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Courts Rule in Akre/Wilson rBGH Case That the Media Can Deliberately Lie

THE
AGRIBUSINESS
EXAMINER
February 25, 2003, Issue #224
Monitoring Corporate Agribusiness
From a Public Interest Perspective

EDITOR\PUBLISHER; A.V. Krebs
E-MAIL: avkrebs@earthlink.net
WEB SITE: http://www.ea1.com/CARP/
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CONTRIBUTION$ WELCOME!!!

COMMENTARY: 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
Stations, Inc.

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
--- contact:
http://www.foxBGHsuit.com

FLORIDA APPEALS COURT
OVERTURNS AKRE AWARD

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

NEW WORLD COMMUNICATIONS OF
TAMPA, INC., d/b/a WTVT-TV
Appellant

v.
Case No. 2D01-529

JANE AKRE
Appellee.

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,
for Appellee.

Roy C. Young of Young, vanAssenderp,
Varnadoe & Anderson, P.A., Tallahassee,
for Amicus Curiae The Florida Chamber
of Commerce.

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
Stations, Inc.

KELLY, Judge.

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 ú which the FCC has called its "news distortion
policy" ú 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.

EDITOR'S NOTE

Preparing to post this special 224th edition of THE AGRIBUSINESS EXAMINER it
is gratifying to know that over 1100 people throughout the world are currently
receiving it on a regular basis and judging from comments received feel it is a valuable
source of information. However, it is also quite troubling to realize that less than 4.5% of that
readership has ever seen fit to make any contributions toward its continued existence.

To that small cadre of contributors this editor can only express his
profound gratitude and appreciation for I realize that in some cases even a small donation was a
sacrifice for them.

From the outset it was never the purpose of THE AGRIBUSINESS EXAMINER to
charge a subscription fee for the original intention of this newsletter was
to get it into as many hands as possible as a vehicle for monitoring corporate agribusiness from a
public interest perspective, just as was the establishing of a web site
[http://www.ea1.com/CARP/] to provide facts, background, analysis and educational information on
corporate agribusiness.

Thanks to the generosity and creativity of the editor's oldest son David and
his business colleagues at ElectricArrow in Seattle, Washington that sight is being
maintained on a virtual pro bono basis.

Having said all this, may I repeat CONTRIBUTIONS FROM READERS are always and
will always be most welcomed for editors of such publications as THE AGRIBUSINESS
EXAMINER can not always live on bread and water alone. Such checks made out
to A.V.
Krebs can be sent to P.O. Box 2201, Everett, Washington 98203.

 

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