03-10-07

CBS News Sued by Former Reporter To misquote George Lucas, it was a long time ago, but the galaxy was not so far away. At home, it was a time where at least for a while it appeared we had our very own real-life fairy tale princess. A generation before subprime and concerns about our burgeoning carbon footprint, whilst Peter Davison's youthful and heroic fifth Doctor occupied the Tardis rather than David Tennant's somewhat similar tenth, an altogether different cultural phenomenon was taking shape in America. During the infancy of the Reagan Administration, before there were supermodels there were super anchors. In the early 1980s and pre-Fox, America's three main networks all installed new anchors for their evening newscasts. At ABC, it was the suave late Canadian, Peter Jennings, whose "World News Tonight" was positioned to cater for the more internationalist outlook of America's coasts. For Middle America over on NBC Nightly News, it was the then still boyishly good-looking Tom Brokaw. Meanwhile, for fly-over country, Dan Rather replaced the legendary Walter Cronkite at the CBS Evening News. For more than two decades these three men personified their respective network's news output and, in a broader sense, corporate personality. Their departure occurred within a four-month period beginning almost three years ago. With a degree of planning and anticipation perhaps better suited to a presidential inauguration, Tom Brokaw retired and made way for Brian Williams in December 2004. Peter Jennings, having sadly been diagnosed with lung cancer, anchored World News Tonight for the last time on 1st April 2005. Three weeks previously, Dan Rather's departure from CBS was equally forced but under very different circumstances. Rather left the CBS Evening News after twenty four years as its anchor with his professional reputation badly bruised and journalistic integrity widely called into question. The cause of his departure was an inaccurate report initially broadcast on a on different CBS programme, "60 Minutes II" whose format closely resembles ITV's Tonight With Trevor McDonald. The previous September during the run up to the 2004 Presidential Election it ran a report presented by Rather which suggested significant lapses in President Bush's military record during his time as an airman in the Texas Air National Guard ("TexANG") in the early 1970's and related allegations of special favours. For a number of years, President Bush's limited military service in the TexANG during the time of the Vietnam War has attracted the investigative attention of various news organisations. Whilst claims that the President used his father's political connections to preferentially gain entry in the TexANG and thereby avoid seeing active service in Vietnam are nothing new, the documents which CBS made public as alleged collaborative evidence of a highly questionable service record whilst in the TexANG were new. This documentation was alleged to have originated from Lt Colonel Jerry B. Killian, who was then President Bush's commanding officer. Questions were however immediately raised concerning the authenticity of these documents following broadcast of the report on 8th September 2004. For twelve days following broadcast, both CBS and Rather sought to defend the report's accuracy until it become clear that the documentation which they had relied could not be authenticated. The decision to issue an apology for the broadcast was made by Andrew Heyward, then President of CBS News and CBS public relations executive Gil Schwartz. On 20th September 2004 Dan Rather read on apology on both his behalf and the CBS network and this was followed up by an interview whereupon Rather expressed his personal regret at the mishandling of the story. Rather's lawyers now contend that these apologies were coerced from their client. Certainly, they had the effect of ensuring that Dan Rather in the public's mind took main responsibility for the broadcast and become a lightening rod for general criticism of the network's handling of the matter. Two days later CBS announced the appointment of an independent review panel to investigate and report on all aspects of CBS' decision to broadcast the story. The panel was made up of Richard Thornburgh, former attorney general during the administration of the first President Bush and Louis D. Boccardi, former Chief Executive Officer of the Associated Press. The review found that the story had failed to be either accurate or fair. Immediately following President Bush's re-election, CBS informed Rather that he would be terminated as anchor of the CBS Evening News and assigned solely to reporting and presenting duties on 60 Minutes effective from March 2005. He subsequently departed from the network altogether in June 2006 approximately five months prior to the expiry of his contract complaining of having been marginalised by the network. Last week Rather filed in the New York State Supreme Court a $70,000,000 lawsuit against CBS, its then parent company Viacom, their respective chief executive officers and Andrew Heyward. These legal proceedings are predicated on the argument that CBS violated its contract with Rather by giving him insufficient air-time and resources on "60 Minutes" and that his journalistic reputation was wrongly sacrificed by the network in breach of its fiduciary duties to him on the grounds of political expedience. This legal action promises a unique examination of the contractual responsibilities which CBS owed to Rather and in particular whether a network has a legal duty to its lead anchor to either ensure the accuracy of stories which he reports or failing that, protect its anchor from the fallout resulting from an inaccurate report presented (as opposed to merely introduced) by