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.