Courting Trouble   

The legal system is no place to sort out editorial disputes.

INVESTIGATIVE JOURNALISM often depends on whistleblowers--insiders who provide information to reporters about the wrongdoing of government or the corporate world. The value of whistleblowers in keeping society informed and officials honest is so obvious that many states, as well as the federal government, have statutes on the books prohibiting retaliation against employees who bring illegal activity to light.
But in a novel case, two plaintiffs--Steve Wilson and Jane Akre--aren't ordinary whistleblowers. They are award-winning journalists, a husband-and-wife team, who claim that Tampa's WTVT-TV told them to alter a news story they were preparing about the use of BGH, a synthetic hormone injected into cows to increase milk production, after the station received a letter questioning the story's accuracy from a lawyer representing Monsanto, a manufacturer of the hormone.
The reporters allege that WTVT fired them after they refused to make those changes and threatened to report the incident to the Federal Communications Commission. Their firing, they argued, violated the Florida Whistleblower statute, which allows employees to sue if their employer retaliates against them for disclosing to the government conduct that violates laws, rules or regulations.
WTVT contends, among other things, that the changes it asked the reporters to make fell within the editorial discretion and judgment of station management, and that it was justified in terminating the employees for insubordination. In August, a Florida jury awarded Akre $425,000 in damages, though it ruled against Wilson. The Fox-owned TV station promptly filed a motion to vacate the jury verdict.
The charges and countercharges in this case are recounted in hundreds of pages of legal pleadings. Exactly who did what to whom, and why, remains the subject of intense disagreement between the parties. This much, however, is clear: The heart of the whistleblowers' case turns on whether the station's actions, as alleged by the two reporters, violate the law.
In support of their lawsuit, Akre and Wilson rely on the FCC's prohibition against deliberate distortion of the news. Complaints that a broadcast licensee has slanted news coverage may--although rarely do--serve as grounds for the commission to deny the renewal of a license. The journalists claim that this FCC policy is a law, rule or regulation, and that therefore, their firing is covered by the Florida Whistleblower law.
Fox contends that the FCC policy is not the kind of "regulation" contemplated by the Florida statute, does not apply to the facts alleged, and, even if it did, it would violate the First Amendment rights of the broadcaster if it was used in this case. Fox cites federal court rulings that say the choice of material to be used in a news story must rest with the station, not the government.
The issue of integrity and accountability is much on the minds of journalists today. The Radio-Television News Directors Association's Code of Ethics admonishes its members against reporting anything known to be false. In the Florida trial, the journalists introduced into evidence the Society of Professional Journalists' Code of Ethics, which also warns against bowing to outside pressure to influence the news.
By their own standards and, arguably, under the terms of ethics codes, Akre and Wilson were doing the right thing: resisting attempts to force them to tell a story that they did not believe to be true. Fox counters that the changes were essential to producing a fair and balanced story.
It's the kind of disagreement that raises intriguing and important issues. News organizations should report on it, and journalism ethicists could weigh in to help determine who was right. In this case, Akre insists the jury found there was a distortion of the news, but Fox insists the jury found only that Akre had a good-faith belief that there was a distortion. Now it's up to the appeals court, which heard arguments October 12, to sort it out.
But in controversies involving employer-employee disputes about content --the "60 Minutes"/Jeffrey Wigand and CNN/Tailwind debacles, to name two--it is reckless to invite the courts to sit in judgment of news decisions, however flawed those decisions may seem. They are all too likely to take you up on it. The First Amendment dictates that the news media should regulate themselves. The judicial, legislative and executive branches must keep out of it.
As the FCC itself once said, for the government to intrude on news decisions would be "more dangerous to the public interest than any possible slanting of the news." However righteous their cause, and however pure their motives, reporters who take their fights with management over editorial decisions into the courtroom are asking for trouble.