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Fox News Continues Persecution of Reporters Who Exposed Network Lies on Monsanto's rBGH

 

8/23/2004

(TAMPA)--A Florida judge has denied a Fox Television motion that would have forced its former investigative reporters Jane Akre and Steve Wilson to pay nearly $2 million in legal fees and court costs the broadcaster spent to defend itself at trial in the landmark whistleblower suit brought by the journalists.

In her ruling which followed a lengthy hearing in Tampa Wednesday (August 18), Judge Vivian Maye cited previous court decisions that allow judicial discretion in deciding whether whistleblowers must reimburse defense costs if they ultimately lose.

Still at issue are some additional court costs that Fox says it is entitled to collect from the journalists under different rules that apply at the appellate level. Fox took the case there and ultimately overturned the jury on a legal technicality last year. (There, the party that ultimately wins is generally allowed to collect appellate costs and fees from the losing party.)

Ironically, the ruling came four years to the very day and exact hour that a jury returned its landmark ruling in the case and a $425,000 award to reporter Jane Akre.

This latest decision stems from a case filed in 1998 by former Fox journalists Akre and Wilson who charged they were pressured to broadcast what they knew and documented to be lies about an artificial hormone injected into dairy cows, then fired when they refused and threatened to report the matter to the Federal Communications Commission.

After a five-week trial in 2000, a jury decided unanimously that Akre was fired solely because she threatened to blow the whistle to the FCC the broadcast of a false, distorted or slanted news report. The panel that found in Akre's favor awarded nothing to Wilson who represented himself at trial.

The Fox appeal was largely on an argument that it is not technically illegal for a broadcaster to deliberately distort the news on television. The appellate justices reasoned that since state law provides whistleblower protection only for employees who object to misconduct which is against an "adopted law, rule, or regulation" and they decided prohibitions against news distortion are merely a "policy" of the FCC, the reporters' eight-year-old lawsuit must have been without merit from its
inception.

"The appellate judges were wrong to overturn the jury on the notion that it's not illegal for a broadcaster to lie in a television news report," Akre said.

"And what's even more shameful is that a broadcaster would argue that the First Amendment is broad enough to protect outright lies and deliberate distortion," Wilson added. "Remember this case the next time you hear `fair and balanced,' or `we report, you decide'."

In her ruling yesterday, Judge Maye noted, "Three different trial court judges believed this case had legal merit." Six times before Fox appealed its loss, those judges rejected that very same argument, deciding prohibitions against deliberate distortion of the news on the public airwaves was more than a mere violation of government policy.

Reading from the Jury Verdict Form, she also noted that six disinterested jurors decided Fox fired Akre for no other reason than her objection to airing a report the jurors agreed was "false, distorted, or slanted."

Ironically, the decision came exactly four years to the day-and virtually to the very hour-that a jury returned a favorable verdict and $425,000 award for one of the reporters.

The journalists, who have already spent hundreds of thousands of dollars on their own costs and fees as plaintiffs, are not entirely off the hook for paying at least some of Fox's expenses. The broadcaster told the court it was seeking to recover only part of its total defense costs which is believed to be well over $3 million.

The appeals court which affirmed Wilson's loss at trial has ordered him to reimburse what Fox spent on court costs and attorneys' fees at the appellate level. Fox says that amount is about $130,000 but the exact amount of any eventual judgment must be determined by the trial court judge following review by a court- ordered mediator.

In Akre's case, the appeal court justices ruled last February that she was not liable for what Fox paid its attorneys to handle the appeal because she was defending a trial court victory. That decision still left her subject to pay Fox's appellate court costs and, accordingly, Judge Maye entered an order that Fox is entitled to collect from her its $156 filing fee and $18,256 in premiums for the bond the broadcaster posted to insure payment of the jury verdict if it had been upheld.

Still at issue is an additional $43,747 Fox wants to collect for the cost of a second copy of the trial transcript the broadcaster needed for its appeal. Fox paid at least that much for an original copy on a day-to-day basis as the trial continued but now argue it was forced to buy the second copy because its attorneys were told the "dailies" could not be used in the appeal.

Thomas Johnson, representing Akre and Wilson, contested the charge. He told Judge Maye that the court's chief clerk has said there has never been a requirement that daily transcripts were insufficient for purposes of pursing an appeal, suggesting Fox's purchase of the second set was an unnecessary burden that should not be placed on the reporters.

The judge gave each side 10 days to file a formal response on that issue before she makes a ruling.

Fox could appeal Judge Maye's decision back to the Second District Court of Appeal but would need to provide a compelling argument that Judge Maye somehow abused her discretion in deciding not to award trial court fees and costs to the defendant.