frontlinesmoke in the eye

a talk with lowell bergman

Lowell Bergman is a former producer for CBS's "60 Minutes".

lowell bergman"There's a major difference between 'All The President's Men' and 'The Insider,'" Lowell Bergman has said of the comparison between the 1976 film on Watergate and Hollywood's new version of the events depicted in FRONTLINE'S report, "Smoke in the Eye." "In 'All the President's Men,' the editors and reporters are heroes. That's not the case here."

What is the case, Bergman believes, is that "60 Minutes," one of America's most venerated news programs, made an epic mistake in not airing an exclusive interview with tobacco industry whistleblower Jeffrey Wigand until the substance of Wigand's claims had already been made public by others. Bergman speaks of his "astonishment" and "disillusion," but he stops short of branding it a "betrayal." The same cannot be said of "60 Minutes" correspondent Mike Wallace and executive producer Don Hewitt, who have not hesitated to use the word--and others less kind--when asked about Bergman's own decision to go public with his version of the matter.

For months leading up to the November 5, 1999 release of Hollywood's "The Insider" (in which Bergman is portrayed by Al Pacino), Wallace and Hewitt railed against Bergman as a self-promoting traitor to the news division who began work on his "Hollywood revenge" even before leaving "60 Minutes." They called the film an inaccurate record of events and an unfair characterization of their respective positions on the decision not to air the Wigand interview. In an early review, Frank Rich of the New York Times agreed that "'The Insider' fudges chronology and makes Mr. Pacino's Bergman into a superman that even the real-life prototype finds a bit 'too neat.'" But, Rich continued, as Hollywood history lessons go, "It is no more fictionalized than was 'All the President's Men,' or, for that matter, 'Schindler's List.'" On this last point, Bergman, who was interviewed for FRONTLINE's "Smoke in the Eye" (April, 1996) and co-produced FRONTLINE'S "Inside the Tobacco Deal" (May, 1998), largely agreed: "It's not a documentary," he told Time magazine. "It's more of a historical novel."

Read a chronology of the 60 Minutes decision not to air the tobacco industry expose At the start of a week when the storm over the CBS/Wigand decision once more swirled intensely and the national press largely fixed on the personalities--who was talking to whom; charges and countercharges--FRONTLINE spoke with Bergman. He began by saying how the release of the movie has brought him back into contact with Jeffrey Wigand, who now lives and works in an apartment on the outskirts of Charleston, South Carolina, running "Smoke Free Kids," a foundation he formed to teach children about the dangers of tobacco. Bergman then told FRONTLINE what he feels "Smoke in the Eye" was all about.

Given the numerous television and print stories, and Hollywood's soon-to-be released "Insider," is there anything under-reported about the CBS/Wigand decision?

The original "60 Minutes" story was stopped in mid-stride. It wasn't done. We were still reporting it. Now, that was extremely important to me in terms of the meaning of what was going on. And it's not explained in the movie. That's a little too complicated, I guess, for Hollywood. I tried to keep pushing, but it didn't get in. From a journalism point of view, it's extremely important because, in the cases of ABC/Philip Morris or other related matters, it's usually a question of the story gets on the air and then there's a lawsuit or something happens and that results in whatever is going on. In this case, it was really pre-censorship. This was self-censorship.  There was no lawsuit pending from Brown and Williamson. As far as we knew, there was no communication from Brown and Williamson to CBS about the matter.

Is this what you meant back in mid-November, 1995 when you said to the New York Times that "the rules got changed in the middle" of reporting this story?

Yeah, the rules got changed in the sense that. . . Let's put it this way: There was no rule that said that if someone had a confidentiality agreement you shouldn't try to get them to talk. The rule was that, if what they have to say is newsworthy, then it's fine. And, in fact, the general counsel [Ellen Kaden] said, when asked, Well what does this mean about FBI agents who have confidentiality agreements? Is it illegal for them to talk to us about 6E material, or potentially illegal, if they talk to us about investigative information? Or a CIA guy? Or anybody like that. And her response is, "That's fine, you can do that." So there's no question that it was fair game to use confidential information from the government. But the new rule was: Don't use confidential information if it comes from the inner-workings of a Fortune 500 company, where the source has signed a confidentiality agreement. And don't try to get the person to talk, because that will be seen as "tortious interference" with their contract.

Were you familiar with the concept of "tortious interference"?

The meeting I went to at Black Rock [on September 6, 1995] was the first time anybody ever mentioned the words tortious interference to me. It was explained in more detail at a subsequent meeting with the general counsel.

Today, is "tortious interference" on your mind when reporting a story?

