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david westin

Westin has been president of ABC News since 1997. Prior to joining ABC as vice president and general counsel in 1991, he was a partner in the law firm of Wilmer, Cutler & Pickering. He started his legal career clerking for Supreme Court Justice Lewis Powell, who cast the decisive vote in 1972's Branzburg v. Hayes This is the edited transcript of an interview conducted on Sept. 14, 2006.

... As the president of a news division, can you explain what the public-interest clause of the FCC [Federal Communications Commission] Act is and what that means to you?

I think it's more than a legal provision. If there weren't an FCC Act, there would still be the same set of obligations for a news organization. ...

The founding fathers had a fairly radical idea, which was to really give sovereignty or the authority in the country to the people. And in order for the people to exercise that power, they had to have information. Even back in 1791, it was impossible for each individual to get all the information themselves. Certainly today, with 300 million Americans, we can't expect each individual person to go out and find it. And that's why, in the First Amendment, when they passed the Bill of Rights, they made a special provision for the press.

So my perception is we have a responsibility to go out and do our very best to gather information, sift [through it], find as much of the truth as we can, recognizing that's an awfully high goal, ... and provide it to the American people so that they can be better and more effective citizens. So that's my interpretation of what it means. ...

How profitable is ABC News?

ABC News, we don't give out individual information because we just don't report it as a company for SEC [Securities and Exchange Commission] purposes that way. But we're profitable. We operate on a margin of 10 percent, if you take the costs of the operating income returned to the company, something like that. Now, that can vary from time to time. It's been in the 5 to 12 percent range for the last 10 or 15 years.

“There's sort of a broad brush, you know -- network news has just gone soft, and it's because of a profit motive. … The subject is more complicated than that and more subtle than that.”

So if we see estimates of $600 million for gross revenue and $100 million for profit?

It's not wildly off. That's right, something like that.

So it's a profitable business.

It makes operating income, yes.

You originally worked with [Capital] Cities, right?

Yeah. I started as general counsel for [CEOs] Tom Murphy and Dan Burke.

Their purchase of ABC was made possible, in some ways, because of the deregulation that was going on and the expansion of the industry back in the '80s.

Yeah, I believe that's right. Now, I have to be clear. I came in 1991. The acquisition was actually in 1985. And when I was a lawyer, I didn't do communications work, so I'm a little bit at a disadvantage.

But I think one of the things that made it possible -- but this is just almost by lore, what I've heard, [oral] history -- is they wanted to take the owned stations of ABC and Cap Cities, and there always has been a limit on how many stations you can have, and, I believe, that station limit went up, and that made the acquisition possible.

And now ABC is part of Disney. ... It's a large multinational corporation.

It certainly is.

What are the pressures you're under, serving the public interest for a large multinational corporation?

Well, they're not the pressures that people think that I'm under. I mean, there are pressures without a doubt, but people tend to get it a little off, in my experience. The way I see it and have articulated it inside of ABC News, and also inside the larger Walt Disney Company, is that we are a business, and we are more than a business. The difficulty from my perspective in running a news division is the news division tends to hear the "more than a business" part, and the corporation tends to hear the "business" part.

So a lot of what I do is to remind the corporation there is a larger obligation here that is partly a public-interest obligation. It's the reputation of the Walt Disney Company as well as ABC. It's FCC rules, although, as you know, those have been really liberalized over time. …

But in addition to that, I think that there is a very solid business justification for the Walt Disney Company shareholders in pursuing the public interest at ABC News -- and if you just follow me on this, because this is, I think, terribly important: We are an asset of value to the Walt Disney Company. Put aside the public interest, put that aside for one moment. We are an asset of real value to the Walt Disney Company. If they decided to sell ABC News tomorrow, there would be some amount of money they could get for that asset. The value of that asset really exists, mainly, in our credibility. If people don't believe us, then that value of that asset will go to zero.

In order to have that credibility, we need to make decisions that are not profit-maximizing day by day. Covering a political election is not profit-maximizing. We would make more money for the Walt Disney Company if we didn't cover political elections at all. It costs millions of dollars every four years and even every two years. It costs millions of dollars, and there's very little or no revenue that comes from that. Taking a presidential address both costs money and has no advertising.

