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December 5, 1998
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Morley Safer Dear Mr. Safer:
60 Minutes, CBS Television
51 W 52nd Street
New York, NY
USA 10019
The passage below from Michael Crichton's novel Airframe draws a picture of American television news as irresponsible and lacking accountability:
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Edward Fuller was the head of Norton Legal. He was a thin, ungainly man of forty. He sat uneasily in the chair in Marder's office. "Edward," Marder said, "we have a problem. Newsline is going to run a story on the N-22 this weekend on prime-time television, and it is going to be highly unfavorable." "How unfavorable?" "They're calling the N-22 a deathtrap." "Oh dear," Fuller said. "That's very unfortunate." "Yes, it is," Marder said. "I brought you in because I want to know what I can do about it." "Do about it?" Fuller said, frowning. "Yes," Marder said. "What can we do? Can we prevent them from running the story?" "No." "Can we get a court injunction barring them?" "No. That's prior restraint. And from a publicity standpoint, it's ill advised." "You mean it would look bad." "An attempt to muzzle the press? Violate the First Amendment? That would suggest you have something to hide." "In other words," Marder said, "they can run the story, and we are powerless to stop them." "Yes." "Okay. But I think Newsline's information is inaccurate and biased. Can we demand they give equal time to our evidence?" "No," Fuller said. "The fairness doctrine, which included the equal-time provision, was scrapped under Reagan. Television news programs are under no obligation to present all sides of an issue." "So they can say anything they want? No matter how unbalanced?" "That's right." "That doesn't seem proper." "It's the law," Fuller said, with a shrug. "Okay," Marder said. "Now this program is going to air at a very sensitive moment for our company. Adverse publicity may very well cost us the China sale." "Yes, it might." "Suppose that we lost business as a result of their show. If we can demonstrate that Newsline presented an erroneous view — and we told them it was erroneous — can we sue them for damages?" "As a practical matter, no. We would probably have to show they proceeded with 'reckless disregard' for the facts known to them. Historically, that has been extremely difficult to prove." "So Newsline is not liable for damages?" "No." "They can say whatever they want, and if they put us out of business, it's our tough luck?" "That's correct." "Is there any restraint at all on what they say?" "Well." Fuller shifted in his chair. "If they falsely portrayed the company, they might be liable. But in this instance, we have a lawsuit brought by an attorney for a passenger on 545. So Newsline is able to say they're just reporting the facts: that an attorney made the following accusations about us." "I understand," Marder said. "But a claim filed in a court has limited publicity. Newsline is going to present these crazy claims to forty million viewers. And at the same time, they'll automatically validate the claims, simply by repeating them on television. The damage to us comes from their exposure, not from the original claims." "I take your point," Fuller said. "But the law doesn't see it that way. Newsline has the right to report a lawsuit." "Newsline has no responsibility to independently assess the legal claims being made, no matter how outrageous? If the lawyers said, for example, that we employed child molesters, Newsline could still report that, with no liability to themselves?" "Correct." "Let's say we go to trial and win. It's clear that Newsline presented an erroneous view of our product, based on the attorney's allegations, which have been thrown out of court. Is Newsline obligated to retract the statements they made to forty million viewers?" "No. They have no such obligation." "Why not?" "Newsline can decide what's newsworthy. If they think the outcome of the trial is not newsworthy, they don't have to report it. It's their call." "And meanwhile, the company is bankrupt," Marder said. "Thirty thousand employees lose their jobs, houses, health benefits, and start new careers at Burger King. And another fifty thousand lose their jobs, when our suppliers go belly up in Georgia, Ohio, Texas, and Connecticut. All those fine people who've devoted their lives working to design, build, and support the best airframe in the business get a firm handshake and a swift kick in the butt. Is that how it works?" Fuller shrugged. "That's how the system works. Yes." "I'd say the system sucks." "The system is the system," Fuller said. Marder glanced at Casey, then turned back to Fuller. "Now Ed," he said. "This situation sounds very lopsided. We make a superb product, and all the objective measures of its performance demonstrate that it's safe and reliable. We've spent years developing and testing it. We've got an irrefutable track record. But you're saying a television crew can come in, hang around a day or two, and trash our product on national TV. And when they do, they have no responsibility for their acts, and we have no way to recover damages." Fuller nodded. "Pretty lopsided," Marder said. Fuller cleared his throat. "Well, it wasn't always that way. But for the last thirty years, since Sullivan in 1964, the First Amendment has been invoked in defamation cases. Now the press has a lot more breathing room." "Including room for abuse," Marder said. Fuller shrugged. "Press abuse is an old complaint," he said. "Just a few years after the First Amendment was passed, Thomas Jefferson complained about how inaccurate the press was, how unfair —" "But Ed," Marder said. "We're not talking about two hundred years ago. And we're not talking about a few nasty editorials in colonial newspapers. We're talking about a television show with compelling images that goes instantaneously to forty, fifty million people — a sizable percentage of the whole country — and murders our reputation. Murders it. Unjustifiably. That's the situation we're talking about here. So," Marder said, "what do you advise us to do, Ed?" "Well," Fuller cleared his throat again. "I always advise my clients to tell the truth." |