No, no. At the time, I wrote a memo about a week after the final decision came down to kill the story. The memo said, So is this the new rule: that no one in the newsroom is supposed to gather information when somebody has a confidentiality agreement, particularly with a large corporation? And I never really got a formal answer to the question other than, "Oh no no, this is one case. This is a special case." How do you know if it's a special case or not? The reality is that, with the exception of an article in the Wall Street Journal no publication, either legal journal or anything else I've seen has ever taken the notion seriously. In fact, there have been a series of law journal articles that said this was ridiculous. . . It was explained at one point that, in fact, if Wigand had told us information that was untrue -- let's say he fabricated everything he said on camera--there would have been no tortious interference. So the truer the story the greater the damages. I think I said in "Smoke in the Eye," this was a psychedelic experience, you know?

Were you disappointed with the network lawyers?

The problem isn't so much the conduct of the lawyers coming up with warnings or new concepts. The question is what is management's reaction to that? . . . So at the end of the process, when the general counsel delivered her final opinion [not to air the Wigand interview], which was October 2nd of 1995 -- at that point, we had no indication from an executive at CBS that this was the decision. And I called [Eric Ober], the then President of CBS News, the next morning and I said, You never said anything at the meetings. What's the position of the company on this? That's when he said to me, "The corporation would not risk its assets on this story."

How well did Ober and the lawyers know what Wigand had to say?

Initially, when the word came that we had to go meet with the general counsel, I prepared a script that was very rough-- sound bites with sort of rough narration in between--of what the Wigand interview that we had already done might look like as a piece. That was for the meeting on the 12th of September. Then, after that, towards the end of September, as we were awaiting this so-called second opinion from an outside counsel, which we all assumed was going to just confirm what the general counsel said, I prepared a rough assembly on videotape and showed that to Hewitt, Ober, and Wallace. So they knew what we were killing. I didn't want any ambiguities here about what was in the works.

How was the rough cut received?

Hewitt jumped up and down and said, "Pulitzer Prize." In fact, he was prescient: When the Wall Street Journal ran some of the material on its front page, they got the Pulitzer Prize. But they didn't run it until the middle of October, at which point Wigand was free to talk to whomever he wanted to.

The Wall Street Journal piece ran on October 18, 1995--

In that same issue--in the back pages--was a report based on an SEC filing by CBS News Inc. that indicated that Ellen Kaden, the general counsel, was going to get some portion of $8.7 million on the completion of the [CBS merger with Westinghouse]. And then an examination of the actual document revealed that the president of the News Division was to get $1.2 million in stock options that he would have to cash in. . . When you have an attorney giving you advice, it would be nice to know what their financial relationship is to the advice.

Was the merger money necessarily a sinister influence on the Wigand decision?

No, Larry Tisch says he wasn't involved at all. But I'm not an idiot either. In court, there's a difference between hard evidence and circumstantial evidence. There is no hard evidence that the money involved in the merger, in some way or another, made people come up with the idea of tortious interference as a way to stop this story. On the other hand, there is a whole series of circumstances which, I think (a) should have been reported by "60 Minutes" in that November [12th of 1995] broadcast, which is, How much money were people going to make? I mean, in the SEC filing the actual chapter is called "Persons who will profit from this merger" and it lists Kaden and Ober. Now we don't know what other people had--if they weren't corporate officers of some kind, then they don't have to report it. So Hewitt's an employee, for instance, so you don't have to report what he might make. But, it was clearly a lot of money at stake at this time.

The subject of the merger was brought up at my very first meeting at Black Rock. . . We didn't know at the time that Brown and Williamson Tobacco was in the midst of selling $35 million worth of cigarette brands to Lorillard Tobacco, a wholly-owned, privately-owned subsidiary of Loews Corporation owned by the Tisch family. . . But we did know that Jeffrey Wigand was to be interviewed by the Department of Justice as part of a criminal investigation of potential perjury on the part of the seven tobacco CEO's. One of those CEO's was Andrew Tisch, president of Lorillard. . . In the news business, the best way to deal with those kinds of conflicts is to lay them all out on the table.

And that wasn't done.

That wasn't done. And, specifically, what wasn't done was the Monday before the censored version of the story ran, information about the financial interactions here was in the studio introduction of the original piece. And, after a meeting on Monday, it was agreed, apparently by Mike Wallace and Don Hewitt and Eric Ober--after a heated meeting that I was in--that they were going to take it all out.

Was there a moment when you felt a first sense of betrayal, if that's the word for it?

I wouldn't call it betrayal. I would say that it was astonishment on my part. After the September 12th meeting, I thought I had an understanding with Mike Wallace in that meeting that I would be sort of the fact person and he would get up, if you will, and jump up on the table--which he's good at. He's been doing it a lot in the press recently. And he didn't do it. He raised a question about the merger and that was it. And then she [Kaden] denied it and then we went on. And Hewitt didn't jump on the table. . . Here's some guys who are--and Cronkite says this in "Smoke in the Eye"--here's some guys who are in their seventies, have had the most successful careers in the television news business in the history of the United States, they're multi- multi-millionaires. They like to get on TV and say they'll do any story that comes along they think is true. They think the story is true, they think the story is worthwhile, and they're just not doing anything. They're sort of saying, "Oh, we'll wait for the next opinion." Well, it was clear the next opinion was going to be, "Forget it."