So if you just look at it in terms of profit maximization on a short-term time frame, it doesn't make sense. But in terms of the longer value of ABC News -- not just to the country or to our society, which I hope is real, but also even to the Walt Disney Company shareholders -- we need to be making those investments constantly for the value of the asset overall.

Understood, but the news business is not necessarily profitable if it's going to cover serious subjects that don't have either great audience appeal immediately or just simply in the public interest. That's what you're saying.

Well, no. We're profitable overall, and we do cover serious subjects that don't have perhaps as broad an appeal, although our job was always to make sure that appeal is broad, even on the most serious subjects.

Tom Bettag, a former employee, told us simply that today there's a growing conflict between public service and making a profit, and profit is winning out. He's reflecting on his experience here at ABC [as producer of Nightline].

Well, we have 1,500 people here who can have different reflections. I don't agree with Tom. Tom and I agree on many things. He and I don't agree on that.

Now, let's be clear. Are there times that there were things I'd like to do, and I don't think we have the money to do them? Absolutely. By the way, that's true when I go home to my house, too, and my wife wants to do something, or I would like to do something. We can't afford it. Everyone has a budget. So let's be clear. We don't have an unlimited budget, certainly. That's right, but I don't see that as a huge conflict. I truly don't.

In your experience here at ABC News and even before, I'm sure, as a consumer of news over the last few decades, the definition of news has changed. What ABC News would include as something that had news value has changed dramatically, hasn't it?

Well, I wouldn't put it that way. You could certainly argue that, in fact, what is included in news has changed -- you're right -- over decades and has gone back and forth. Actually, I read a speech recently by [former New York Times editor] Abe Rosenthal, I think it was, he gave out in Denver, where he'd gone back to The New York Times in the 1920s and taken a look at the front page, and a greatly disproportionate number of the stories were actually about prizefighters. He had a thesis, actually, that there was a shift in news starting after World War II as we went into the Cold War. So certainly it's changed.

What's happened more, though, than a shift in the definition of news is the number of outlets. If you go back 20, 30 years, when Roone Arledge started here in 1977, all of ABC News consisted of a half-hour evening newscast and a half hour on Sunday and some specials they would do occasionally.

That was all of ABC News. There was no Good Morning America; there were no prime-time news magazines; there was no Nightline. It was a very limited amount of programming. As that programming has expanded out, absolutely, there's been a wider range of topics covered on the news programs taken as a whole. That's clearly right. ...

What I mean is I look on the Web and you see your programming, let's say, for Primetime and it's "Teenage Girl Gets Ten Years for Oral Sex" or "Guides to Teenagers for Dating." That's news?

Well, I think news is what matters to people. I think that really is true information about what matters to people is news.

It's not current affairs. It's not the kind of news that you would consume. You have children, right?

Certainly.

You might have questions about having your children watch these stories.

Sure. Equally true of The Washington Post or The New York Times. There's a style section in The Washington Post; it doesn't mean that they don't cover matters of public interest. In fact, that's always been true, as far as I can tell. That's not different. There are new outlets. There are new ways of conveying things, but the range of topic subject, I honestly am not aware that that has changed dramatically. If it has, I'm just not aware of it.

Well, let me give you an example. On Sept. 10, 2001, the news organizations, particularly the broadcast news organizations and cable news, were consumed with [Rep.] Gary Condit [D-Calif.].

And shark attacks. I mean, we've gone back and talked about that since, that it was all shark attacks and Gary Condit that summer. Absolutely right.

And news divisions were involved in cutbacks. There were layoffs going on at CBS. There were some layoffs here at ABC News. Sept. 11 happened. People were being hired back because of the emergency, and for the first time really in memory, international news -- what was going on in Saudi Arabia, what was a Wahhab -- became the front of the book for ABC News and many other people.

Sure.

And now, in many ways, it has gone back to where it was before. What happened?

