frontlinesmoke in the eye

anatomy of a decision


Facts and context in the "60 Minutes" decision not to air a tobacco industry exposé


1993
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March Jeffrey Wigand, head of research for Brown & Williamson tobacco, is fired after some four years with the company. Wigand claims B &W was trying to kill his research. Wigand signs a confidentiality agreement in order to receive his severance benefits.
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September Brown and Williamson sues Wigand, suspending his health insurance and severance benefits, and contending that he violated his confidentiality pledge by discussing the terms of his severance with another company executive.
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November Wigand signs a "nondisclosure settlement agreement" that is tougher than his initial confidentiality pledge with Brown and Williamson. (B &W was aware that Wigand had been called to testify as part of a 1993 U.S. Justice Department investigation into Philip Morris' "fire safe" cigarette program.) Wigand's benefits are reinstated.
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1994
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Early February Lowell Bergman meets Jeffrey Wigand while producing a "60 Minutes" story on Philip Morris' "fire safe" cigarette. Bergman asks Wigand to help him interpret secret internal Philip Morris documents anonymously sent to him in late 1993.
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February 28 ABC's newsmagazine, "Day One," broadcasts a story contending that Philip Morris "spikes" the nicotine content of its cigarettes.
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March 27 "60 minutes" airs its story on Philip Morris' "fire safe" cigarette program--research, the story contended, which was killed by Philip Morris for fear of negative legal ramifications. During the course of the story's production, Wigand is reportedly paid an estimated $12,000 for his time and expenses as a consultant.
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May 12 Stanton Glantz, professor of medicine at the University of California, San Francisco, unexpectedly receives an anonymous donation of some 4,000 pages of Brown & Williamson documents.
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July The Justice Department opens a criminal investigation into possible perjury by seven top tobacco company executives who testified at April 14 congressional hearings that "nicotine is not addictive."
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1995
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March Bergman files a "blue sheet" with "60 Minutes" proposing an investigative story on Brown & Williamson. The story is quickly approved and Bergman and his CBS team begin reporting with Wigand in Louisville.
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June Wigand's lawyer negotiates with CBS lawyers on the question of indemnification for legal fees and costs in any libel suit that might arise in connection with Wigand's appearance on "60 Minutes."
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July 1 Stanton Glantz, professor of medicine at the University of California, San Francisco, posts the voluminous, internal Brown &Williamson documents on the Internet.
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July "60 Minutes" learns that Wigand will be a witness in the Justice Department's criminal investigation of the seven tobacco CEOs and their possible perjury during the April, 1994 hearings. Andrew Tisch, the CEO of Lorillard tobacco and the son of CBS Chairman Laurence Tisch, is one of the seven CEO's under investigation. "60 Minutes" also learned that Wigand was listed as an expert defense witness for ABC in its Philip Morris/R.J. Reynolds suit.
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August 1 Laurence Tisch announces at a press conference that the Westinghouse Electric Corporation will pay $5.4 billion to acquire CBS Inc. The announcement comes one day after the Walt Disney Company agrees to pay $19 billion for Capital Cities/ABC Inc., a merger that creates the largest entertainment company in the world.
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August 3 Jeffrey Wigand and his wife agree to be interviewed by "60 Minutes" correspondent Mike Wallace, after a summer of indecision about whether to appear on camera. Producer Bergman gives Wigand a handwritten note assuring him that CBS would not air the interview without his permission. Bergman later says that he felt this to be a courtesy, not an extension of "veto power" over the story to Wigand.
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August 21 ABC News agrees to apologize for its February 28, 1994 "Day One" report that said Philip Morris and R.J. Reynolds controlled and manipulated nicotine levels to addict smokers. The carefully worded apology--delivered first on-air at half-time of Monday Night Football--said, in part,

"We now agree that we should not have reported that Philip Morris and Reynolds add significant amounts of nicotine from outside sources." It added, "We apologize to our audience, Philip Morris and Reynolds."

Capital Cities/ABC also agreed to pay all legal fees involved. The sum-- initially estimated at $2-3 million--ultimately totaled some $15 million.

