EDITOR\PUBLISHER; A.V. Krebs
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DUCT TAPING LADY JUSTICE
Lost in the fog of war, the fiery trail of Columbia, orange "alerts," and the continuing deterioration of our civil liberties was a verdict on February 14 handed down by the Court of Appeal of the Florida Second District. In that verdict the Court in essence said technically it is not against any law, rule, or regulation to deliberately lie or distort the news on a television broadcast.
The three judge panel thus reversed the previous $$425,000 jury verdict in favor of journalist Jane Akre who charged she was pressured by FOX Television management and lawyers to air what she knew and documented to be false information concerning the widespread use of the Monsanto manufactured rBGH hormone.
Akre and her TV producer-reporter husband Steve Wilson had prepared a WTVT/FOX13 documentary on how Florida dairymen had been secretly injecting the genetically engineered rBGH into their cows and how Florida supermarkets quietly reneged on promises not to sell milk from treated cows until the hormone gained widespread acceptance by consumers.
In their subsequent law suit the reporters charged in detail FOX Television --- the cable network that each and every day should make Joseph Paul Goebbels prouder and prouder --- owned by Rupert Murdoch's multi-national News Corp, strongly pressured by Monsanto, with violating the state's whistleblower act by firing the journalists for refusing to broadcast false reports and threatening to report the station's conduct to the Federal Communications Commission (FCC).
As Akre noted after the verdict, "the `threshold issue' the court wrote --- and all it ruled upon --- was whether the technical qualifications for a whistleblower claim were ever met by me. In Florida, to file such a claim, the employer misconduct must be a violation of an adopted law, rule or regulation. FOX argued from the first --- and repeatedly failed in front of three different judges --- to have the case tossed out on the grounds there is no hard, fast, and written rule against deliberate distortion of the news.
"In essence," she adds, " the news organization owned by media baron Rupert Murdoch, argued the First Amendment gives broadcasters the right to even lie or deliberately distort news reports on the public airwaves."
Akre recalls: " Prior to our dismissal, Station Manager Dave Boylan, a career salesman without any roots in journalism and seemingly lacking the devotion to serve the public interest that motivates all good investigative reporting, had flaunted the company's wealth in an attempt to make us back down. "We paid $3 billion for these stations," he told us on one occasion. "We'll tell you what the news is. The news is what we say it is!"
It should also come as no surprise that the attorneys for FOX who argued that point came from the highly connected Washington, D.C. law firm of Williams & Connolly. Yes, the same firm which defended former President Bill Clinton during his impeachment trial and who also unsuccessfully defended two Archer Daniels Midland (ADM) executives in their lysine price-fixing trial, where the nation's largest grain processing company was fined $100 Million and the executives were sent to federal prison.
The reporters provided details in their suit charging that FOX television, strongly pressured by BGH-maker Monsanto, with not only violating the state’s whistleblower act by firing the them for refusing to broadcast false reports and threatening to report the station’s conduct to the FCC, but violating their contracts in dismissing them for those reasons. The award-winning husband and wife journalists filed the suit after struggling with FOX executives most of 1997 to get the story on the air. They were ultimately dismissed December 2, 1997 after submitting over 80 re-writes of their script, all rejected by the station.
"Every editor has the right to kill a story and any honest reporter will tell you that happens from time to time when a news organization’s self interest wins out over thepublic interest," said Wilson, the station’s former senior investigative reporter who helped Akre produce the story and was one of the plaintiffs in the suit.
"But when media managers who are not journalists have so little regard for the public trust that they actually order reporters to broadcast false information and slant the truth to curry the favor or avoid the wrath of special interests as happened here, that is the day any responsible reporter has to stand up and say, ‘No way!’ That is what Jane and I said in our lawsuit," Wilson declared.
"We are parents ourselves," Akre adds, "It is not right for the station to withhold this important health information and solely as a matter of conscience we will not aid and abet their effort to cover this up any longer," she said. "Every parent and every consumer have the right to know what they’re pouring on their children’s morning cereal."
"We set out to tell Florida consumers the truth a giant chemical company and a powerful dairy lobby clearly doesn’t want them to know," Wilson continued. "That used to be something investigative reporters won awards for. As we’ve learned the hard way, it’s something you can be fired for these days whenever a news organization places more value on its bottom line than on delivering the news to its viewers honestly."