Well, first of all, I'm not at all aware that it's gone back. You assert that, but I'm not aware of that at all. We're investing millions of dollars every year in a Baghdad bureau that didn't exist before 2003, the spring of 2003. We have invested a lot of money, and we're continuing.

And take Sept. 10, 2001. [We had] an investigative unit that had been following bin Laden for, what, at that point, three years, as I recall. I think John Miller's interview with bin Laden was '98, I think it was. So we have been investing in that area for some time. Now, does it go up and go down? Absolutely. There was a huge investment in Moscow around about the time of the coup. ... So absolutely investment follows the news.

One of the things about the news, which is different from entertainment, is we can't make it up. We have to cover the news where it is, when it happens, where it happens. Sometimes that will be domestic, and sometimes it will be foreign, and sometimes it will be political, and sometimes it will be military. ...

Just recently, CBS debuted a new evening news broadcast. An analysis of the broadcast -- someone named [Andrew] Tyndall [looked at] who does hard news, soft news, said that week CBS only had 19 minutes of what he considered to be hard minutes; ABC had 46 minutes; NBC had 44 minutes. He was implying that this attempt to get a new audience was basically going downmarket, was going for soft news. Is that the trend?

There are trends that come up and go down. I'm not in a position to comment on what CBS put on the air. They're obviously putting on what they think is appropriate and will be successful.

Our theory of the evening news is to cover the news, and we will continue to cover the news because we think that there is a role for a well-produced, well-edited, concise broadcast in the evening that summarizes the things that you want to know about.

But no one's contending that the evening news doesn't try to present the news. I guess I'm a little surprised that your magazine shows have a peculiar story selection editorial bent to them, if you will. ...

Right. But as I perceive it at least, they tend to be more what I would think of as "back of the book," to use the magazine expression. I mean, they tend to be more of what you'd see in the second half of Time magazine or the second half of Newsweek or something.

"Teen Girls Tell Their Stories of Sex Trafficking and Exploitation in the U.S." -- you've seen that in Time magazine?

I'd have to go back and look, but that's ... certainly not inconsistent with things I've seen in Time magazine, certainly not. …

What I'm getting at is that after Sept. 11, there was a greater interest because of the national emergency in international news and national security news, and it wiped Gary Condit off the face of the tube.

Absolutely.

And there was, in some people, a sense that the news was really doing what it was supposed to be doing.

We do much better work when there's a big story. There's just no question about it.

You even do documentaries.

Well, we've done documentaries throughout. ABC News -- I'm very proud of the fact that we've done documentaries right straight throughout, and we're committed to [doing] documentaries.

You did more of them in that period of time on international subjects than you had for quite a while before -- documentaries with Peter Jennings appearing on the air regularly, explaining to the public what was going on. I guess I'm trying to say, to many people, there was a sense that possibly the news divisions were really going to do the kinds of things they really wanted to do.

Listen, we love to cover big stories. And foreign stories, in some ways, for at least some people in the news division, are the most interesting and challenging to cover. There's no question about that.

But again, I'm sorry to question your facts, but -- and I'd have to go back and do this. If you look at the documentaries Peter did in 2001, 2002, I don't think any of them were about foreign topics. I think they were all domestic. Now, we did do -- I will agree, because I was proud of it -- we did do three hours, I think, on the eve of the war in Iraq in early 2003. That's absolutely right.

But if you look at the documentaries we did, 2002, 2003, and certainly the ones Peter was working on, my recollection [is that] they were on things like the role of government health policy and a policy subsidizing wheat and on obesity, which was a really important documentary. It was done on a topic that hadn't been covered. They were on topics like that. So part of it is that I really don't know the things that you're saying are true, and they may be true, and I just don't know them.

But part of it is I think that it's easy to oversimplify. There's sort of a broad brush, you know -- network news has just gone soft, and it's because of a profit motive. And it makes a really good story that particularly people in print like to write. The subject is more complicated than that and more subtle than that.

In what way?

In fact, I think the soft/hard distinction is much harder than people would like to make it out to be. The profit motivation is clearly an issue in the sense that we need to return some reasonable amount of income to the Walt Disney Company.

