Lessons of the Sixty Minutes Cave-In

The controversy over the aborted 60 Minutes tobacco segment has raised enough issues and questions to fill an imposing journalistic tome on news practices, policies, and ethics. On one level it can be argued that for the public, CBS's decision last October to kill its interview with the highest-ranking executive ever to blow the whistle on the tobacco industry produced noteworthy results:

 -Thanks to CBS's decision, the devastating allegations by the former vice president of research and development at Brown and Williamson Tobacco Corporation (B&W) captured continuing front-page coverage in the nation's press. The leaks about his charges probably got more sustained notice than the broadcast itself would have. They focused public attention on allegations that B&W, the nation's third-largest tobacco company, squelched research on "safer" cigarettes; altered documents to remove damaging references to the "safe cigarette" project; used an additive known to cause cancer in laboratory animals in its pipe tobacco; and in testimony by its chief executive, lied to Congress about the addictive qualities of tobacco.

 -Government agencies have been encouraged to investigate a conspiracy to cover up evidence on the dangers of smoking, examine the question of perjury before Congress, look into accusations that the industry's scientific research is deceptive, and seek evidence that tobacco companies have deliberately chosen not to make less harmful products even though they have the ability to do so.

 -Americans have been alerted to the fact that tobacco companies and others, when faced with damaging exposure, are increasingly resorting to expensive, intimidating, take-no-prisoners litigation to circumvent the First Amendment, strong-arm the press, silence witnesses, and keep important facts from coming to the public's attention.

 -The nation has also learned of the growing vulnerability of mainstream news organizations, which are becoming relatively minor subsidiaries of huge global corporations with multiple financial interests. Top corporate executives are paid to concentrate on their companies' bottom line and stockholders' returns rather than on their news divisions' responsibilities to the public. That vulnerability was exposed last summer when ABC caved in to a $10 billion libel suit by Philip Morris (see "ABC, Philip Morris, and the Infamous Apology," CJR, November/December).

 The 60 Minutes controversy also served to tarnish the reputations of the network, of CBS News and of 60 Minutes, the longest-running, most successful, and most honored news program in television history. Several of its squabbling big guns were taken down a peg or two. The tough newsmen who demand that others answer their questions didn't do so well with questions aimed at them.

 On the personal level, the episode left several major casualties in its wake, among them: Jeffrey Wigand, a former B&W head of research, whose cover was blown as the CBS News source who pinpointed alleged tobacco company malfeasance; Lowell Bergman, a highly respected investigative producer for 60 Minutes, charged by colleagues in the press with using flawed and unorthodox newsgathering tactics, and exercising questionable journalistic judgment; and Ellen Kaden, the widely admired general counsel of CBS, blamed for "running scared," "caving in," and even possibly "being guilty of a serious conflict of interest" in making the decision to cancel the 60 Minutes expos? rather than risk a major lawsuit.

 But before looking at the lessons for journalism to be learned from the many issues involved in the 60 Minutes tobacco episode, here is the story of what happened, based on press reports, mostly from The New York Times, The Wall Street Journal, the New York Daily News, The Washington Post, and trade publications, and on interviews with principals at CBS who were directly involved. (Most stipulated that our conversations should be off-the-record and on deep background. A very few of the principals did not return phone calls or would not talk about the episode at all.)

The Reporting

 Lowell Bergman of 60 Minutes met Jeffrey Wigand in February 1994, while working on an investigative story about another tobacco company. The story alleged that Philip Morris had developed a cigarette that passed lower incendiary level tests and at the same time passed smokers' taste tests. Then, fearing lawsuits stemming from years of making cigarettes that were not "fire-safe," the company decided to kill the project and label its records about the work done on "fire-safe" cigarettes as attorney work product. That way, the records would be safe from discovery procedures by plaintiffs and government officials.

 Bergman, a highly respected, independent-minded, and award-winning investigative producer, a twelve-and-a-half-year veteran of 60 Minutes, had obtained 800 to 1,000 pages of confidential Philip Morris documents. An anti-tobacco activist tipped him off to a former B&W executive who lived in Louisville and who might be able to analyze the papers and help out as an expert consultant. Bergman called the former executive at home several times, but he would not come to the phone. Finally, using an old investigative reporter's trick, Bergman phoned late at night, woke him up, and said he'd be in Louisville at 11 a.m. the following morning, sitting in the lobby of the Seelbach Hotel reading The New York Times.

 The executive who showed up in the hotel lobby at 11 a.m. was Jeffrey Wigand. A chemist with a doctorate in endocrinology and biochemistry, Wigand went to work for B&W in 1989 as vice president of scientific research, expecting to help develop a less harmful cigarette, his friends say. He was fired in March 1993, according to his lawyer, after B&W decided to kill his research. Once a $300,000-a-year executive, Wigand is now a $30,000-a-year Louisville high school teacher. He has two young daughters, one with spina bifida.

 Wigand left B&W with a severance agreement that paid him for two years and continued his family's health insurance. In turn, Wigand had signed a confidentiality pledge. Not long afterward, in September 1993, B&W sued Wigand, suspending his pay and health insurance, after learning that he had complained about the terms of his severance to another executive at the company who also was being fired. In November, a tougher "nondisclosure settlement agreement" was negotiated and Wigand's severance and health insurance were reinstated.

 Although Bergman did not know it when they first met in Louisville in February 1994, Wigand had been called more than a year earlier to testify in a Justice Department investigation of the industry's efforts to develop a "fire-safe" cigarette. In keeping with his confidentiality agreement, Wigand notified B&W about the Justice Department's summons. B&W provided him with counsel to protect its interests in preserving the company's confidential information. (This fall, B&W sued Wigand for breach of his nondisclosure pledge. In its complaint B&W charged that despite Wigand's sworn testimony to the Justice Department stating that the company was not able to translate its safer-cigarette research into the development of a "fire-safe" cigarette, the former executive had submitted an affidavit saying just the opposite in a Massachusetts case involving Philip Morris.)

 At their first meeting in the Louisville hotel lobby, Bergman showed the former tobacco research executive eighteen pages of tobacco company documents, asked Wigand if he understood the scientific language and material in them and, satisfied that he did, offered to hire him as an expert consultant for60 Minutes to interpret the material and verify its contents. After the Louisville meeting, an agreement was quickly struck with the CBS News business affairs/legal department that called for Wigand to work as an expert consultant for 60 Minutes for no more than ten days to provide a confidential report on the Philip Morris documents and be available to testify in court if CBS News were sued for its 60 Minutes piece. The contract also specified that Wigand would not talk about any matters concerning B&W, and would not appear on the air.

 Shortly before the 60 Minutes story ran, Wigand came to New York to screen the final version of the piece and check its accuracy. The story on Philip Morris and inflammable cigarettes aired in March 1994. Wigand was reported to have been paid an estimated $12,000 for out-of-pocket expenses and per diem on that assignment. The exact figure has never been revealed. Network news divisions customarily pay between $500 and $1,000 a day for expert consultants. So CBS's payments to Wigand for his time and expenses working on that 60 Minutes piece were not out of line with general network practice. Not at all clear, though, was whether Wigand's work for CBS violated his confidentiality agreement. CBS's assignment involved Philip Morris, not B&W, but Wigand's knowledge of the tobacco industry's practices came from his work at B&W.

