frontlinesmoke in the eye

interview: victor kovner

Q: WHEN DID CBS GET IN TROUBLE WITH THE LAW PROHIBITING SO- CALLED `TORTIOUS INTERFERENCE?'

Kovner: Well, the issue arose when Wigand's attorney requested that CBS indemnify Wigand. Not merely for a claim for libel, but for any liability under Wigand's commitment of confidentiality that he'd entered into with Brown & Williamson so that his attorney was basically asking CBS to assume all of Wigand's obligations under his commitment of confidentiality.


First Amendment lawyer.
When CBS evaluated that request, and I gather they gave Cam Devore as their outside counsel, and apparently we don't have his opinion.--but apparently he found some exposure. I think that there is certainly merit to the view, indemnify a source from their commitment of confidentiality, relieve them of their obligations. That might well constitute tortious interference with contractual relations. There would, of course, be a First Amendment defense available to CBS. I don't know that it would prevail. But you must distinguish that from simply asking someone who was bound by a commitment of confidentiality and a journalist says, you know, there's enormous public interest, tell us, the public needs to know that. That would not be tortious interference.

Q: IS IT DIFFERENT FOR ME TO GO TO A PERSON WHO HAS A LEGAL BINDING COMMITMENT NOT TO TALK ABOUT HIS EMPLOYMENT AND I SAY, COME ON, TELL ME ANYWAY, AND HE DOES. WHY IS THAT NOT TORTIOUS INTERFERENCE?

Kovner: Because one, it's a journalist's job to get the news. That and the fact that in the process, someone may violate some commitment that source has does not divert from the principle effort of the journalist to get the news and where the potential breach of contract is merely ancillary to the news gathering effort, no claim of tortious interference has ever been sustained. If you go a step beyond that and the news organization now enters into a contract with the source, and says, we'll assume all your obligations, we'll pay all your attorney's fees, that is a different factual setting and was the setting that I think gave the outside counsel to whom CBS turned a serious concern. Not a lot of precedent, and I think there was a serious issue.

Now the unfortunate outgrowth of this development was that by failing to explain what had happened here, CBS and 60 Minutes aired its program saying that CBS lawyers prohibited them from running the interview back in November on the grounds of tortious interference. It appeared to the public--wait a second, there's a new threat to journalistic freedom in this country. People can be sued for tortious interference merely because a journalist or a news organization seeks information that they may be obligated by some commitment not to disclose. There's no basis for that and CBS management, I think, did the industry, a great disservice in letting that misimpression arise. I think that's been corrected in significant part, at least, in the intervening months now that we know the full circumstances.

And now that CBS has at last, even after they finally entered into the indemnity Wigand originally sought as a result of the leak of the substance of the interview. CBS has at last run the interview and I think that has eased, I think, people's concerns. Now, certainly CBS management did not take a very stalwart decision on this. However, CBS management was under legal advice from the corporate counsel saying that it was against the law to even have conversations with Wigand. To continue researching this story would expose this huge corporation to annihilation.

Q: HOW MUCH LEGAL BASIS WAS THERE FOR TAKING THAT ....?

Kovner: I'm troubled by that advice. I gather that information has come out more recently after the initial broadcast. The notion that CBS was prohibited from seeking additional information, I have to say, I respectfully differ with. There be, in my view, no basis for that. Mind you, they've gotten themselves into something of a bind when they made a commitment to Wigand not to run it at all until he approved it, because there were pending investigations and Wigand wanted, apparently, to have those investigations proceed first.

So once CBS gave Wigand the commitment not to run it, until Wigand approved, he in effect had a right of control over the interview. You may need to do that under certain circumstances but it's an unfortunate situation. And then when Wigand made the demand through his lawyer that he be indemnified, I don't differ with the conclusion not to grant that indemnity. CBS basically had to, at that point in my view, wait for Wigand's approval.