By the way, the Walt Disney Company knows and will say, if you push them, they don't expect us to help their stock price. They never expect us to make a lot of money for Walt Disney. It just has to be a reasonable return. And that places certain limits on it. So that's absolutely true.

On the other hand, when 9/11 happened, if I had not been owned by the Walt Disney Company, I could not have stayed on the air for four and a half days straight without a commercial interruption. When Iraq came in 2003, I could not have spent the millions of dollars we spent to go over and cover that. I couldn't be spending the millions of dollars we're spending right now in Baghdad. If it had been ABC News, Inc., if we'd been a separately controlled corporation with our own shareholders, we could not have done that. We would not have had the resources.

I can write a check on the Walt Disney Company without asking them that will clear at the bank. So it's a more complicated, subtle story than that. The story that you suggest is one that's often written about, and it makes a nice, simple story, but it's more complicated than that.

More complicated because the resources of the Disney Corporation allow you to do things that you couldn't do otherwise.

Absolutely right. Absolutely right. People tend to think that we don't cover a story because of a profit issue. That's not true. Now, there are structural issues where we don't have as many bureaus as we used to have, and certainly the cost of that figures into it without a doubt. There's no question about that.

Now, whenever this subject comes up, as we ask ourselves repeatedly internally, the question I ask is, "Are there stories that we want to cover, overseas or domestically, that we're not allowed to cover, and what are the stories, and how [could] we do it?"

So we've experimented, for example, with a man named Martin Seemungal who shoots his own material and is his own reporter in Nairobi, Kenya, because I'm very concerned we don't have adequate coverage in Africa. We have a whole continent, for goodness' sakes, and we've got a small operation down in Johannesburg, [South Africa]. We've got an individual in Nairobi, but we're not adequately covered there. We need another bureau besides Baghdad in an Arabic Middle Eastern country. We have, again, a small operation in Egypt, but we need more of a bureau operation. So there are shortcomings, without a doubt.

And money plays a factor. By the way, if Iraq went away tomorrow, which I'm sure some people would like for reasons far beyond ABC News, but just from our selfish point of view, we could open any number of bureaus around the world with the money we're spending on Iraq -- any number. …

... We interviewed John Carroll, who was the editor of the Los Angeles Times, and he's been up there in Shorenstein Center [on the Press, Politics and Public Policy at Harvard's Kennedy School of Government], thinking. He presented this perspective that's still looking at the news industry in the United States -- that 80 to 85 percent of the new information every day is still produced by newspapers; that the television broadcast industry used to do a lot of news gathering, a lot more than it does today. Is that ever going to come back?

I hate to quibble, and I do agree that newspapers provide a lot of the original reporting. ... A lot of the newspapers are relying upon Associated Press, which has enormous resources around the world, as you know. So I just don't know about 80 percent/20 percent, and I don't know whether that's changed over time.

Clearly, we have fewer people assigned to bureaus that we did 20 years ago -- that's right -- and we have somewhat fewer bureaus. We have more bureaus than people think we do, but we have fewer bureaus.

Is that going to change and turn around? No, I don't think so. I don't think so. Part of that is because other outlets have grown up that can give us the material that we now need. The Associated Press now is involved in television news, not just print news, as you know. They've got APTN [Associated Press Television News], which is very successful and provides a lot of coverage around the world. We have a relationship with the BBC, and we rely upon the BBC for reporting in some places where we don't have operations. We have a relationship with the NHK [Japan Broadcasting Corporation].

Technology has made changes so you don't need as many people when it comes to the technical side. You simply don't. You can get people in places and get pictures out a lot faster. So I don't think that that will change, no. ...

Ted Koppel was embedded in Iraq in the invasion of Iraq, and Nightline did a lot of coverage of the invasion. And we're told by [former executive producer] Mr. [Leroy] Sievers that that summer, you authorized them to cover Iraq intensively, which is what they wanted to do.

Yes.

But the ratings were low.

Well, that happens.

And by the fall, they weren't doing it anymore, not on the level or intensity they had before.

Well, no one was covering that level of intensity. But that happens. We can't make long-term decisions by individual ratings. This is something that I struggle with people all the time about.