 In any event, the trial judge in the Massachusetts case disallowed Wigand's appearance on the ground, among others, that the defense would be unable to adequately cross-examine Wigand without causing him to breach his agreement with B&W.

 After the 60 Minutes story on Philip Morris's incendiary cigarettes ran in March 1994, Bergman kept Wigand on his "tickler list," calling him periodically. Wigand told Bergman he had gotten a subpoena from the antitrust division of the Justice Department, as well as summonses to testify on cigarette health issues from Representative Henry A. Waxman and the Food and Drug Administration. Wigand was becoming known as an antismoking expert. (Under the terms of his contract with B&W, Wigand had to notify the tobacco company before he talked to the government officials, which he did. But apparently he had felt no obligation to tell B&W about his work for CBS News on the Philip Morris story.)

 In April, Wigand, greatly disturbed, called Bergman to tell him he had received two anonymous telephone death threats against his family, warning him to lay off the tobacco industry. He and his wife were frightened, but were afraid to call the local police, evidently concerned about the tobacco company's influence in town. Arrangements were made to help get the Wigands in touch with the FBI, which put on a phone cover that recorded several hang-up calls from pay phones, but no death threats.

 Sources at CBS say Wigand told Bergman that when his B&W severance pay ran out in March 1995, he'd be prepared to talk to 60 Minutes about his experiences there. The two kept in occasional touch. Those contacts were reported to the CBS legal department, which raised no objection.

 In March, Bergman submitted a "blue sheet" to 60 Minutes proposing an investigative story on B&W. The "blue sheet" said a former executive of the company would be ready to talk soon. The proposal warned that B&W was a litigious company that had won a $3 million libel suit, a record judgment, against CBS in the 1980s for a commentary by Walter Jacobson, a newsman on a CBS-owned station in Chicago. The commentary had accused B&W of pandering to children to hook them on cigarettes.

 A few weeks later, 60 Minutes staff producers went to Louisville to meet with Wigand. They had a pleasant dinner in a French restaurant and talked in "general terms" but did not get into specifics. Then, in April, a producer returned with an audio recorder to debrief Wigand. On that trip, a source inside CBS says, the producer learned that Wigand's confidentiality agreement would not expire on March 25, the date his severance pay ended, and flew back to New York with copies of the Wigand settlement documents.

 Nevertheless, the producers knew in general terms what Wigand might say, even without yet getting him on tape or on camera. During that period, the University of California at San Francisco obtained papers revealing previously undocumented tobacco industry activities, especially activities of B&W and its parent company, the British American Tobacco Company (now B.A.T. Industries). B&W sued the university in an attempt to have its papers removed from the library shelves, claiming they had been taken illegally from the confidential files of its outside law firms.

 In July 1995, articles focusing on the tobacco company documents at the University of California were published in a special issue of The Journal of the American Medical Association (JAMA). In its thirty-nine-page section, JAMA described the "massive, detailed, and damning evidence of the tactics of the tobacco industry" that the documents revealed. The papers, JAMA said, were "from Brown and Williamson Tobacco Corporation (B&W), the British American Tobacco Company (B.A.T.), and other tobacco interests provided by an anonymous source, obtained from Congress, and received from the private papers of a former B.A.T. officer."

 B&W eventually lost its suit against the university and the complete indexed document set remains on deposit in the Archives and Special Collections Department of the University of California, San Francisco, Library and Center for Knowledge Management. (They are available on CD-ROM and via the Internet's World Wide Web at http://www.library.ucsf.edu/tobacco.)

 Throughout the early summer of 1995, Wigand tried to decide whether or not to go on camera for 60 Minutes. He was nervous and uncertain. At one point, Wigand and his wife, who worked nights in a Louisville clothing store to supplement Wigand's teaching income, flew to New York, presumably to be interviewed on videotape, but they backed out at the last moment. Wigand's wife, in particular, was deeply anxious, concerned, and worried about the fallout from his anticipated 60 Minutes appearance. Sources say Wigand wanted to tell the story out of concern for what the tobacco company was doing to the health of its millions of customers and out of guilt for keeping quiet about his own inside knowledge of what he considered to be its criminal activities, even if his speaking out would clearly violate his confidentiality agreement. Wigand thought he might be able to get out from under the tough nondisclosure restrictions on the grounds that, he felt, the agreement was "virtually extorted from him" and that it should not be enforceable, because it required him to hide information about the company's alleged criminal activities.

 In June, Wigand's lawyer asked CBS News to provide written indemnification for his client's legal fees and costs if he were to be sued for libel by B&W as a result of his appearance on 60 Minutes. One of CBS's in-house lawyers who works on 60 Minutes matters, Jonathan Sternberg, responded that CBS would agree to indemnify Wigand for libel as long as he went on camera and told the truth.

 In July, the 60 Minutes producers learned that the Justice Department had opened a criminal inquiry into possible perjury by top tobacco company executives in their testimony before a congressional committee denying that nicotine is addictive. It looked as if Wigand would be called in that inquiry to testify about his research at B&W. They also learned that Wigand was listed as an expert defense witness for ABC in the Philip Morris-R.J. Reynolds libel suit. The 60 Minutes staff felt a certain urgency about getting Wigand on videotape so that if in any of his court appearances, he should be ordered not to talk to the press, Wigand would be able to say an interview with 60 Minutes had already been videotaped without violating a court order. The 60 Minutes group also wanted "to get his information in the can" so they would have time to corroborate his assertions and check his statements with information that was available in the B&W papers and other sources. (The documents at the University of California covered the years before Wigand started working at B&W.)

 On August 3, Wigand and his wife finally agreed to be interviewed by Mike Wallace. Because the Wigands were still so fearful about what they were doing, Bergman gave Wigand a hand-written note assuring him that CBS would not air the interview without first getting his permission, and stating that they would discuss the matter further on September 3, a month after the taping. The show felt the need to have a commitment by a date certain, rather than risk dragging out the issue indefinitely. In a later interview with The New York Times Bergman explained that his intent "had not been to give Mr. Wigand any sort of 'veto power' over the report, but instead to be considerate of the difficult position in which Mr. Wigand found himself" in view of the effects a lawsuit was likely to have on his financial situation and the health problems in his family.

 Later in August, after the interview had been recorded, CBS received a letter from Wigand's attorney, Richard Scruggs, stating that he wanted CBS's libel indemnity extended to Wigand's wife, who had also been interviewed by Mike Wallace. In addition, the attorney asked, what would happen if his client were hit with a lawsuit for breach of his nondisclosure contract, as was a likely prospect. He proposed that CBS indemnify Wigand in the event of a breach of contract lawsuit as well. CBS rejected that request, while agreeing to indemnify the Wigands for libel as long as they told the truth. Later Scruggs wrote to CBS stating that if CBS broadcast the interview, it would be considered to have agreed to indemnify his client not only against libel claims but also against possible breach of his nondisclosure contract. Lawrence K. Grossman is the author of The Electronic Republic: Reshaping Democracy in the Information Age and former president of NBC News and PBS.