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September 6 "60 Minutes" producer Bergman is called into CBS corporate offices at "Black Rock" to meet with CBS lawyers regarding the Wigand story. Bergman meets at length with CBS lawyers, reviewing the facts and methods of his investigation and turning over all notes and memos regarding Wigand. The lawyers report to Bergman the concerns of CBS general counsel Ellen Kaden regarding the possibility of a Brown and Williamson suit for "tortious interference." The lawyers also pass along Kaden's order to halt reporting on the story. In Bergman's twelve years at "60 Minutes," this is his first trip to Black Rock; in his entire reporting career, he says, this is the first time he has heard of the concept of "tortious interference."
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September 7-11 Bergman prepares a rough assembly and draft script of the Wigand story. Mike Wallace "tracks" the rough narration.
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September 12 An intense, lengthy meeting is held at Black Rock in the conference room of Eric Ober, CBS News President, to discuss the Wigand interview. In attendance are Ober; Ellen Kaden, CBS vice president and general counsel; Phil Scheffler, "60 Minutes" senior producer; Don Hewitt, "60 Minutes" executive producer; correspondent Mike Wallace; and producer Lowell Bergman. Presenting the facts of the case, Bergman makes clear that Wigand had been subpoenaed in the Justice Department perjury probe, which was said to be focusing on Andrew Tisch and James W. Johnston, the chairman of R.J. Reynolds Tobacco. Also discussed: the ABC/Philip Morris settlement and Wigand's involvement in other legal proceedings. Possible ways to air the story while minimizing risk to CBS were debated. The meeting concludes with Kaden saying that she will send the matter to outside counsel for a second opinion. Kaden fears a suit by Brown & Williamson against CBS for "tortious interference" with Wigand's 1993 confidentiality/non-disclosure agreement.
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October 2 General counsel Kaden issues a final decision not to run the Wigand interview. Kaden reports that outside counsel P. Cameron Devore generally concurred with her on the serious possibility of a "tortious interference" action against CBS Inc. by Brown & Williamson.
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October 17 Don Hewitt speaks at the National Press Club. Toward the end of his remarks, he alludes to the CBS/Wigand decision:

"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."

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October 18 The Wall Street Journal, guided by Jeffrey Wigand, discusses two major internal reports by Brown & Williamson Tobacco Corporation showing that leading U.S. tobacco companies enhance nicotine delivery to smokers by adding ammonia-based compounds to cigarettes. The documents indicate that while cigarette-makers may not boost nicotine content itself, most add chemicals that increase the potency of the nicotine inhaled. An accompanying article looks at other additives to Philip Morris's Marlboro cigarette. Wigand is not named in the story. The substance of the report was largely similar to the embargoed "60 Minutes" piece built around Wigand's August 3 interview. In 1996, the Journal won a Pulitzer Prize for this story.

CBS files a proxy statement with the Securities and Exchange Commission detailing the money to be gained by CBS executive officers and others on completion of the Westinghouse buy-out. Under the heading, "Interests of Certain Persons in the Merger," it is reported that, among others, Peter Lund, CBS Broadcast Group president, will get roughly $ 2.2 million; Eric Ober, CBS News president, will get $ 1.46 million; Ellen Kaden, executive vice president and general counsel, will get $1.2 million, and Laurence Tisch, CBS chairman, will get some $12 million.

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November 9 The New York Times is first to report that CBS lawyers ordered "60 Minutes" not to air the Wigand interview. "I'm very comfortable with the decision," Hewitt is quoted as saying. The story concludes: "Both Mr. Wallace and Mr. Hewitt said they had no objection to the decision made by Ms. Kaden or Mr. Ober."
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November 12 "60 Minutes" airs a redacted version of the Brown and Williamson tobacco story: Wigand is not identified as the source. At the end of the broadcast, Mike Wallace offered a "footnote":

"We at '60 Minutes'--and that's about 100 of us who turn out this broadcast each week--are proud of working here and at CBS News, and so we were dismayed that the managment at CBS had seen fit to give in to perceived threats of legal action against us by a tobacco industry giant. We've broadcast many such investigative pieces down the years, and we want to be able to continue. 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."

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November 13 The New York Times publishes an editorial, "Self-Censorship at CBS" in which they write:

"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 these days. With a $5.4 billion merger deal with the Westinghouse Electric Corporation about to be approved, a multibillion-dollar lawsuit would hardly have been a welcome development."

Mike Wallace appears on the PBS interview program, "Charlie Rose," saying, among other things, "We were simply dead wrong. . . we were caving in."

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November 17 CBS Inc. shareholders vote by a 2-to-1 margin to sell the broadcasting company to the Westinghouse Electric Corporation for $5.4 billion.

The New York Daily News, having obtained a copy of the redacted November 12th "60 Minutes" script, is the first to name Wigand as the story's source.

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November 29 At the request of anti-tobacco plaintiffs' lawyers, Jeffrey Wigand provides a deposition in a civil action against tobacco manufacturers brought by the state of Mississippi. The state sought reimbursement for the cost of treating smoking-related illnesses over the years. (Read the Testimony).
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1996
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January 26 The Wall Street Journal obtains Wigand's November, 1995 Mississippi deposition and publishes it in full on their web site. In the transcript, Wigand supports previously publicized contentions that Brown & Williamson lawyers improperly controlled research programs in an effort to limit potential liability in injury lawsuits filed against the company.
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February 4 The Wigand interview airs on "60 Minutes". In the introduction to the story, Mike Wallace explains:

CBS management wouldn't let us broadcast our original story and our interview with Jeffrey Wigand because they were worried about the possibility of a multi-billion dollar lawsuit against us for tortious interference, that is, interfering with Wigand's confidentiality agreement with Brown & Williamson. But now, things have changed. Last week, the Wall Street Journal got hold of and published a confidential deposition Wigand gave in a Mississippi case, a November deposition that repeated many of the charges he made to us last August. And while a lawsuit is still a possibility, not putting Jeffrey Wigand's story on "60 Minutes" no longer is."

At this point, the critical substance of Wigand's testimony has already been reported by other sources.

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