Sometimes reporting that you do is like a capital investment: You invest in your relationship with your audience. If they know that you're there for them for the long term -- because they'll come back to you in the long term. So the fact that individual ratings for individual programs go well does not necessarily bother me.

But no. What he's implying is -- and that's the general critique -- there are stories where you may not get ratings, but the importance of the story is such that it's your obligation to stay on it, and that it's economics --

Sure. We did that with the war in Lebanon involving Hezbollah and the Israeli military just this last summer. We stayed on that as the lead in World News far past what anyone would think that the American public were clamoring for. So we make those decisions. Now, I'm sure there are people who think we should go farther, or we should do it more often, but what I'm saying is this is a matter of degree, not of kind. We make these decisions all the time that say, "This is an important story." Should we stay with this story, or should we lead with this story? Should we put it in a prominent position because it's the right thing to do, even though we have a sense that the American people are tiring of it because, frankly, it's being shown up in the ratings? We make those decisions all the time internally.

You're saying that, in your tenure at ABC, the tyranny of the ratings hasn't increased in terms of what you cover and how you cover it?

Well, no. I really do think that there's a short-term and long-term issue. The importance of ratings is great. There is no question about that. Has it increased? It probably has. ... But I think of ratings, when it comes to news programming, as a programming issue over time, not an individual story issue or a coverage issue. I really divorce those two. The question is what the program is over time, and does it attract an audience?

Now, should we be concerned with attracting an audience? Absolutely. Put aside economics; put aside ratings. Anybody who's in journalism who doesn't care if anybody's listening to them or watching them should go do something else. They should go write a diary or a personal journal. Any of us in journalism, if we believe in what we're reporting, and we think that it's something people ought to hear, want a lot of people to hear it and want a lot of people to see it. So I would be concerned about ratings even it weren't for economics. ...

… Has the standard for what qualifies as news changed, primarily because of the pressure of profits and ratings?

No. The standard has changed, and it's broadened, not lowered. Because I will find you what you would perceive as a noble, serious news piece to match every one of the examples that you pick out of what you find ignoble. So it's broadened, not lowered.

I'm not saying it's ignoble, by the way, I didn't say that. I'm saying it's different; it's not news.

It's changed because there are a wider number of outlets. … The Web has increased it geometrically, just in terms of the amount of material on it. So absolutely it's broadened: There are more topics we cover; there's a wider range of topics we cover. Now, again, I would say to you that for just about every one you find, I could probably find something in a prominent national newspaper and/or a national newsweekly that, if not the same subject, would be of the same ilk. …

We have 31 hours of programming, plus we have radio 24 hours a day, plus we have now our Web site. So there's a wider range of topics covered, absolutely.

Back in 2000, you said, "If we don't add a younger audience, sooner or later our audience is going to die."

True.

That's true of any business, really.

True. …

Is that why you hired Leonardo DiCaprio or had Diane Sawyer do a story on Elian Gonzales?

No. Let me take those two different issues. First of all, I don't believe in programming for a younger audience. When I had some responsibility for entertainment programming, I didn't believe it either there, either. … Frankly, as far as news programming goes now, I've always said internally, if you want to reach more younger people, reach more people, period, and some of them will happen to be younger. I just don't believe in the segmentation, that we can direct a program at that particular age group. I don't believe it.

Leonardo DiCaprio was simple. I wanted to do a Primetime documentary on the environment. Leonardo DiCaprio was going to be the chair of Earth Day that year, and the idea was if we had Leonardo DiCaprio we would get, yes, a bigger audience, that's right, because he was a big name. … In retrospect, would I do it again? No. Not because of Leonardo DiCaprio. He was doing it out of the goodness of his heart for the right reasons; he cared about the environment, which is not a bad reason. I was doing it for the right reasons. I wanted to do something on the environment that would get a broader audience. But in retrospect, it caused much more furor than it was worth, and it was a mistake. I wouldn't do it again.

Why did it cause such a furor?