To Black Rock

 It was during this period, sources say, that the matter moved outside the circle of the regular 60 Minutes staff on Manhattan's West Fifty-seventh Street, and traveled over to the thirty-sixth floor of "Black Rock," the elegant CBS corporate headquarters on Sixth Avenue, where the CBS legal department has its offices. According to one account, a copy of the CBS correspondence about indemnification was sent to 60 Minutes senior producer Phil Scheffler, the internal journalistic ombudsman for the series, keeper of its editorial standards, and an experienced, respected news executive. Scheffler passed the correspondence along to CBS News president Eric Ober, who forwarded it to Ellen Kaden, the general counsel for CBS. A former litigation specialist, she is well regarded in the industry for her intelligent approach to corporate problems. At the time, she was deeply involved in the merger and acquisition agreement between CBS and its about-to-be new owner, Westinghouse. According to other reports, Kaden had already been alerted to the story by two CBS lawyers, Jonathan Sternberg and Richard Altabes, who worked for her and dealt with 60 Minutes matters. Kaden decided that she had better become directly involved.

 On September 5, Bergman, who lives in Berkeley, California, stopped in New York on his way to London, where he was going to try to corroborate the information in the Wigand interview with retired executives of B.A.T. Industries, B&W's parent. Instead, Bergman was told he had to stay in New York and meet at Black Rock the next day with Sternberg and Altabes. In his more than twelve years at CBS Bergman had never set foot in the CBS corporate headquarters. The long session with the two lawyers on September 6 to review all the facts was the first in a series of three intense meetings that culminated in the decision to abandon the Wigand interview.

 A rough assembly of the 60 Minutes piece had already been put together. After the September 6 meeting at Black Rock, the tape assembly was refined and a draft script prepared for discussion at future meetings on the subject. On September 12, all the CBS principals gathered in Eric Ober's conference room to discuss the case: Bergman, CBS general counsel Kaden, 60 Minutes executive producer Don Hewitt, CBS News president Ober, senior producer Scheffler, the in-house lawyers, and correspondent Mike Wallace. Sources say that Ober had specifically asked Kaden to come to the meeting along with the other lawyers. At the meeting, which went on for hours, Bergman briefed the group on the story's status. He mentioned that Wigand had recently been subpoenaed in the criminal investigation involving allegations of perjury by top tobacco officials. That inquiry was said to be concentrating on the two executives whose statements were the most damaging, Andrew H. Tisch, until recently chairman of Lorillard Tobacco Company, and James W. Johnston, chairman of R.J. Reynolds Tobacco. Tisch is the son of Laurence Tisch; the Tisch family controls Loews Corporation, which also owns Lorillard and, before the Westinghouse deal went through, was CBS's parent company. Lorillard, meanwhile, was negotiating to buy six cigarette brands from B&W. A participant in the meeting in Ober's conference room wareported to have asked sardonically whether anyone there really expected any of them to tell Laurence Tisch that his son might be indicted with the help of a 60 Minutes source.

 At the meeting, they discussed the fact that Wigand had been listed as a witness in the Philip Morris-R.J. Reynolds libel suit against ABC, and that B&W had intervened to block his appearance. The case against ABC, which had just been settled the month before, with ABC paying Philip Morris a reported $15 million for legal costs and apologizing for the story, was much on everyone's mind. They also reviewed Wigand's involvement in the Boston case against Philip Morris, dealing with deaths from fires caused by cigarettes. That was the case in which B&W alleged that Wigand had contradicted himself.

 Much of the meeting, a number of those present said, was spent trying to find ways to present the story while minimizing the risk to 60 Minutes, CBS News, and CBS itself. Hewitt proposed to block out Wigand's face and not reveal his name. Ober suggested trying to tie the story to Wigand's grand jury testimony. The lawyers doubted that would help the situation. They discussed whether Wigand's nondisclosure contract might be unenforceable in view of the public interest considerations in exposing the truth and the existence of a whistleblower protection law in Kentucky, the likely venue for a B&W lawsuit. They discussed whether Wigand could sue to get out from under the nondisclosure contract, an effort that could drag on for years. Another option was to do the story without Wigand, but the news people, especially Wallace, argued vehemently for keeping the interview in.

 Hewitt, someone at CBS said, viewed the tobacco expos? as a potentially big, high-visibility, muckraking opportunity that could help his show during the fall sweeps period. Ratings had been falling that season, mostly because CBS had lost the rights to televise National Football League games, the show's powerful lead-in, and because of the recent defection of key CBS affiliates to other networks.

 There was reportedly no discussion of how the story might affect the tobacco interests of Larry Tisch or the impending merger with Westinghouse. The participants engaged in what one source described as a "typical newsroom analysis of the issues facing 60 Minutes." Several participants reported that general counsel Kaden warned that, like ABC, they could be risking a $10-billion to $15-billion lawsuit over the story. But the CBS lawyers present were careful not to suggest that the information, if true, should be withheld.

 The September 12 meeting concluded with the general counsel's decision to retain outside counsel to examine the extent of the risk, and, specifically, give an opinion on CBS's exposure on the breach of contract issue. The next day, Ober, who had said little during the meeting, was asked to clarify the status of the story. He is said to have replied, "The corporation will not risk its assets on the story and that should be clear from yesterday's meeting."

 Bergman, a CBS source said, then asked one of the in-house lawyers whether he could go to Louisville to debrief their source and, if possible, get whatever diaries and records he could so they would at least have all the facts at their disposal. The lawyers offered no objection, so a few days later Bergman flew to Louisville and headed to Wigand's house. Not long after he arrived, the phone rang. Bergman was told to leave immediately and do nothing that B&W might be able to construe as evidence of CBS's interference with their contract with Wigand. The general counsel was deeply concerned about a possible tortious interference suit against CBS by the tobacco company regarding that contract. Bergman did as he was told and left Louisville.

The Outside Counsel

 On October 2, more than a month before anything on the tobacco story was to run on 60 Minutes, the last general meeting on this subject convened in Ober's conference room. This time Kaden, who was too busy to go across town to the CBS news center, participated by speakerphone from her office in Black Rock. She discussed the fact that CBS had retained P. Cameron DeVore as outside counsel to examine the legal issues surrounding the Wigand interview. DeVore, a partner in a Seattle law firm, is a nationally known, highly respected, and well-liked First Amendment defense lawyer. He was counsel for CBS in the 1983 Chicago libel case won by B&W, although nobody blamed DeVore for the loss. Unlike prominent First Amendment defense attorney Floyd Abrams, who had been retained by ABC to help draft its apology to Philip Morris and who represents the tobacco industry on a commercial speech issue, DeVore had no tobacco industry clients.