Since filing their lawsuit Akre and Wilson were among the six winners of the 2001 Goldman Environmental Prize, the country's most prestigious conservation award. Founded and funded in 1990 by San Francisco philanthropists Richard and Rhoda Goldman, the prize annually distributes cash bequests to six of the planet's most deserving "environmental heroes." Each recipient represents one of Earth's six continental regions. Prizes are sometimes awarded to more than one person in each category. In 2001 each recipient received $125,000.
In noting their award PR Watch editors Sheldon Rampton and John Stauber rightfully pointed out, "journalists should examine this case and its implications. If the FOX network and Monsanto could destroy the careers of these two seasoned reporters, the same thing could happen to anyone. With few resources other than courage and truth Akre and Wilson have struggled to place issues before the public that otherwise would remain hidden from view. In addition to their battle in the courts, they have used the skills they honed in the newsroom to fight back in the court of public opinion, refusing to be silenced."
Prior to their trial the couple also received a special award for Courage in Journalism from the Alliance for Democracy, a grassroots citizens activist group composed of members from throughout the country, in Boulder, Colorado at its third annual convention. The fired journalists also used the occasion to announce the formation of a Citizens Fund For The Right To Know, a legal aid fund established to support the case against FOX since Murdoch’s organization is said to have spent $1 million to defend itself so far.
In a pretrial deposition the long respected CBS News newsman Walter Cronkite appeared for more than an hour to provide expert testimony about the pre-broadcast/legal review process and the proper role of those involved --- the journalists, their news editors and executives, and the attorneys hired to protect the interests of the broadcasting company.
Cronkite, the dean of broadcast journalism and frequently referred to as "the
most trusted man in America," stepped down as managing editor and anchor of The
CBS Evening News in 1981. Since then he has continued to work as a Special
Correspondent for CBS News and has frequently spoken out against the direction
TV news has taken in the last several years.
A supporter of the highest ethical standards in journalism, Cronkite has in recent years frequently assailed what he’s called the "dumbing down" of news broadcasts and the philosophy that the bottom line has lately become the only line at many news organizations now owned and controlled by large corporations with few if any roots in journalism.
Without offering any judgments on the specific facts at issue in the Akre\Wilson trial case, Cronkite testified that every journalist has a strong duty to resist reporting false and distorted information, and responsible news organizations do not let lawyers dictate editorial decisions.
In overturning Akre's judgment the Court of Appeals opinion (see Below) held that the Federal Communications Commission position against news distortion is only a "policy," not a promulgated law, rule, or regulation.
The court also let stand without comment the jury verdict that awarded nothing to Wilson, Akre’s husband and co-plaintiff in the case. He aggressively represented himself at trial, paving the way for FOX attorneys to suggest he was as aggressive in the newsroom as he was in the courtroom and perhaps that was why he was fired.
In the course of pre-trail testimony, consumer advocate Ralph Nader, long a critic of the FCC, pointed out that the Federal commission has become "all about exonerating broadcasters instead of holding them accountable," Nader strongly disagreed with a key element of FOX’s defense strategy that even if some of the editing instructions given by lawyers and managers at WTVT might have slanted the story on rBGH, the broadcasting company is protected by the First Amendment and what the defendants say is the fact there is no law, rule or regulation to prohibit such distortion.
Nader cited an FCC case from1969 when the Commission said quite clearly that "rigging and slanting the news is a most heinous act against the public interest." The case stemmed from a CBS documentary. "Can you point to even one single station which has been sanctioned by the FCC for any case of alleged distortion of the news?" asked FOX lawyer and Clinton defender William McDaniels.
While Nader admitted the FCC has not investigated and prosecuted any such case, he added "We’re dealing with an agency going to extremes not to enforce the Communications Act." It is that law, adopted in 1934 and implemented through FCC policy and actions, that requires all broadcasters to operate in the public interest. They haven’t killed the public interest standard, but they certainly have anesthetized it!"
The FOX lawyer pressed Nader on his opposition to the abolition of the Fairness Doctrine, suggesting the FCC’s policy against news slanting and distortion may have died with it. The doctrine was abolished during the Reagan administration to the delight of broadcasters who claimed a law which forced them to be fair actually stifled free speech. "That claim was an observation so preposterous it hardly deserves any rebuttal," Nader said.