But to let the public know that the reason they weren't broadcasting the interview when they ran the program in November, was that there was a threat of the tortious interference claim--that did a real disservice, I think, to everybody. And it was an overreaction to a potential liability, I gather. It was also not coming clean. It was not explaining what had happened. Had they explained what had happened, the adverse inferences that many people drew, that it was because of the corporate merger, that it was because of the money the...corporate counsel was earning as a result of the merger, those unfortunate, I don't think meritorious analyses wouldn't have emerged if they had explained what they had done. I think people would have had a very different view. But as a result of their lack of candor, they gave way to a notion that this rarely asserted tortious interference with contractual relations is in fact a threat to the free press in this country, when it's simply not so.

Q: HOW MUCH WEIGHT DOES THE THREAT OF TORTIOUS INTERFERENCE CARRY AS A THREAT AGAINST THE PROTECTIONS IN THE CONSTITUTION?

Kovner: On a day in and day out basis, the issue seldom, if ever, arises and need never arise. It can remotely arise when you're interviewing someone who is obligated by contract or some enforceable obligation not to disclose information, but the law in this country is that a journalist is free to ask. Even if they know the person is under some obligation not to disclose. You're allowed to ask. You can't pay someone to break their obligation, I think that would be actionable, and the only time it may arise as a significant issue is when the source demands some sort of contractual commitment in order to relieve them of their obligations....that presents the closer question.

Q: AND EVEN IN THAT CASE, BY YOUR ANALYSIS, IT'S A DEBATABLE...

Kovner: It's a debatable issue. Had CBS granted the indemnity to Wigand that they subsequently granted, and had Brown & Williamson sued CBS for tortious interference with their contract with Wigand, CBS would have presented the defense that it was an urgent public health information that was needed and that would have been a serious first amendment defense. Whether it would have been successful, we don't have, there's not a lot of law on that. All I can say is it, it was relatively unusual and I think that the press has a lot of protections in this nation as a result of our Constitution and of various legislation protecting news gathering. And I deeply believe in those protections. The press ought to be wary about entering into special contracts with their sources. When they do that, they are pressing the envelope. There may be circumstances where it's appropriate indemnifying someone from a liable claim if what they say is true, is such an example. This kind of action doesn't have a lot of precedent in other words. Relieving someone of their contractual obligations and I'm not sure that that's something the press really needs to do to get the news in this country.

Q: I JUST WONDER, IF IT BECOMES THE PRACTICE FOR CORPORATIONS OR ANY INSTITUTIONS TO EXTEND THEIR POWER TO SILENCE AN EMPLOYEE INTO THE INDEFINITE FUTURE BY VIRTUE OF THESE CONTRACTS, HOW DOES THE MEDIA GET AROUND THAT OTHER THAN BY SAYING, WE'LL HOLD YOUR HAND TO THE LONG HAUL HERE?

Kovner: People, if they have urgent public information, newsworthy information, manage to get it out. Journalists do that every day. They pull their sources, information comes out through confidential sources and confidential sources have a significant degree of protection and the journalist has a significant degree of protection under law. After this came out and CBS held the interview, you're familiar with the Charlie Rose program, where Mike Wallace and Morley Safer and I were discussing the developments, I said then--one, we didn't know all the facts, they will come out. Two, I bet the substance of Wigand's information will come out and within a week, out it came and through a leak into the Daily News and then CBS, which obviously had a role in the leaking, although it may have been against the will of their management, then they granted the indemnity that they had previously declined to grant it. So at that point they found themselves in the worst of possible worlds. They were, in effect, indemnifying Wigand in the Brown & Williamson litigation against him and they hadn't run their interview. Happily they ultimately decided to run the interview and I think vindicating the work of the journalist at CBS in the important program that was subsequently broadcast.

Q: WOULD YOU HAVE SHRUNK FROM TACKLING THAT CONFIDENTIALITY AGREEMENT WITH THE SUPPORT OF THE FIRST AMENDMENT BEHIND YOU?

Kovner: I would want to look hard at the first amendment defenses. As I said before, I don't think that the press should, you know, willy nilly enter into complex contracts of indemnity with sources. The press doesn't need that to get the news in this country. We've got plenty of protection and contracts with sources ought to be entered into only in the exceptional circumstances so that I can't say that I would've willy nilly sought, made that indemnity that Wigand's lawyer was seeking. What I wouldn't have done was foster the false impression that was permitted to be created when the CBS 60 Minutes program first aired.