 DeVore's information about the facts and background of the 60 Minutes piece came from information he received from the CBS in-house lawyers. No one at 60 Minutes or CBS News ever talked to DeVore before or after he provided his opinion. Over the speakerphone, Kaden reported to the group in Ober's conference room that DeVore had indeed confirmed her view that if 60 Minutes went forward with the interview, it would face the likelihood of a substantial lawsuit and a risk that CBS might be found guilty of tortious interference. Other issues existed as well, such as whether CBS could even broadcast Wigand's interview without his permission, which had not yet been granted. There was concern that other facts may not yet have surfaced in view of the story's long gestation period. To this day, no one at 60 Minutes has heard or seen DeVore's report, if, indeed, it was ever written. No one at CBS News knows whether in DeVore's opinion the odds of losing a lawsuit would be big or small, whether it was a close call or a major risk, or whether some of the problems he found could have been resolved with further work on the story.

 A major concern expressed was the potential cost of a lawsuit. There was a consensus at CBS that if it were to lose the case in the tobacco-friendly state of Kentucky, the company could face a sizable financial verdict and a long and expensive appeals process. Unlike Virginia, where the Philip Morris case against ABC was brought and where punitive damages are limited by statute to a maximum of $650,000, in Kentucky no statute restricts the amount of a verdict in such cases. Moreover, in order to bring an appeal in Kentucky, CBS would be required to put up a deposit of 10 percent of the judgment against it. If the judgment were in the billions, the deposit obviously would be sizeable. People talked about whether the story was worth "betting the company" for.

The Decision

 Kaden concluded that, based on all she had heard and what she knew about the nature of the parties involved, the interview posed too many problems and risks to be shown on 60 Minutes. Too many questions remained, she felt, and any further efforts by CBS to find the answers might only serve to solidify the case against it for tortious interference.

 Although CBS Broadcast Group president Peter Lund did not return my phone call asking about his role in the decision, others directly involved in the discussions confirm that Lund was consulted and said the interview should not run. Similarly, CBS News president Eric Ober would not discuss the case other than to refer to his memo to the CBS News organization of November 19, which said, "The decision was made by CBS NEWS management in consultation with CBS attorneys."

 Former CBS chairman Laurence Tisch, by contrast, was not reluctant to talk about his role, or rather his total lack of a role. Tisch said not only did he play no part in making the decision, he knew nothing about the matter until after the interview had been scuttled, when he was informed by Kaden of "her decision." The CBS chairman was in the hospital during that period, undergoing surgery for acute appendicitis. And since the 60 Minutes issue involved tobacco, Tisch said, it would not have been brought to him to resolve in any event. During the years he was chairman of the broadcasting company, Tisch said, 60 Minutes and other CBS News programs produced many hard-hitting tobacco stories. Don Hewitt, no admirer of Larry Tisch, as both he and Tisch were quick to point out, confirmed that the chairman had never raised any questions about the program's tobacco expos?s.

 Just how seriously Hewitt regarded the prospect that CBS might risk losing billions of dollars if 60 Minutes were to run the story was reflected in a speech he gave at the National Press Club in Washington, D.C., on October 17. Hewitt cited an investigative report about the tobacco industry that 60 Minutes was working on: "We have a story that we think is solid. We don't think anybody could ever sue us for libel. There are some twists and turns, and if you get in front of a jury in some states where the people on that jury are all related to people who work in tobacco companies, look out. That's a $15 billion gun pointed at your head. We may opt to get out of the line of fire. That doesn't make me proud, but it's not my money. I don't have $15 billion. That's Larry Tisch."

Enter the Press

 With the air date for the story approaching, on Thursday, November 9, the tobacco controversy erupted in the press. In a page one story, The New York Times broke the news that "CBS's lawyers ordered the news program 60 Minutes not to broadcast a planned on-the-record interview with a former tobacco company executive who was harshly critical of the industry." The Times story revealed that the reason for killing the interview was not a threat of a suit for libel, but the fear that CBS might be held legally responsible for causing the executive to break a nondisclosure agreement with the tobacco company. Both Wallace and Hewitt were quoted as agreeing with what The Times called "the lawyers' decision." Wallace commented, "The ABC lawsuit did not chill us as journalists from doing the story. It did chill the lawyers, who with due diligence had to say, 'We don't want to, in effect, risk putting the company out of business.' "

 In the same article, CBS News president Ober denied that the interview was shelved solely for legal reasons. "We looked at the story very carefully," Ober said. "A contract is a contract. I felt for a number of reasons, both editorially and legally, that changes had to be made in the piece." Ober's comment is puzzling because when he saw it, the story was still in rough cut form and any editorial changes he required could most likely have been made before the segment was aired. According to one source, Ober objected to the fact that Wigand's death-threat allegations led the story, a problem that could readily have been fixed. On the other hand, Ober's editorial concern may have referred to the question of whether CBS had the right to run the interview at all since Wigand had yet to give his permission. Any further effort to persuade Wigand would have been seen by the lawyers as adding to the risk of a tortious interference lawsuit.

 On the heels of the Times's revelations, the CBS News team began to act in public like a dysfunctional family, as one critic described it. Dan Rather lashed out at his network's lawyers for forcing 60 Minutes to "back down." "I'd rather take my chances in front of a jury than take my chances in front of corporate lawyers," Rather told syndicated radio host Don Imus. The Washington Post quoted Mike Wallace, "We argued with the attorneys and we lost." The Post quoted anonymous CBS employees who attributed the decision to the fact that "CBS executives did not want to impede the [Westinghouse] takeover which, with the cashing out of stock options, will bring CBS News president Eric Ober $1.46 million and general counsel Ellen Oran Kaden, who led the legal team, $1.19 million." Ober's response labeled those assertions "absurd" and "a self-serving cheap shot."

 On Sunday morning, November 12, the Times published a withering editorial charging CBS with cowardice and worse. That night, 60 Minutes broadcast its watered-down version of the tobacco story. Narrated by Mike Wallace, it examined how cigarette manufacturers try to prevent important information from reaching the public. Only a small piece of the Wigand interview was included, without showing his face or revealing his name, and with another voice reading his words about the death threats. Wallace said that 60 Minutes had requested interviews with B&W and the other tobacco companies, but they refused.

 In an unprecedented "personal note" at the end of the broadcast, Wallace expressed his dismay "that the management at CBS had seen fit to give in to perceived threats of legal action against us by a tobacco industry giant. . . . We lost out, only to some degree on this one, but we haven't the slightest doubt that we'll be able to continue the 60 Minutes tradition of reporting such pieces in the future without fear or favor." About this personal note, the Daily News reported that "Peter Lund, who as president of the CBS Broadcast Group approved Wallace's remarks for broadcast, said he initially resisted doing so. 'My visceral reaction,' Lund said, 'was that he [Wallace] was not going to go on our air and say he was dismayed by this management decision. . . . Although it seemed unusual and precedential and I'm not sure that I'd approve it for some other program at some other time, I said, You know what? Go ahead.' "

Going Public

 On Monday, November 13, Charlie Rose, the PBS late-night talk show host, invited Wallace, former Washington Post editor Ben Bradlee, and First Amendment lawyer Victor Kovner on his show to talk about what had happened. That evening, as Wallace was leaving his CBS News office to tape the show, he ran into fellow 60 Minutes correspondent Morley Safer and invited him to come along. "Sure, why not?" Safer replied.