LIES, INJUSTICE AND
THE CORPORATE WAY !!!
As has been pointed out previously in THE AGRIBUSINESS EXAMINER, despite the efforts by FOX Television and the Florida Court of Appeals to obfuscate the jury verdict favoring Jane Akre by giving it a spin favorable to the corporation, and despite the fact that the nation’s media --- mainstream and alternative alike --- shamefully and scandalously almost totally ignored her and her husband's important suit and trial, the word must still go forth exactly what the six-person Hillsborough County jury determined.
"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?"
YES! the jury foreman announced.
As Akre herself reminds us "whistleblower protection has to do with retaliation. Remember, the question posed to the jurors was essentially this: did FOX retaliate because I `refused to participate in,’ AND/OR because I `threatened to disclose’ the broadcast of a false, distorted or slanted news report? The jury verdict does not say I had a "reasonable belief" the story was slanted, it says clearly that the story WAS false and slanted and my `reasonable belief’ was that the FCC would have validated my claim.
That is the message that needs to be spread far and wide: the jury verdict
said clearly that
the FOX version of the rBGH story WAS false and slanted and that Jane Akre’s "reasonable belief" was that the FCC would have validated her claim.
FOX stations in your own city or state now need to be confronted with that fact and the fact that as a major national and international "news organization" and as of late the media's principal cheerleader for going to war with Iraq, has been shown to have sent reporters scripts to investigative targets so they could edit them before the news editors decided what to broadcast.
In addition, FOX Television needs to be shamefully exposed that rather than taking pride in the fact that its reporters refuse to lay aside their professional ethics and moral responsibility at the corporate threshold and report the news accurately, truthfully and fairly they instead terminate such reporters because they refuse to broadcast "false, distorted or slanted news."
Those who genuinely care about the First Amendment, who believe in the public interest, who believe that individuals standing up for what is right and just can still make a difference in our corporatist culture surely must applaud the courage, heart, mettle and reverence for the truth displayed by Jane Akre and Steve Wilson.
To ignore the lessons learned about our media in the Akre\Wilson trial not only belies the all too common rhetoric we hear today about protecting the First Amendment to the U.S. Constitution, but it also paves the way for our news and information media to become nothing more than a 21st century corporate propaganda machine, rivaling those similar machines of the 20th century’s infamous fascist dictatorships.
One of those lessons can be seen at the outset of the Court of Appeal of the
Florida Second District's opinion for there listed as listed as Amicus Curiea
("Friends of the Court") are attorneys for the Florida Chamber of Commerce and
Belo Corp., Cox Television, Inc., Gannett Co., Inc., Media General Operations,
Inc., and Post-Newsweek
Is it any wonder in reading through this list why there was nearly a complete
blacking out and covering up of the trial by the national media ??? But what can
we expect from a
media that has itself become little more than a corporate apologist?
Not only the trial but when they were awarded the Goldman prize only two major newspapers devoted a story to their award --- the Chronicle in San Francisco were the prize was given and the Wall Street Journal which ran a feature story on the African continent's winner with two short paragraphs at the end of the article saying essentially "oh yes an American husband and wife journalist team from Florida won the America's continent prize."
Clearly, to do a proper story on their award would have necessitated explaining how and why they won the award, a task the corporate owned media was still unwilling to do.
Likewise, at the same time, the at best tepid support offered the two journalists during the trial by the nation's so-called liberal\progressive community, particularly farm, food, health and environmental organizations was certainly not one of their proudest moments. Scant coverage in their own publications of the Akre-Wilson law suit was shameful.
It is indeed an indictment on the liberal\progressive alternative media that Akre and Wilson had to resort to covering their own trial for lack of coverage, not only by the mainstream media, but by the liberal\progressive alternative media as well.
One could only wonder where all the alternative press Woodward-and-Bernstein wannabes that overran Seattle during the World Trade Organization (WTO) ministerial meetings with their reports and commentary ad nauseam were when Akre\Wilson were defending their rights in a Tampa, Florida courtroom.
At the same time the seeming unwillingness of the liberal\progressive community to make the issues at stake in the Akre\Wilson vs FOX Television case a focal point of local and national public attention calls into serious question its basic priorities.