Q: WHICH IS THAT THIS CONTRACT JUST BLEW AWAY ALL THE CONSTITUTIONAL PROTECTIONS THAT THE MEDIA HAD, BASICALLY?

Kovner: No, I wouldn't say that at all. It says....

Q: THIS SEEM TO BE WHAT THEY ARE AFFIRMING?

Kovner: No. They were suggesting that merely because someone was bound by a contract an interview couldn't be run because of a threat of tortious interference with contractual relations. That wasn't the fact at all. It couldn't be run because they had committed to Wigand that they wouldn't run it until he approved it.

And they were honoring that commitment which they should do. That was the truth. That was not disclosed at the end of November--Wigand's condition that they enter into this complex indemnity, they didn't explain that either.



Q: THE CORPORATE COUNSEL FOR CBS, THE FACT THAT SHE HAD A MATERIAL STAKE IN THE OUTCOME OF THIS MERGER THAT WAS UNDER WAY... HOW COMFORTABLE ARE YOU WITH THAT AS AN ETHICAL QUESTION?

Well, it's not a first amendment question, it's a conflict question. I think that it's a hardy issue. Apparently Mr. Tisch chose to not be involved in anything remotely connected with the tobacco industry because his family has investments in the Lorillard Company. Ms. Kaden didn't choose to recuse herself because she had an interest in the acquisition. I don't think she had an obligation to recuse herself, because she had a duty to the company to give her best advice and she did and it was an area outside of expertise and she went and got a very superb lawyer, one of the finest in the nation, Cam Devore, to evaluate it and I don't think there was anything improper about that.

Whether she should have disclosed to the people at 60 Minutes her stake and sort of said...may have been a good idea. She may well have done that. I don't know that she didn't do that. My problems, as I've said earlier, are less with the legal judgments they were faced with at that very difficult position given the unusual context in which they arose, than with the policy and public relations judgment to permit the 60 Minutes story to go out without the interview on the grounds of a threat of tortious interference without explaining what had happened. That was a profound disservice. I don't think that that judgment of hers, or of her office, was affected by her interest in the acquisition though.

Q: HOW SHOULD CBS HAVE PROCEEDED WITH THE ADVICE THEY GOT FROM ELLEN KADEN?

Kovner: They should have either held the program until Wigand released it. That was one alternative and then they could have broadcast it. And that was, as it turned out, that was going to be within, you know, he testified in Mississippi, he testified in this other state investigation and, I think it was Missouri, they were gonna be able to go with it by December. But if they felt it was so urgent to go with it in November before he released it, then they had a duty to say--we have a terribly significant interview , we're holding it, we will release it, we're holding until the source who will be testifying in a state proceeding will release it because we made a commitment to him when we took the interview that we wouldn't play it until he approved given the threats he's facing. And we're honoring our commitment to our source. That would have been a perfectly respectable, appropriate action...

Journalists do honor their commitments to the sources and they made a commitment to Wigand not to release it.

Q: AND HAD THEY DECIDED ON THE FIRST COURSE OF ACTION, TO HOLD THE PROGRAM UNTIL THE GROUND WAS CLEAR, THERE WAS NOTHING TO STOP THEM FROM CONTINUING TO DEVELOP THE PROGRAM CONTINUING TO TALK TO WIGAND, CONTINUING TO THEIR RESEARCH?

Kovner: Not in my view. I see no reason why they couldn't continue to investigate. That in fact, I would argue they had a duty to continue to investigate.

Q: BECAUSE THE MESSAGE THAT CAME FROM THEIR LEGAL COUNSEL WAS, CUT IT OFF NOW-- WE ARE ON VERY THIN ICE .

Kovner: I have to say that was an overreaction. An extreme overreaction.

Q: HOW MUCH WEIGHT DO YOU GIVE THE LEANING OF A MOCK JURY IN THE ASSESSMENT OF THE PROSPECTIVE REVIEW CASE?