 On the show, the two flailed away at the CBS lawyers. Safer described the tortious interference question as "not really hav[ing] much case law going for it." "It is out of the question," he assured Rose, that Wallace and the producer "induced this guy [the interviewee]." "[H]e wasn't paid, he wasn't threatened, he wasn't promised anything other than an opportunity to speak, an opportunity to . . . exercise his First Amendment rights on our air." Safer added, "To me, it's an open-and-shut case for CBS News, and I am, as Mike is, dismayed by the decision of our lawyers."

 On the issue of tortious interference, attorney Kovner, who teaches this aspect of the law, insisted that the cases are rare, "maybe a couple a year, out of the tens of thousands of claims." If, for example, Kovner hypothesized, CBS had paid this interviewee $10,000, that would raise an issue, but, "According to Morley, there was no payment. There was no inducement. . . . The law could not be more clear. . . . CBS is not liable, as a matter of law . . . for tortious interference with contractual relations."

 When, later in the Rose show, Kovner learned from Wallace that Cam DeVore was the outside counsel who raised questions about the story's risk, he quickly changed his view: "If Cam DeVore issued such an opinion, there are facts that we don't know and I think CBS management has a duty to at least set forth some of them because the implications are, quite frankly, ominous."

 Three days later, on November 16, the same day that CBS stockholders met to vote on the Westinghouse buyout, The Wall Street Journal published a page one story that had some surprising new facts. CBS LEGAL GUARANTEES TO 60 MINUTES SOURCE MUDDY TOBACCO STORY, read the Journal's headline. It reported that CBS had not revealed the facts that the 60 Minutes source had been given a $12,000 consulting fee for a previous show, that CBS had granted him indemnity against libel lawsuits and veto power over the CBS News report, and that CBS had not received permission from the interviewee to air the interview. The Journal came to the conclusion: "There's more to CBS's recent decision to kill a hard-hitting tobacco story than meets the eye."

 The next day, the New York Daily News published the name of the 60 Minutes source (not that lawyers at B&W would have had the slightest trouble figuring out the identity of the anonymous former tobacco company executive) and someone at CBS News leaked the entire transcript of the never-aired 60 Minutes interview to the paper.

 The News reported all of Wigand's major allegations: "According to the transcript," the News said, "Wigand charged that Brown and Williamson scrapped plans to develop a safer cigarette and knowingly used a pipe tobacco additive that causes cancer in lab animals. He also said he believed a company executive had committed perjury by testifying in Congress that nicotine is not addictive." Former B&W chief executive officer Thomas E. Sandefur, Jr., was quoted as telling Wigand, "If we pursue a safer cigarette, it would put us at extreme exposure with every other product. I don't want to hear about it any more."

 The News article went on to reveal that Wigand told 60 Minutes that the tobacco company's lawyers "altered documents in an attempt to delete any references to the company's efforts to make a 'safer cigarette,' " and that Sandefur had perjured himself in his congressional testimony because he knew that cigarettes were "a delivery device for nicotine." Wigand said, according to the story, that "Brown and Williamson knowingly continued to use a pipe tobacco flavoring additive known as Coumarin despite laboratory evidence that it caused tumors in the livers of mice. 'I wanted it out [to the public] immediately, and I was told it would affect sales, and I was to mind my own business,' Wigand said. Questioned by Wallace, Wigand said the company used the additive at 'a hundredfold the safety level.' "

 Giving details about the anonymous death threats, the News said that "shortly after informing Brown and Williamson of his contact with Justice Department investigators, Wigand told 60 Minutes, he got two threatening phone calls. In one call he said he was warned: 'Don't mess with tobacco.' In the second call, he said, the same voice warned him to 'leave tobacco alone or else you'll find those kids [his children] hurt. They're pretty girls now.' " Asked by the News about the transcript of the unseen interview, Wigand said, "Read it, and do what you like with it. I have no comment."

 The following day, Saturday, November 18, newspapers reported that B&W accused CBS of "improperly persuad[ing] Wigand to reveal information about the company" and accused Wigand of breaching his confidentiality agreement. B&W's vice president of corporate communications, Joseph Helewicz, charged CBS with leaking the transcript even though the network was "properly unwilling" to go on the air with the interview. The tobacco company sent a letter to CBS charging that publication of the interview by the News "constitutes a further violation of B&W's legal rights, including intentional, knowing and malicious interference with B&W's contractual right and adds significantly to the harm suffered by B&W." Wigand's lawyer was quoted in The Wall Street Journal as saying that Wigand was "upset that the story was leaked," and adding that the leak was in violation of Wigand's understanding with CBS when he gave the interview.

 At the same time, the press quoted with relish a statement put out by Morley Safer claiming Wallace had "sandbagged" him on the Charlie Rose show by not leveling about the tobacco story. His CBS News colleagues, Safer said, had "deliberately suppressed" the agreements with Wigand, and Wallace had left him "twisting slowly in the wind." Safer publicly apologized to Charlie Rose and his audience for misleading them the previous Monday night. He also apologized to the CBS lawyers who, Safer wrote, "it seems were exercising more due diligence than the people accusing them of caving in." In an interview with The New York Times, Safer lobbed another grenade at his own colleagues: "It gets very, very muddy when money has crossed the palm."

 Safer's outburst prompted an exasperated Bergman to defend himself by sending a memo to the staff: "Morley apparently felt no responsibility on his part to check out his facts before making damaging allegations about me. . . . Let me reassure you that nothing was 'suppressed.' " The producer also revealed that the staff was "under instruction from the general counsel not to reveal anything."

 Andy Rooney, 60 Minutes's curmudgeonly commentator, entered the fray. In his syndicated newspaper column, Rooney charged that Hewitt had demanded cuts in his on-air commentary criticizing CBS chairman Tisch and the decision not to run the tobacco interview. "I couldn't decide whether to quit or sigh in relief," Rooney wrote. "Instead of doing either, I cut out some of the objectionable portions of my script and gave them the shortest piece I've ever done at 60 Minutes." Rooney then chastised Hewitt for taking off for Europe in the midst of the fracas. In his 60 Minutes script on November 19, Rooney concluded, "What happened here at 60 Minutes last week is good evidence of how difficult it is to report on business . . . in this case, the tobacco business. See you next week, maybe."

 In an interview with The Washington Post that ran three weeks later, Hewitt defended his insistence on cutting Rooney's script. "I'm perfectly comfortable with lawyers making decisions for the corporation they represent," he said. "What I'm not comfortable with is anybody trashing an organization and taking a paycheck at the same time. You don't like what they did? Leave!"

 News president Eric Ober tried to regain control of the situation. In a two-page memo, Ober did his best to set out news management's position on the issues to the staff. "Many different factors were weighed in determining whether the proposed story carried legal risks and journalistic problems," Ober wrote, but he emphasized, "nothing improper was done during the newsgathering process by anyone involved." Ober was especially critical of the "inappropriate" conduct of some who disagreed with the decision not to air the interview, saying "the free-for-all that ensued resulted in the identification of a confidential source. Allowing the identity of a confidential source to become known is one of the most egregious violations of journalistic ethics and tradition. . . . While we do not know who released the source's name or how a draft transcript of the report was removed from CBS News and delivered to another news organization [the News], CBS News greatly regrets this and will provide full indemnification to t source."

