hook. Still pending is whether FOX is entitled to about sixty thousand dollars in appellate costs for me and nearly forty thousand dollars in trial level costs for both of us. And the Second District Court of Appeal -- the FOX-friendly appellate division that overturned our initial courtroom victory -- has decided that Steve absolutely must reimburse his appellate costs and fees of more than one hundred thousand dollars, largely because he lost at trial. The only thing left to mediate is exactly how much.

So let's tally up the cost for practicing good journalism here. We spent hundreds of thousands of dollars to get to trial. We win at trial and then lose in a questionable ruling that any decent news organization should be embarrassed to voice. Then we have to pay the FOX distorter-reporters after eight years of litigation. Then there's all the time spent away from our daughter, career loss from becoming radioactive, loss of future earnings, stress to our fragile relationship, and health problems for Steve.

We did the right thing for the right reason, and I stand by that and all of its implications. But still, I'm outraged. I'm outraged that among journalists there is no outrage. I'm outraged that no journalism organizations came to our side as friends of the court and outraged that journalists continue to be blind to and mute about the implications of this ruling: that journalist whistle-blowers can be saddled with huge costs after winning before a jury, and that there is "no law, rule, or regulation" against news distortion.


HELLO? IS ANYONE HOME?

Do journalists remember why they got into the field? To challenge the status quo, right wrongs, uncover truths hiding in dark places. I know it's not fashionable to get too passionate about anything, but what journalism needs is a good kick in the butt. Ask yourself if you still have any outrage left. Follow it. It might be good for your journalist's soul and remind you who you are. To fail to be outraged at something like this might ultimately be the worst punishment of all. I know I'm just getting started.

Read the decisions at http://www.2dca.com/ by clicking on Opinions; the dates are February 14, 2003, and February 25, 2004, or go to http://www.foxbghsuit.com.

A NOTE ON SOURCES

The story of rBGH began long before I began looking into it in November 1996. For many years, before and after its approval, citizens and scientists have tracked its progress through the system. Monsanto studied the genetically engineered hormone as an animal drug for about a decade, and some of those studies have been made available. The source notes on rBGH studies were among the dozens used to research the original story.

The controversy over rBGH has traveled recently to Canada and the European Union, both of which decided to reject the drug for use in those countries. Numerous articles have been written on the international rejection of rBGH. Since our departure from FOX, Steve and I have conducted an interview with the Health Canada regulators, who spoke of pressure from Monsanto to approve the drug, and Richard Burroughs, formerly of the FDA.

In addition, more than seventy-three depositions taken in preparation for trial yielded some helpful information on what happened to this story within FOX and why. Depositions were conducted on Roger Ailes of FOX News; Dave Boylan, general manager for FOX, now in Los Angeles; Phil Metlin, news director; as well as many FOX employees who were at the station at the time we worked there. In addition, a Monsanto spokesman was deposed as well as several lawyers for FOX, a couple of dairy farmers, and the dairy scientist at the University of Florida. These depositions are part of the court record, and the majority of them have been videotaped. The threatening letters from Monsanto are also part of the public record, attached as Exhibits C and E in the case of Steve "Wilson and Jane Akre v. New World Communications of Tampa, Inc., a Florida Corporation d/b/a WTVT Channel 13, Tampa. FOX 13 is a wholly owned subsidiary of News Corporation.

In this chapter, I mention the Food Lion verdict. It is well known within America's newsrooms for having had an immense, chilling effect on investigative reporting. In this case, producers for ABC News obtained jobs working at deli counters and meat handling areas of Food Lion stores in South Carolina and North Carolina. Viewers of an ABC PrimeTime Live program that was broadcast in November 1992, saw hidden camera video of Food Lion employees repackaging and redating fish, grinding expired beef with fresh beef, and applying barbeque sauce to old chicken to mask the smell.

Food Lion sued ABC and was awarded $5.5 million in January 1997, though that was drastically reduced later.
In this case, the methods of news gathering were on trial more than the story. The case was precedent-setting in that Food Lion won without having to prove that the news report in question was false and malicious.

_______________

Notes:

*According to Merriam-Webster's Collegiate Dictionary, amicus curiae refers to a "professional person or organization that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question."

1. David S. Kronfeld, "Recombinant Bovine Somatotropin: Ethics of Communication and Animal Welfare," Swedish Veterinary Journal (1997); Michael K. Hansen, "Biotechnology and Milk: Benefit or Threat? An Analysis of Issues Related to BGH/BST Use in the Dairy Industry," Mount Vernon, N.Y., Consumers Union/Consumer Policy Institute, 1990; Freedom of Information Summary, Animal Sciences Division of Monsanto Company, November 1983.

2. Judith C. Juskevich and C. Greg Guyer, "Bovine Growth Hormone Food Safety Evaluation," Science 249 (1990): 875-84; "NIH Technology Assessment Conference Statement on Bovine Somatotropin," Journal of the American Medical Association 265, no. 11 (1991): 1423-25; William H. Daughaday and David M. Barbano, "Bovine Somatotropin Supplementation of Dairy Cows: Is the Milk Safe?" Journal of the American Medical Association 264, no. 8 (1990): 1003-1005; C. G. Prosser et al., "Increased Secretion of Insulin-like Growth Factor-1 into Milk of Cows Treated with Recombinantly Derived Bovine Growth Hormone," Journal of Dairy Science 56 (1989): 1726; T. B. Mepham, "Public Health Implications of Bovine Somatotropin Use in Dairying: Siscussion [sic] Paper," Journal of the Royal Society of Medicine 85 (December 1992): 736-39; "Residues of Some Veterinary Drugs in Animals and Foods," Monograph prepared by the Fortieth Meeting of the Joint FAO/WHO Expert Committee of Food Additives, Geneva, June 1992; Michael Hansen, "Potential Public Health Impacts of the Use of Recombinant Bovine Somatotropin in Dairy Production," Prepared for a Scientific Review by the Joint Expert Committee of Food Additives, Consumer Policy Institute, September 1997.

3. Samuel S. Epstein, "Unlabeled Milk from Cows Treated with Biosynthetic Growth Hormones: A Case of Regulatory Abdication," International Journal of Health Sciences 26, no. 1 (1996): 173-85; Robert Cohen, Milk the Deadly Poison (Englewood Cliffs, NJ: Argus, 1997); Final Scientific Report of the Committee for Veterinary Medicinal Products on the application for marketing authorization submitted by the Eli Lilly company, January 1993 (Lilly was planning to market for Monsanto in Europe); Evaluation of Certain Veterinary Drug Residues in Food, FAO/WHO Expert Committee on Food Additives, Geneva, 1993.

4. Richard Burroughs, interview by author, New York, 2000.

5. Patrick Jasperse, "Monsanto Accused of Coercion Fighting 'BGH-free Labels,'" Milwaukee Journal, February 1994; Robert Steyer, "BST Has the Mail Moving on Ads, Monsanto Writes Warning Letters," St. Louis Post-Dispatch, February 1994; Associated Press, "Hormone to Debut with Debate as the Milk Booster Goes on Sale," Orlando Sentinel, February 1994; Letter to dairy farmer Joe Gore from Monsanto's Robert Deaking, US Operations, Monsanto, February 1994.

6. See note on sources.

7. John Walsh letter to Roger Ailes, 21 February 1997, Exhibit C, Steve Wilson and Jane Akre v. New World Communications of Tampa, Inc., a Florida Corporation d/b/a WTVT Channel 13, Tampa (a wholly owned subsidiary of News Corporation); John Walsh letter to Roger Ailes, 28 February 1997, Exhibit E in above case.
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