Kovner: Litigants and their counsel will give significant weight in order to determine what an appropriate settlement might be, because it gives people a sort of additional guide as to what the exposure might be, both from the defendant's perspective and what the prospects are in terms of the plaintiff so that they won't you know, overestimate or turn down a reasonable or attractive settlement...

I'm not aware to what extent it's used. It's a costly procedure. People don't turn to it unless the stakes are high. But in major litigation, particularly in tort litigation where the issues are more likely to go to a jury, particularly damages, parties will turn to it. It's not unusual.

Q: IT'S A KIND OF A POLLING DEVICE, A KIND OF A MEASUREMENT OF THE CLIMATE OUT THERE?

Kovner: Yes, it gives you a sort of neutral public view of you know, how serious is this, or did somebody do wrong. Who's credible and who isn't. How they feel about the lawyers and the witnesses, and most especially what the value of the claim is.

Q: I'M TALKING ABOUT THE ABC CASE WHERE THEY TOOK THEIR ISSUES TO MOCK JURIES IN TOBACCO COUNTRY AND PREVAILED IN SPITE OF THE FACT THAT THE CORPORATE DECISION SUBSEQUENTLY WAS TO GET AN OUT OF COURT SETTLEMENT.

Kovner: I wasn't familiar with their use of the mock juries, although I'm not surprised that they did. Mind you they were facing not only the claim of Philip Morris, which was being litigated in the most extremely aggressive manner by Philip Morris' counsel cost him an awful lot of money, but and what was facing trial, I believe in Virginia, and if they won, then they were facing a similar claim from RJ Reynolds pending in North Carolina. So the industry was going to have two bites at that apple in terms of those claims. Nonetheless, the size of the settlement and the language of the apology certainly were sources of concern for journalists everywhere.

Q: AND SORT OF BLED OVER INTO THE PROCESS THAT EVENTUALLY BROKE OUT AT CBS I GATHER?

Kovner: I wouldn't be surprised if CBS counsel gave weight to what had happened in the ABC-Philip Morris matter.

Q: WHEN YOU LOOK AT THE TWO CASES, WHICH ONE WORRIES YOU THE MOST? THE CBS CASE WHERE CBS CLIMBED DOWN IN THE FACE OF THIS TORTIOUS INTERFERENCE SPECTER OR, THE ABC CASE WHERE THEY CLIMBED DOWN FOR NO APPARENT REASON?

Kovner: I'm worried that two major networks, both in the middle of corporate acquisitions, did not handle effectively the explanation of their conduct to the public so that adverse inferences were drawn and fears raised as to the existence or the extent of first amendment protection which does in fact exists. It exists and had they been more candid with the public, I think that the fears that have arisen should not have arisen and it really was troublesome. We're going to face more claims as a result of the manner in which they handled these two highly publicized matters. And the people will be fearful when they need not be fearful and that is a source of concern.

Q: HOW BADLY DID THESE CASES UNDERMINE, THE CONFIDENCE OF THE AMERICAN PEOPLE IN THEIR FIRST AMENDMENT?

Kovner: I hope not very much. CBS I think has redeemed itself a significant part as a result of Mike Wallace's forceful advocacy to get them to run the interview, which they did run and it wasn't that late. It was in January and it was a powerful program and I think vindicated the journalist there. And the other encouraging thing is Brown & Williamson does not come out a winner. Their efforts to intimidate, at least in the Wigand matter, I think have hurt them. They would have been much better advised to save their money, let the program be aired, put out their response rather than go around intimidating the press and making it a page one story throughout the nation. Whoever advised them, I think, advised them very badly.

I'm troubled about the tobacco industry. Obviously their backs are to the wall. It is they who are shouting first amendment protection to defeat the Federal Drug Administration's I think, unconstitutional aspects of the proposed rules regarding tobacco advertising. They want first amendment protection, but they're perfectly willing to trod on first amendment rights of journalists when they... the subject of the coverage. No sympathy whatsoever for the tobacco industry in this area. But I don't think they come out the winner


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