Sneak Peek at What's Not in the Memogate Report
Update 12-1: My "hits" are up 100x the last 24 hours, some site(s) must have linked to me. For new visitors, I focused this site on the inside legal problems facing CBS, in particular (a) that an odd Texas felony forgery statute had been triggered [I was the source for the early O'Reilly Factor report about it] and (b) the manipulation of the story and coverup by CBS Legal Department. To catch up, read these seven prior articles by me: One Two Three Four Five Six Seven. Update: Must Read This New Post.
Let BummerDietz tell you a little bit about what the Corporate Legal Department does at a media company, since that is BummerDietz’ business….
When a publication has a Legal Department that acts as a check-and-balance upon journalists, a serious journal results. When a publication has a Legal Department that has no check-and-balance function but instead exists only to insert minor text edits that maintain the thrust of the story but sidestep libel law, you have a yellow rag.I have previously written about the nefarious hand of CBS Legal in the Rathergate mess. Although it makes for better press to focus on Rather and Mapes, the real story here is CBS Legal.
The attorneys at CBS Legal have one primary objective: Do Not Allow Libelous Statements To Be Published. There are many other things they do, but their raison d’etre is to prevent libel.
Frankly, when dealing with public figures, it’s not a tough job, since the standard is so high. The newspaper or broadcast must be shown to have acted with “actual malice.” The injured party has the burden of proof. Since journalists rarely post incriminating memos about their intentions prior to broadcast (“Hey Jenny, watch me nail Bush with this fake story!”), the burden of proof is insurmountable in almost all cases.
With Rathergate, at least 2 experts reported to CBS, in writing, pre-broadcast, that the memos were problematic. CBS Legal was involved with the story, pre-broadcast. Any veteran CBS Legal attorney would look at the prime directive - Do Not Allow Libelous Statements To Be Published – and would react to such rebuttal evidence by (a) killing the story, (b) delaying the story, (c) following up with more sources.
From what we know, though, none of that happened. Why? Did someone overrule CBS Legal (That’s not supposed to happen). Or, had CBS Legal abandoned the primary objective? That is the key question. CBS Legal is (or should be) like the Enron auditors -- how could this have happened?
The lawyers at America Media Inc. (owners of the National Enquirer) are the best in the business. They are experts at avoiding libel exposure for their stories, albeit a high percentage contain errors.
The cutting edge issue is what the media must do with strong rebuttal evidence in their possession. To wit: If a company has concrete information in their possession, and they ignore it, the target has a serious toehold in a libel lawsuit. The target can meet its burden of proof that the journalist acted with “actual malice” by showing the jury that there is no other explanation for why the journalist would publish the story, even though they had the contrary information, except for “malice.”
What must media do with serious, contrary facts or rebuttal that is in their possession prior to publication?
- Can they ignore it? (Generally, no.)
- Can they refuse to open the package that contains the rebuttal evidence? (As in, refuse to have the package brought in from the lobby desk?) (Hot issue.)
- Can they dismiss it by reporting that something like, “The target denies this, citing their claims that X is not telling the truth?” (Hot issue.)
- Can they write the story to give a fair account of the contrary facts? (Yes, or course. The law gives them the benefit of the doubt that they do this, as a matter of practice.)
- Can they abandon the story due to its being fundamentally false? (Yes.)
The attorneys The National Enquirer have perfected a strategy that is being copied by other media, such as CBS Legal. We call it “Head In the Sand.” The publication goes to great lengths to prevent rebuttal facts from coming into its possession, prior to deadline. To a journalist, the possession of rebuttal facts is like holding contraband - possession is punishable by a finding of Actual Malice. So journalists have changed the way they operate, in order to avoid being caught with the hot potato of rebuttal facts. Why? Because the Legal Department might step in and delay or kill the story, if there are any rebuttal facts lying around.
This manifests itself in several media bahaviors:
1. Late Ambush. A “factchecker” will call a target for comment, hours before the print deadline. To a jury, this is supposed to show the media is fair. Since the journalist has spent days, weeks or more building their story, it is impossible for the target to know what the journalist’s story says. Hence, the target typically has no comment.
2. Prevent Incoming Faxes. The journalist (and sometimes, the legal office) goes to great lengths to prevent any contact information – email or fax information – to be made public. They simply do not want any lawyer's letter or other rebuttal material coming into their possession, prior to publication. (Try to find a media “Legal Department” fax or email number on the internet.) This is why an “ombudsman” or “reader’s representative” is such a divisive issue with media. It seriously impinges upon the media’s ability to prevent contrary information to come into their possession, pre-publication.
3. Fake Fact Checking. The journalist does not directly fact check with the target, but instead substitutes with a call to a friendly source who gives some lukewarm support to minor aspects of the story, and such source is quoted anonymously in the story. (“Yes, Mr. X has come to the restaurant on occasion,” as somehow being evidence that Mr. X was there on April 1st and assaulted a waitress in the bathroom).
4. Mischaracterize the Rebuttal. The journalist will mention the rebuttal evidence in the story, but will diminish or mischaracterize the rebuttal evidence. Hence, the libelous story seems to have even more import, because it appears that the journalist has actually spoken to and considered all sources.
5. Claim Deadline. The most nefarious technique (to this lawyer) is for the journalist to use the self-made, artificial excuse of a “deadline’ (as if the story cannot wait until tomorrow) as a way of combining all of the above items, and to say, “OK, we got this package of 50 pages from you, there is no way I can review this before deadline, so just give me your top 3 points.” Hot topic. Can the reporter ignore the package and say that the target (or target’s attorney) “refused to comment?” Or ignore the package and report in a single sentence a watered-down version of the verbal “3 points?” (Good lawyers never take this bait; "The documents speak for themselves.")
Any of the foregoing sound familiar, re: Memogate? Those are the tricks from the playbook of The National Enquirer. But...for 60 Minutes?
With that background, look closely at the upcoming Rathergate Report. My guess is that the public report will NOT address the role of CBS Legal, due to “privilege” concerns. The public report will say that, “Certain changes are being made to standards and practices, to prevent this from happening in the future.” And that, my 23 readers, will be your clue that there is no intention at CBS to tell the real story to the public.
As I have said here before, CBS Legal showed that 60 Minutes is a yellow rag, instead of a serious journal. The original story has a claim that memos were from “personal files.” Instead of acting as a check and balance to what was suspected to be a false set of memos, CBS Legal did not shut down the story, but rather merely inserted the “personal files” phrase to provide a plausible defense against the Texas forgery statutes. 60 Minutes is a yellow rag.