 Thus, CBS was forced to take the very step it had refused to take two months earlier. It put itself on the hook to indemnify Wigand for breaking his nondisclosure contract. An internal analysis from the Times's legal department was critical of CBS's timidity. It concluded, "Without even putting up a fight, CBS has managed to create an ugly precedent. 'Tortious interference with contract' has now been added to the legal armory of enemies of the press without so much as a single [court] decision endorsing it."

 Along with the press feeding frenzy came many lawyers, most of them First Amendment specialists, offering their professional opinions in articles, letters to the editor, and responses to reporters' questions. The Times quoted Joseph B. Jamail, the Houston lawyer for Pennzoil, which won a lawsuit against Texaco for tortious contractual interference with Pennzoil's planned merger with Getty Oil. The $10.5 billion judgment for Pennzoil had put Texaco into bankruptcy court in 1987. Still, Jamail was surprised that CBS would pull back from its tobacco expos?. "If you've got as much backbone as a banana, you go with that one," he said. "I just don't see the damages."

 In a letter to The Wall Street Journal, Floyd Abrams deplored the attacks on CBS general counsel Ellen Kaden for carrying out her obligations to advise CBS of what risks were posed. And in a forum at the Columbia Graduate School of Journalism, Abrams revealed that in about a third of his cases, his media clients are being sued for claims that circumvent the First Amendment and libel law. He cited cases of claims against the press for contract violations, fraud, intrusion into privacy, intentional infliction of emotional injury, federal and state RICO laws, and even the Ku Klux Klan Act prohibiting wearing disguises in certain circumstances. Although plaintiffs' lawyers "have been very creative and often failed," Abrams said, "there's no doubt that I consider a clear and present danger to broadcast journalism . . . the proliferation of these other sorts of claims as to which we simply don't know the answer . . . about whether there is First Amendment protection or not."

 The strongest legal attacks against CBS's decision to suppress its tobacco interview appeared in The National Law Journal and New York Law Journal. In the former, Jane E. Kirtley, executive director of the Reporters' Committee for Freedom of the Press, argued that "It is a sad day for the First Amendment when journalists back off from a truthful story that the public needs to be told because of fears that they might be sued over the way they got the information."

 In a New York Law Journal column, James C. Goodale, who was general counsel for the Times during the Pentagon Papers case, went even further. Assuming the information 60 Minutes had was "not only true but also in the public interest," Goodale wrote, "it would seem very difficult for 60 Minutes to lose a suit" for broadcasting the interview. He called it "a slam dunk win. . . . Once the court is required to determine whether the publication of the embargoed facts is in the public interest, the case is over."

The Lessons

 Assuming the facts are as reported here and there aren't any major pieces to the puzzle missing, what can we learn from the 60 Minutes experience?

 We start by acknowledging the basic reality that no news story is perfect, as anyone who has ever been the subject of a news report and anyone who knows a good deal about the matter being reported on will readily testify. No news story that I've ever been involved with, including this article, has been entirely without flaws, no matter how meticulous the reporter and the editor. That is especially true of an investigative report, which by definition tries to uncover facts that people go to great lengths and often great expense to hide. And the victim of an expos?, especially a rich and powerful victim, will seize on the slightest error to discredit the entire story. In his breezy memoir, A Good Life, Ben Bradlee talks about his "eternal horror" at a major mistake The Washington Post made during Watergate reporting secret testimony at a grand jury hearing. "The denials exploded all around us all day like incoming artillery shells. No one can imagine how I felt. We had written more than fifty Watergate stories, in the teeth of one of history's great political cover-ups, and we hadn't made a material mistake. Not one. . . . And now this. . . . [It] caused us anguish we had never felt before." Notwithstanding the blunder, the Post carried on, of course, and brought down a president.

 Many of the First Amendment lawyers who commented publicly on the 60 Minutes case, talked about the rising threat to journalism from bold, aggressive corporate litigation that seeks to circumvent the press' traditional First Amendment protection. In recent years, the courts have been closing the door on giving protection to news media, especially in newsgathering. There is a growing perception that networks and broadcasters have run amok, poking cameras in keyholes, barging in with the police, intruding on citizens' privacy, showing no consideration for grieving parents and distraught children, and making ordinary people miserable in the glare of its camera's lights. There is a sense that the news media, as a result of their aggressive reporting on subjects of mere prurient interest rather than true public significance, are tearing away the civil rights of their subjects. The press is reaping the rewards of its own excesses, and now faces a tough, uphill argument before the courts; its First Amendment defenses are being limited. It is essential that the press begin to think about the issues in journalistic as opposed to legal terms.

 Still, while corporations like B&W and others seek to erode First Amendment standards through tough, relentless litigation that applies new areas of law to media cases, there is no evidence yet that they are winning significant battles or shockingly large judgments. A recent analysis by the Libel Defense Resource Center concludes, "As a general proposition, these claims have not fared well for plaintiffs." James Goodale said, "As far as I know, no news organization has ever been sued for what it published solely on a claim of inducing breach of contract."

 Media companies, especially big, rich ones, have an obligation to fight fire with fire, and take on belligerent and litigious plaintiffs rather than be bullied by them. During my term at NBC News, Lyndon LaRouche, a sometime presidential candidate, sued the company for millions in damages for libel. We decided not only to defend the suit against us vigorously but also to sue LaRouche back. LaRouche lost both ways. NBC beat him on the libel suit and won a major judgment against him for his actions against us. It was a delicious victory. Best of all, the Justice Department used much of the evidence from our civil lawsuit to convict LaRouche.

 There has been much talk about the role of lawyers in the 60 Minutes case and much debate about whether lawyers should be making news decisions. In the interest of full disclosure, it should be reported that the author of this article is a law school dropout, having abandoned Harvard Law School after the first year to find more interesting work on a magazine. But good lawyers are essential in cases like this, and CBS had very good lawyers. Their job is to assess the risks and advise what problems exist and what courses of action would be appropriate. But obviously, the responsibility for making hard decisions about whether to go forward and on what basis, rests not with the general counsel but with the head of the news division, and ultimately with the chief executive of the company.

 In this instance, CBS was seriously handicapped because of its chief executive's personal and financial entanglements with a major tobacco company. Clearly, too, the pending Westinghouse merger played a not insignificant role, whether overt or subconscious, in how CBS management viewed the issue here, if only in influencing outsiders' perceptions of the reasons behind the decision. But the reality is that nothing can be done about such outside factors as ownership and mergers. News decisions must be made on their own merits, recognizing that those factors inevitably play a role.

 What exactly was the role of the lawyers and was there anything inappropriate in what they did? Based on the information reported here, the views of CBS general counsel Ellen Kaden were decisive in the decision to quash the interview. It is apparent that she had reasons to be concerned and that her judgment carried great weight. With regard to the outside counsel, all of them, even the best, the most famous, and the most honorable, inevitably have their perspective influenced by the nature of their charge from the client, their perception of where the client wants to come out. Suppose Ellen Kaden told Cameron DeVore, "Look, this case really bothers me. I'm worried about the people involved. I'm concerned about whether we have all the facts. My instinct and experience, along with the information I have, tell me we are in for trouble. Even the president of the news division and executive producer of the show seem somewhat ambivalent. Please look into this whole matter and let me have your opinion." DeVore wou take on the assignment being acutely aware, from the very beginning, of the problems and risks at hand. As an able, independent-minded lawyer, that would not prevent him from concluding after he had researched the issues that in his opinion the risks were minimal. But he would more likely focus on the potential problems than look for ways to go forward with the interview.