Well, because as it turned out, Leonardo DiCaprio ended up sitting down with the president of the United States and doing what looked like a formal interview, which was never my intention, certainly. As soon as I heard there was any possibility of that, I said, "You cannot do that, that's a mistake," in part because it's not fair to Leonardo DiCaprio; it's not what he's trained to do. It's not what he does for a living. …

But it got done and the question is, do you air it or do you not air it? It caused a furor because journalists are very concerned about their profession and making sure that other people don't pretend to be journalists and poach on their profession. And it caused a stir largely because people within ABC News were very upset. And I understand why they were upset.

Because entertainment values were encroaching on journalism values.

Well, no.

No?

No. No. It was an entertainment figure that could draw an audience. But the point was to portray true things that were vetted through the editorial process. It was not to present an entertainment show. If you go back and look at the documentary, you won't confuse it with an entertainment program. Trust me. It was not an entertainment program. Frankly, it wasn't even all that entertaining. It was a factual program. But it was a mistake, there's just no two ways about it; I admit to that. …

You testified recently about a shield law for journalists.

Yes, I did.

Why do journalists need a federal shield law? Why should you have special legal privileges? And have you been able to define journalist?

Forgive me for wrapping myself in the Constitution, but the First Amendment gives special protection to journalists. It's not just free speech, it's press. That's a word in the Constitution. It means something.

So as far as determining who is a journalist or not, courts have had to do that since time immemorial. To whom does that privilege apply?

And when you say, "Why should there be special protections?" even if it's not within the words of the First Amendment, it's certainly within the spirit behind the First Amendment, which says that there is a special responsibility, as well as role, that people who are journalists in the press have in our Constitutional form of government. It's not because we're special or we should get special privileges. It's because of what service we do for the American public when we're doing our job properly….

The question is, how big should the protection be? How far should it extend? And whether, in fact, some of the subpoenas that are being exercised now, some of the coercion being applied to reporters goes against at least the spirit of that First Amendment. That's the question for me.

You believe journalists should be protected from subpoenas related to federal grand juries?

I believe firmly that journalists should be required to give information only as a last resort; only in a criminal proceeding of true importance, where there is other reason to believe that there is criminal activity involved. … I do not believe in absolute privilege. There's not an absolute privilege for a lawyer/client or doctor/patient or anyone else. There is no absolute privilege in this country; there have to be some cases where you overcome it. …

The government has subpoenaed reporters from the San Francisco Chronicle for possession of grand jury material.

I know. In BALCO.

Right. Something that your reporter, Brian Ross, does regularly.

Absolutely right. Well, and we've reported on BALCO a fair amount, as well.

Right. If there's a leak investigation and they are the only people who can help identify where that information came from, why shouldn't they testify?

First of all, if you open up that exception for leaks of grand jury [materials], then it'll consume the rule. Because that means every time that the act of leaking itself was a crime, then you just go immediately to the journalists and it's game, set, match. So it swallows the exception.

But my personal view, as I've written about, is if you think about that circumstance as in some of the government leak situations, they have the control over the leak. They can control the material. It's not like it's some private party out there. Let them worry about who they're controlling. Why do they have to go to the journalists for the information? They know who they gave the information to. The grand jury is part of the government. So why on earth are we going to turn to the journalists and put them in the dock and punish them when the one thing you know is they didn't do anything wrong? They didn't violate any criminal laws. And they didn't have control of the information.

But the Justice Department guidelines [for opening a leak investigation], as they already exist, say they have to exhaust all other means until review in Washington provides approval to the local U.S. Attorney to issue that subpoena.

That's absolutely right.

So presumably they've done that. The journalist is the last resort.

First, those don't apply at state and local proceedings; they don't apply to special prosecutors. And most important for me is, who gets to decide? Does the Justice Department, the chief prosecutor get to decide? Or does an independent court get to decide? …

When you leave it to the prosecutor to decide whether it's really important to go after the journalists, the prosecutor almost every time or every time will conclude of course it's important to do it. So that almost is the same as no rule at all. And therefore, I think it's critically important you turn to an independent judiciary -- that's why we have an independent judiciary -- to review that question.

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