For example, it is all well and good, as many liberal\progressive groups are currently doing, to raise the serious questions that need to be raised about the genetic engineering of our food supply, but attempts to be on the cutting edge of an issue should not blind these single-issue advocates to the fact that there are other relevant issues at stake in battling corporate power as we have seen being exercised by FOX in the Akre\Wilson case.
Freedom of speech , the integrity of the news that is broadcast over the public airwaves, the safety of our food,, the ability of reporters to tell stories that are free from the dictates of corporate coercion and a deliberate slanting of the news by those same corporations and media managers, are all issues vitally important to all Americans --- farmers, consumers, environmentalists, workers, scientists alike --- and to the future of democracy itself.
Clearly, the Akre\Wilson trial should be a clarion call for individual citizens and groups who say they believe in the Bill of Rights, who believe in "truth, justice and the American way" whether they be liberal\progressive, Republicrats, or whatever to stand up in unity against the modern-day dogma of "lies, injustice and the corporate way"
Most certainly fully supporting Jane Akre and Steve Wilson in whatever way
our individual and organizational talents and resources can, is one very
positive way such a goal can be accomplished. For additional information on the
suit and trial --- and ways you can help these two courageous reporters ---
FLORIDA APPEALS COURT
OVERTURNS AKRE AWARD
IN THE DISTRICT COURT OF APPEAL
NEW WORLD COMMUNICATIONS OF
TAMPA, INC., d/b/a WTVT-TV
Case No. 2D01-529
Opinion filed February 14, 2003.
Appeal from the Circuit Court
for Hillsborough County;
Ralph Steinberg, Judge.
William E. McDaniels and Thomas G.
Hentoff of Williams & Connolly LLP,
Washington, D.C., Patricia Fields
Anderson, P.A., St. Petersburg, and
Gary D. Roberts and Theodore A.
Russell of Fox Group Legal Department,
Los Angeles, California, for Appellant.
Michael S. Finch, St. Petersburg, and
Stuart C. Markman, Robert W. Ritsch,
and Katherine Earle Yanes of Kynes,
Markman & Felman, P.A., Tampa,
Roy C. Young of Young, vanAssenderp,
Varnadoe & Anderson, P.A., Tallahassee,
for Amicus Curiae The Florida Chamber
Robert Corn-Revere and Brad C.
Deutsch of Hogan & Hartson, LLP,
Washington, D.C., for Amicus Curiae
Belo Corp., Cox Television, Inc.,
Gannett Co., Inc., Media General
Operations, Inc., and Post-Newsweek
New World Communications of Tampa, Inc., d/b/a WTVT-TV, a subsidiary of FOX Television, challenges a judgment entered against it for violating Florida's private sector whistle-blower's statute, section 448.102, Florida Statutes (Supp. 1998). We reverse.
In December 1996, WTVT hired the appellee, Jane Akre, and her husband, Steve Wilson, as a husband-and-wife investigative reporting team. Shortly after Akre and Wilson arrived at WTVT, they began working on a story about the use of synthetic bovine growth hormone ("BGH") in Florida dairy cattle. Their work on this story led to what could be characterized as an eight-month tug-of-war between the reporters and WTVT’s management and lawyers over the content of the story. 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.
In September 1997, WTVT notified Akre and Wilson that it was exercising its option to terminate their employment contracts without cause. Akre and Wilson responded in writing to WTVT threatening to file a complaint with the Federal Communications Commission ("FCC") alleging that the station had "illegally" edited the still unfinished BGH report in violation of an FCC policy against federally licensed broadcasters deliberately distorting the news. The parties never resolved their differences regarding the content of the story, and consequently, the story never aired.
In April 1998, Akre and Wilson sued WTVT alleging, among other things, claims under the whistle-blower's statute. Those claims alleged that their terminations had been in retaliation for their resisting WTVT’s attempts to distort or suppress the BGH story and for threatening to report the alleged news distortion to the FCC. Akre also brought claims for declaratory relief and for breach of contract. After a four-week trial, a jury found against Wilson on all of his claims. The trial court directed a verdict against Akre on her breach of contract claim, Akre abandoned her claim for declaratory relief, and the trial court let her whistle-blower claims go to the jury. The jury rejected all of Akre’s claims except her claim that WTVT retaliated against her in response to her threat to disclose the alleged news distortion to the FCC. The jury awarded Akre $425,000 in damages.