 On the other hand, suppose the CBS general counsel had said to DeVore, "This is a gangbuster story. It involves serious risks to the health of millions. It comes with problems, I know, but it would be a feather in our cap to pull it off and a great public service as well. If we can do it, it would be a shot in the arm for CBS, for CBS News, and for 60 Minutes. It could even win us an Emmy. Please look into the issues and let me know if you think they are so insurmountable that we should not run the interview." His conclusions might have been framed rather differently.

 The Times editorial charged: "The most troubling part of CBS's decision is that it was made not by news executives but by corporate officers, who may have their minds on money rather than public service. . . . With a $5.4 billion merger deal with the Westinghouse Electric Corporation about to be approved, a multibillion-dollar lawsuit would hardly have been welcome. Some of the executives who helped kill the 60 Minutes interview, including the general counsel, stand to gain millions of dollars themselves in stock options and other payments once the deal is approved." Others in the press raised troubling questions about the personal motivation of the lawyers and executives who made the decision.

 I have no problem with the press disclosing all the facts that could have influenced the decision, especially facts about who stands to make or lose money, so that readers can come to their own judgment about what is at stake. But I do have problems with the press presuming to read the mind of anyone involved in any story, as the Times did in its editorial. To take a personal example, in 1990 this writer was diagnosed with a rare form of facial skin cancer that required extensive surgery and intensive radiation. Doctors speculated that my cigarette and cigar smoking may have been a cause, but they had no real evidence of it. My wife was sure that my smoking contributed to my cancer, based not on scientific knowledge, but on her own instinct. As a result, I stopped smoking, developed a strong personal interest in issues of tobacco and health, and joined the boards of several nonprofit groups focusing on cancer and heart disease. My interest in the subject may even have been a factor in my decision to write this story. It is useful for readers to know these facts so they can make their own judgments about the reporting and analysis on these pages. But does that mean I cannot do a responsible, professional, fair-minded job of journalism in this case?

 What does the 60 Minutes episode teach us about the newsgathering process, especially if the lawyers are right that the strong First Amendment protections that have been built up for publishing and broadcasting are not matched by comparable First Amendment protection for newsgathering? In 1964, the Supreme Court applied First Amendment principles to defamation law in New York Times v. Sullivan, making it much more difficult for a public figure to win a libel or defamation judgment for irresponsible publishing or broadcasting. Now the pendulum involving judgments against the media seems to be swinging in the other direction. If that is the case, journalists have to be concerned not only with what they say, publish, or broadcast but also with how they go about gathering their information.

 Breaking a law when gathering news, by trespassing, stealing documents, eavesdropping, or even misrepresenting who you really are, are generally unethical and are likely to generate serious legal problems down the road. Interfering with contractual relationships or causing deep emotional stress by using hidden cameras or scare tactics are also more likely today to provoke litigation. Here again, whatever unorthodox procedures may have been used, full disclosure is always in order. Once the story broke, 60 Minutes would have been better served if it had revealed the conditions of the interview, including telling its own correspondents, although that is easier to say in hindsight than to do at the time.

The Wall Street Journal called the veto power that CBS granted the interviewee an "oddity," as indeed it was, but that does not make it wrong or unprecedented. In their book Strange Justice: The Selling of Clarence Thomas, two veteran Journal reporters, Jane Mayer and Jill Abramson, revealed that Anita Hill insisted on the right to screen their questions in advance and to have her lawyers present at their interview. They also gave her their commitment that "no material from the interview be quoted for attribution until she first cleared it." The reporters decided that getting the Anita Hill interview was worth giving her veto power, and they were right as long as they revealed the conditions under which they were operating.

 In the real world of day-to-day newsgathering, news organizations cannot give away the editorial store to nervous subjects, nor can they afford to go overboard worrying too much about such procedures or they'll end up playing it safe and reporting from press releases rather than aggressively pursuing independent fact gathering. Based on the events in the 60 Minutes case, Lowell Bergman's efforts to uncover alleged criminal and other malfeasance in the tobacco industry were a model of sound, effective investigative reporting.

 The capable investigative reporters I have known (I've never met Bergman) are all of a type. They have a strong sense of right and wrong and a tenacious determination to pursue wrongdoing and wrongdoers. The facts they require almost never drop into their laps unsolicited; the facts need to be uncovered and pursued relentlessly and aggressively. It is usually lonely, painstaking, frustrating work.

 Our legal system should do everything possible to protect responsible investigative reporters and researchers and our trade should honor the best of them. So should their newspaper, magazine, and broadcasting employers. The problem with investigative reporting today is not that there is too much of it, but too little, particularly about serious issues. If one percent of the news resources now being spent on journalistic initiatives in pursuit of the secret lives of TV and movie stars, the private lives of public officials, and the personal peccadillos of sports heroes, were devoted to investigating the bad behavior of big government and big business, the country would be far better served.

 Much criticism has poured down on 60 Minutes for using as its main source in the B&W investigation a former official of that company who had been retained as a consultant on a previous tobacco story. "Checkbook journalism" is almost always deplorable because it tempts sources to tailor their stories to suit the paymaster. But it's an odd criticism to throw around in this case, as if the source could somehow have been seduced into becoming a whistleblower by receiving about $12,000 for ten days' work and out-of-pocket expenses on another project more than a year earlier. Common sense suggests that, regardless of what a plaintiff may try to make of it in the courtroom, there was nothing inherently inappropriate about that process. Why that was held up for criticism by some journalists, even a few inside CBS, is something of a mystery. Perhaps because unlike doctors and cops, some members of the press enjoy nothing more than seizing an opportunity to discomfit one of their own colleagues. If Wigand had the goods, 60 Minutes was right to move heaven and earth to try to get him on videotape. And once they had him telling his damaging story, understandably scared to death and worried about his family and his future, what is wrong with giving him an assurance that he still had time to think it over, that his interview would not be broadcast without his permission?

 In addition, if a source is being used on the air because the producers are convinced he is telling the truth, why not offer to indemnify him against a libel suit, which is the only indemnification CBS originally agreed to? I admit, in my years in television, I never encountered such a written indemnification before. But if an investigative producer had come to me and asked whether it would be all right to commit NBC News to stand behind our source as long as he told the truth, I would have answered, "Of course, go ahead. It's the only honorable thing to do."

 In his memo to the troops, CBS News president Eric Ober insisted that the newsgathering process on the tobacco story "was in every respect sound and appropriate" and that "nothing improper was done . . . by anyone involved." Based on everything I've learned so far, Ober is absolutely right about that. Bergman and his colleagues deserve prizes, not pillorying, for their efforts to expose what has evidently been going on in the tobacco industry.