Hewitt's now saying that he would have had to have been part of an armed guerrilla group taking over the CBS transmitters to get the piece on the air over the objections of the general counsel and the executives.

That's malarkey. These guys, all they had to do--it may not have been successful, but, to satisfy me, at least--I expected them to raise some hell and maybe threaten to go public. . . From the beginning, Mike made it clear that [he wasn't going to resign over this] and that meant from the beginning that we had no bargaining chip. . . The story did not run here in the end until it was all published basically in the Wall Street Journal. There was never any risk taken. They decided to go with a censored version because they knew that the story was coming out one way or another. "So, let's get ahead of the curve and talk about how we've been censored by the general, you know, the corporation." I told them I wasn't interested in that kind of story. They said, "Okay, Phil Scheffler," meaning the senior producer, "will write the script." He tried. He failed. They came back to me and said, "Okay are you going to do it?" At that point, Wigand was tied up with Scruggs and it looked like he might be testifying. So, I thought, we might actually be able to run the story if he testified. That didn't happen and, on top of that, they pulled out all references to financial, if you will, remuneration for people involved in the decision-making process. That was the last straw for me.

But you didn't resign.

No. My calculation, at the time, became: I could resign, as some of my friends in print suggested, quietly, and walk out the door and forget about the whole thing. I contemplated resigning and going on the front steps and holding a press conference. But the problem there was that Wigand was still my confidential source, if you will. So I could not reveal his name and, by doing something like that, I would probably just get him in more trouble, and not be able to help him. So my compromise position was that I'm going to stick around here as long as I can and use their system to get this story out one way or another. In the back of my mind, in terms of my self-interest, you have to understand that, having been in the business for twenty years, that I know that the producer is expendable, that, if they're going to blame anything on anybody, it's going to be the producer. The correspondent is never wrong. Mike Wallace is making that absolutely clear now, publicly.

Now, Wallace says, basically, it was a "48-hour mistake" that he corrected on his own without the "tutelage" of Lowell Bergman.

If that's what he wants is a 48-hour mistake, then so be it. But it is a mistake. The mistake is not to fight the company when it's doing something that potentially is destroying not just privileges that you use to make a living, but also when the company is cutting somebody loose for the wrong reasons.

While Wallace was having his 48 hours, what were you doing?

Number one, for me, at this moment, is that I had been involved in a process over a year and a half of trying to convince [Wigand] that he should tell his story in public, face on camera, not be a confidential source; that he should get out there because a) the story needed to be told and b) that the story would be more effective to tell it without any anonymity; that he should count on us, at least, for a joint defense in a libel proceeding; and that, by airing the story, once we had vetted it for truth, that that would provide [Wigand] with a certain degree of insulation or protection. He wouldn't be an easy target, an anonymous leaker somewhere that they can go after. And, to my surprise, I'm ordered [by CBS counsel] not to have anymore contact with him. At one point, I was ordered out of his house by the legal department. I was told not to do anything that might indicate to Brown and Williamson that we even knew him or were checking out any of the information that he may have imparted to us. I was not to do anything to help him. So that was a personal crisis for me that I don't think was shared by anybody else. No one else had had that sort of real personal contact with the guy or his family.

Do you still have a relationship with Jeffrey Wigand?

I would probably not be in touch with Wigand today if all of this hadn't happened. There's plenty of people I've dealt with on a single story who I'm friendly with, but I don't have reason to interact with them. But this thing has become a five-year saga.

And now the saga continues with the "Insider" about to be released.

[Wigand and I are] in synch, I think, at this point about the movie. . . As I read ["The Insider"], it's basically about censorship. . . The fact is that network television news is censored, mostly self-censored. And the networks won't do a story about it. That's how bad it is. They'll deny it, when they know it's true.

You say "self-censorhip" and not regular old censorship.

I'm not sure that it's new. It's always difficult with any publication or broadcaster to take on a subject or an institution that is as big as you are, or bigger, that has some commercial link, especially, to your organization. It's always difficult. . . What has been adjudicated and established in the wake of Vietnam and the Civil Rights movement is the ability of the press to basically write or broadcast almost anything about the government. There's very few restrictions in that way. It's not true when we're talking about private power, especially major Fortune 500 corporations, or people worth more than, say, a billion dollars.

What a thing to say. You can take down the President of the United States--

But don't screw with General Electric.

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