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 portion of the whistle-blower's statute pertinent to this appeal prohibits retaliation against employees who have "[d]isclosed, or threatened to disclose," employer conduct that "is in violation of" a law, rule, or regulation. § 448.102(1)(3). The statute defines a "law, rule or regulation" as "includ[ing] any statute or . . . any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business." § 448.101(4), Fla. Stat. (1997). We agree with WTVT that the FCC’s policy against the intentional falsification of the news which the FCC has called its "news distortion policy" does not qualify as the required "law, rule, or regulation" under section 448.102.
The FCC has never published its news distortion policy as a regulation with definitive elements and defenses. Instead, the FCC has developed the policy through the adjudicatory process in decisions resolving challenges to broadcasters’ licenses. The policy’s roots can be traced to 1949 when the FCC first expressed its concern regarding deceptive news in very general terms stating that "[a] licensee would be abusing his position as a public trustee of these important means of mass communications were he to withhold from expression over his facilities relevant news of facts concerning a controversy or to slant or distort the news." See Chad Raphael, The FCC’s Broadcast News Distortion Rules: Regulation by Drooping Eyelid, 6 Comm. L. & Policy 485, 494 (2001) (quoting Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1246 (1949)).
The policy did not begin to take shape, however, until 1969 when the FCC was called upon to investigate complaints regarding news distortion. Raphael at 494. Notably, the FCC did not take the initiative to investigate these complaints, but rather acted only after Congress referred complaints it had received to the FCC. In a series of opinions issued in licensing proceedings between 1969 and 1973, the FCC stated that when considering the status of a broadcaster’s license, it would take into consideration proven instances of "deliberate news distortion," also called "intentional falsification of the news" or "rigging or slanting the news." In re CBS Program "Hunger in America", 20 F.C.C. 2d 143, 150-51 (1969). This series of FCC opinions has come to be known as the FCC’s news distortion policy.
Akre argues that the FCC’s policy is a rule as defined by section 120.52(15), Florida Statutes (1997), which provides:
"Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule."
Even if we agreed with Akre that the FCC’s news distortion policy was a "rule" as defined by section 120.52(15), her argument overlooks the fact that the whistle-blower's statute specifically limits the definition of "rule" to an "adopted" rule. § 448.101(4). "This limitation to ‘adopted’ material only appears deliberate, and well serves the public by hinging civil liability upon matters of which due notice, actual or imputed, has been conveyed." Forrester v. John B. Phipps, Inc., 643 So. 2d 1109 (Fla. 1st DCA 1994). We find the legislature’s use of the word "adopted" in the statute to be a limitation on the scope of conduct that will subject an employer to liability under the statute.
It is undisputed that the FCC’s news distortion policy has never been
"adopted" as defined by section 120.54, Florida Statutes (1997). In that regard,
Akre notes that federal agencies may announce general policies and interpretive
principles through the adjudicative process and argues that the fact that "the
FCC adopted the news distortion policy through an adjudicative process does not
affect its validity or enforceability as a matter of federal law." This argument
is flawed in two respects.
First, federal law recognizes a dichotomy between rulemaking and adjudication; it does not equate the two. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) (Scalia, J., concurring). Second, while federal agencies may have discretion to formulate policy through the adjudicative process, the same is not true under Florida law. The Florida Legislature has limited state agencies’ discretion to formulate policy through the adjudicative process by requiring agencies to formally adopt each agency statement that fits the definition of a "rule" under section 120.52. See § 120.54. As noted above, the legislature’s use of the word "adopted" in the whistle-blower's statute was deliberate and was intended to limit the scope of conduct that will subject an employer to liability. This limitation is consistent with the legislature’s requirement that agency statements that fit the definition of a "rule" be formally adopted. 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.
Because the FCC’s news distortion policy is not a "law, rule, or regulation" under section 448.102, Akre has failed to state a claim under the whistle-blower's statute. Accordingly, we reverse the judgment in her favor and remand for entry of ajudgment in favor of WTVT.
Reversed and remanded.
CASANUEVA, J., and GREEN, OLIVER L., SENIOR JUDGE, Concur.
Preparing to post this special 224th edition of THE AGRIBUSINESS EXAMINER it
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Krebs can be sent to P.O. Box 2201, Everett, Washington 98203.