him. Much of the claim relates to purely contractual issues and includes an alleged breach by CBS of its obligation to ensure that Dan Rather's services are fully utilised by its news division and his profile 'on air' is sufficiently maintained. Here at home this point is routinely addressed in television and radio screen journalists and presenters contracts. Usually, such contracts will include a provision under the heading of 'enhancement of reputation' which will make clear that the broadcast company is not obliged to call upon the services of the journalist/presenter and that it shall not be liable to them for any loss of damage they suffer on account on a failure to obtain publicity or opportunity to enhance their reputation. Dan Rather's contract at CBS did not have this provision and in fact sought to impose certain contrary obligations on to the network. In addition, Rather's legal counsel claim that certain promises where made by CBS which have not been fulfilled. These include what appears to be a weak legal argument that a promise had been made that his contract would be extended beyond its scheduled expiry of November 2006 and that in effect a second collateral contract has a result come into existence on account of this representation. Furthermore, it is contended that CBS owed Rather as an employee of over forty years standing, a higher a duty of care in its actions towards him. How the court deals with this point will be fascinating. In turn, there will be some interesting questions for CBS to address at a time when their news division is struggling and the performance of Rather's successor on the CBS Evening News, Katie Couric who formerly co-hosted NBC's Today Show, has itself been widely questioned. Specifically, CBS will have to explain why the decision to drop Rather from its Evening News was taken two days following President Bush's re-election and some two months prior to its own review panel issuing its findings. Certainly, its seem reasonable to suggest that the actions by CBS were to some degree politically motivated and designed to assist in the repair of its and then parent company Viacom's relations with the Bush White House. It is suggested that these relations with the Administration were during this period under particular strain as a result of CBS News breaking the story of the abusive treatment of Iraqi prisoners by American military personnel in the Abu Ghraib prison in late April 2004. Rather's lawyer's will argue that CBS cynically used their client to become the main focus of the fall out and then stopped him from having the broadcast space to rebuild his professional reputation. Factually it is correct to say that Rather's role and public profile at CBS was far lower during his last eighteen months at the network and that on finally leaving he was in commerical terms, significantly devalued in the market place. To what extent such lower commercial value was attributable to Rather's own actions or at least matters in respect of which it is reasonable for him to take some responsibility will be a matter for the court to decide. From a British perspective these proceedings will also highlight the absence of a claim for defamation by Dan Rather, which would be expected were such an action to occur here. The can be explained on account of the far greater difficulty a litigant faces in bringing a successful claim for libel in the United States where there is a higher evidential burden to be met. In the 1964 seminal case New York Times v Sullivan, the Supreme Court held that under the US Constitution and with particular regard for First Amendment free speech rights, no award of damages to a public official for defamation arising out of false allegations of conduct could be made unless he proves "actual malice". This provides an evidential burden on the respondent to demonstrate that for these purposes, the defending news outlet made the statement with the knowledge of its falsity or with reckless disregard of whether in fact it was true or false. The definition of a public official had since been expanded upon in a number of judgments and is almost certain to include Dan Rather in his capacity a network news anchor. The effect of this judgment is that in contrast to the United Kingdom, the publication in the United States of inaccurate content which is found as reasonably having a defamatory meaning to a public official's reputation is not in itself sufficient to successfully bring an action for libel. Of perhaps even greater importance than this higher evidential burden is the fact that the burden itself in the United States is switched so that it is incumbent upon a plaintiff to prove malice. In contrast, the UK operates a far more claimant friendly environment and imposes on media outlets the burden to prove the truth of an alleged defamatory report once a claimant establishes that it may reasonably be viewed as bearing such a defamatory meaning. The basic American test of libel of public officials is far nearer the UK's own standard of proof necessary to successfully bring an action for malicious falsehood. For media lawyers and journalists alike, Dan Rather's questionable decision to sue the news organisation for which he worked for some forty four years and for so much of that time publicly fronted will make for interesting sport. It may also on a more serious level highlight the continuing fundamental differences in the legal and perhaps more surprisingly, the political environments in which our respective newspapers, television and radio news networks operate. Inadvertently or otherwise, this legal action may prove to be Rather's final significant contribution to journalism on both sides of the Atlantic.
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