 One of the thorniest questions the 60 Minutes case raises for news executives, and corporate executives whose companies own news divisions, is what obligations do they have to go public with the facts about a decision to kill a story when the threat of litigation is in the air? Can they afford to hide behind the response that journalists hate almost more than any other: "I can't talk about that now, it's in the hands of the lawyers." Goodale argues that "CBS must clear the air. . . . The public is entitled to know what happened." The press, more than any other institution, should be extremely reluctant to withhold information, he says. But the reality is that the journalistic process has always been among the most secretive of all. Journalists rarely allow outside reporters to cover their editorial deliberations. And lawyers can be very convincing that going public can be costly in a courtroom battle.

 While the Times editorial writers demanded "full disclosure" from 60 Minutes, that was not what their own newspaper and The Washington Post offered last November when the newspaper they both own, the International Herald Tribune, agreed to settle libel cases brought against it in Singapore courts for several opinion articles that offended the Singapore government (see "Singapore's Grip," CJR, November/December). The Herald Tribune paid damages, published apologies, and agreed to drop an appeal of the Singapore ruling. In response to criticism that the paper had been far too conciliatory, Katherine Graham and Arthur Sulzberger said both of their papers had repeatedly defended the principle of a free press, and added, "To think that we would set a different standard for a newspaper that our companies jointly own is ludicrous." Perhaps, but neither offered any explanation, much less "full disclosure," of why the Herald Tribune settled. The result was suspicion that business expediency prevailed over journalistic principles.

 The settlement may well have been prompted by a legitimate and praiseworthy need to protect their employees or others in Singapore, in which case their failure to disclose the facts was fully justified. The only answer, in that event, is that a news medium that refuses to answer important questions, even for good reasons, has to know that people will think the worst of it. It comes with the territory. Meanwhile, Goodale points out, "CBS has now cultivated the impression that a company can bring and win an interference suit against the press. This will surely encourage corporations to require secrecy agreements of their employees, encourage judges to consider such suits seriously and encourage the public to believe that the suits are legitimate." Companies have the right to secure nondisclosure agreements from their employees, as allowed by law. But where malfeasance is suspected, the job of the press is to find it out.

 One consolation about the press trying to stonewall information about itself: in most cases, the issue becomes moot because the press's stonewall is remarkably porous. Journalists are incurable gossips, a trait that probably attracted them to the business in the first place. Years ago, I suggested to a colleague that the best way to tell the three network news divisions apart was to look at how each one deals with its internal gossip and gripes: At ABC News, theirs ricochet around inside the building. CBS News sprays theirs indiscriminately in public. NBC News leaks theirs anonymously.

The Bottom Line

 Finally, to ask the unfairest question of all: Assuming the facts are essentially as they were described here, what would I have done if I were running CBS News? The question is unfair because hindsight and second-guessing are a thousand times easier to do than making decisions in the midst of the maelstrom.

 In real life on the news front, key information comes in dribs and drabs. The atmosphere is filled with distractions: Y's contract needs to be decided upon; X is unhappy with her beat; Z is being wooed by another network; a key program's ratings have begun to plunge; an important senator calls to complain that his party is being stiffed; the White House wants to know why the president got short shrift on last night's news; a big story is breaking someplace where you have no correspondent or producer; the division's budget projections are overdue; you are late for a management meeting. . . . And this one damned story, which everyone is worried about, and which some predict will bankrupt the company, is demanding all of your time and attention. Some argue it is a great scoop. Others insist most of the facts have already come out.

 I hope I would have moved heaven and earth to put the tobacco story on the air. Respecting the reservations of counsel, which were reasonable and offered by lawyers for whom I have high regard, I would nonetheless have insisted on getting a second legal opinion. Does that really mean, keep looking for a lawyer until you find one who agrees with you? The answer is yes, within reason. That is what The New York Times did in 1971 when its outside law firm, Lord, Day & Lord, advised the paper that the Times principals could go to jail and pay enormous fines if the paper continued to defy the federal government and publish the Pentagon Papers. Lord, Day & Lord resigned when the Times failed to heed its legal advice. Jim Goodale, the newspaper's general counsel, found other attorneys who had a different opinion. He was convinced that the law would treat the media differently because of the public interest concern and the First Amendment tradition. And he turned out to be right.

 Now, the 60 Minutes interview is hardly in the same league as the Pentagon Papers. For one thing, the Espionage Act is not involved in the tobacco story. Smoking is not a national security issue. So a decision to run the 60 Minutes interview would not be nearly so momentous. I cannot imagine any court, especially an appeals court, and certainly the Supreme Court, upholding a multibillion-dollar judgment against a news division that is trying to serve the public interest, and ruling in favor of a tobacco company whose practices appear so questionable. A decision against CBS for tortious interference with a contract could be substantial, but is hardly likely to bankrupt a company worth $5.4 billion. The fear of billion-dollar judgments was daunting, but common sense and all precedent suggest it was probably groundless. Corporate executives have a duty to protect the company's stockholders from undue risk. But owning a company with a news division is one of the risks CBS stockholders take. And it does not seem to me at all likely that their stock values or dividends would be hurt in any major way by a decision to run the 60 Minutes story.

 I would have had another argument, too, a self-serving argument in the corporate interest: the very fact that CBS's parent company was in the tobacco business almost demanded that CBS do whatever it reasonably could to put the piece on the air, for its own self-respect and for its reputation. The fact that a merger was pending made the same demand. The worst thing that could happen to CBS would be to have the nation believe that it pulled back from an important news story for self-interested financial reasons, because of the company's impending sale and because of its association with a major tobacco company.

 Besides, I have a precedent. In 1980, at PBS, we were faced with the issue whether to broadcast a controversial program, a docudrama called "Death of a Princess," about the execution of a young Saudi princess for adultery. PBS's plan to carry the program prompted powerful objections from the Saudis, the U.S. Secretary of State, most members of Congress, and several of our chief corporate underwriters, the Mobil Oil Co. and Texaco. Mobil launched a major ad campaign urging PBS not to run "Death of a Princess." I decided that on that basis alone, we had no choice but to run the program. PBS could not afford to be seen as knuckling under to pressure from the government or especially from its major corporate underwriters, who, it turned out, continued their support undiminished.

 Suppose the decision to broadcast the tobacco report gets vetoed by someone higher up, the president of the Broadcast Group or the c.e.o., for example. Should people at CBS News resign in protest? Certainly not, as long as the veto (even if mistaken) was prompted by a reasoned and legitimate disagreement with the judgment to run the story. That seems to be what happened in this case. If, on the other hand, there is real and hard evidence that the decision was made solely to protect the special financial interest of the parent company or the personal financial interest of the higher-up, that would be another matter.

 The CBS News Division's standards and practices "bible" says, "Investigative reporting, to which CND has a longstanding commitment, often cuts deep and arouses sharp reactions, but must be free, nevertheless, to expose and indeed we have a responsibility to expose criminal activity, wrongdoing, and abuses of public confidence and trust." Five states now have sued the major tobacco companies, accusing them of conspiring for decades "to mislead, deceive, and confuse." Other investigations are under way. 60 Minutes should broadcast its investigative report on an issue that continues to be both timely and big news.

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