What You Need to Beat Goliath

In Michael Mann's gripping new movie The Insider, the two central characters uphold the truth through acts of corporate disobedience—the moral equivalent of civil disobedience in an age when the threat to freedom so often comes from corporate rather than state power.

Fired as head of research at cigarette-maker Brown & Williamson, Jeffrey Wigand (Russell Crowe) breaks a nondisclosure agreement to tell 60 Minutes about his former employer's deceit and malfeasance. But before the segment is aired, its producer, Lowell Bergman (Al Pacino), finds himself up against everyone else at CBS when the company's lawyers advise killing the interview for fear of a lawsuit from Brown & William son. In the movie's dark twist, Bergman turns out to be in the same position as Wigand: Both are insiders who confront a corporate decision to deny the public vital infor mation, and then choose to go public themselves. Repeating an early scene in which Wigand leaves Brown & Williamson, the last frames of the movie show Bergman walking out of CBS, as if to conclude that truth-telling and life inside the corporation can't go together.

Since it portrays actual events and real people with dramatic license, The Insider raises all sorts of tricky questions about what measure of truth it tells. But setting aside the debate on the film's accuracy about its individual subjects—is it fair to Mike Wallace and Don Hewitt of 60 Minutes? does it give Bergman more credit than he's due? does it leave out inconsistencies in Wigand's behavior?—there is a larger question about what we ought to conclude from both the movie and the events on which it is based.

Like some of the analyses written when the events broke (1995-1996), The Insider invites us to see the story of Wigand and CBS as a parable of the decline of modern journalism. The movie is inevitably being compared with All the President's Men. Both show heroic investigative journalists in hot pursuit of corruption, but instead of The Washington Post courageously standing behind Wood ward and Bern stein, CBS News caves in to outside pressure. The Insider, though on a lesser subject, is actually a better-made movie—more subtle and complex in its character development, and exquisitely photographed. But whereas All the President's Men shows David defeating Goliath, The Insider seems to leave us with the discouraging thought that Goliath rules and David has to quit if he wants to avoid being silenced.

Or is that the moral of the story? It's easy to slip into the usual hand-wringing about the state of the media; commercial pressures continually do put the integrity of journalism at risk. And yet if there's one big story in the past decade in which the public's right to know has, at long last, made notable progress against entrenched commercial interests, it's tobacco. Nothing better illus trates that turnaround than the miserable failure of Brown & Wil liam son in recent years to stifle public knowledge about its history. Rather than confirming a sense of discour agement, the tobacco story suggests how, at least sometimes, Goliath still does get beaten.

little historical perspective is instructive here. For a long time, the tobacco industry enjoyed considerable success in disinforming the public about the dangers of smoking. In 1941 the investigative journalist George Seldes reported in his independent weekly In Fact that there had been a near- total blackout of news about a scien tific study three years earlier by the noted Johns Hopkins epidemiologist Raymond Pearl showing that smokers had markedly reduced life expectancy. During the next several years, Seldes reported on other scientific studies linking tobacco to disease, including cancer, and noted that mainstream magazines and newspapers generally ignored or buried the findings. He conjectured, not unreasonably, that since tobacco was the second biggest source of advertising after the auto industry, the media were letting business interests influence news judgment.

In the 1950s, as scientific research accumulated, findings about tobacco were widely reported, beginning with an article in Reader's Digest in 1952. But even years after the surgeon general's 1965 report on smoking and health, there was evidence that tobacco advertising inhibited the press. In the Columbia Journalism Review in 1978, R.C. Smith reported on a survey of tobacco articles and advertising in major magazines. Among magazines that accepted cigarette advertising, Smith did not find "a single article, in seven years of publication, that could have given readers any clear notion" of the "medical and social" impact of smoking. And he concluded that "advertising revenue can indeed silence the editors of Ameri can magazines."

Another reason the news media may have shied away from aggressive coverage of tobacco is that the industry was not afraid to use litigation to get its way. No tobacco company ever lost or settled a personal injury case. CBS itself paid a judgment of $3 million to Brown & Williamson in the 1980s as a result of a libel judgment for a commentary on its Chicago station alleging that cigarette makers were trying to hook kids.

The past decade has seen an unprecedented outpouring of revelations that have helped to undermine the credibility of the tobacco industry. Far from being representative of recent press treatment of tobacco, the CBS decision to kill the Wigand interview was the proverbial step backward while American society as a whole, including the press, was taking two, three, many steps forward. The reason the CBS decision seemed so outrageous by 1995 is that it violated what had become standard practice in dealing with an industry marked as Public Health Enemy Number 1.

As public opinion has shifted, major institutions, both public and commercial, have become more will ing to take on the tobacco industry. In the spring of 1994, while Jeffrey Wigand was still deciding whether to talk to 60 Minutes, Stanton Glantz, a professor at the Uni ver sity of California, San Francisco Medical School, received 4,000 pages of internal Brown & Williamson documents from an anonymous source (not Wigand). Glantz knew immediately that the documents provided devastating evidence of the company's conduct. Nervous about his ability to protect the documents, he transferred them to the university's library, which began making them available to the public. When Brown & Williamson sued the Uni versity of California in January 1995 on the grounds that the documents were stolen, the university and its lawyers might well have surrendered, saying that the lawsuit would be too costly. But, instead, they chose to fight and succeeded in winning a landmark legal decision that the First Amend ment protected public distribution of the documents. The library soon made them available to everyone on the World Wide Web.

In the 60 Minutes case, Brown & Williamson threatened to sue CBS for "tortious interference" (inducing Wigand to break his nondisclosure agreement), a novel claim in a First Amendment case. CBS had, in fact, offered to indemnify Wigand in the event his former employer sued him. But because the information being divulged was clearly in the public interest, most legal experts believe (and said at the time) that the First Amend ment protected disclosure and that CBS would not have had to pay the $15 billion in damages that Brown & Williamson was rumored to be seeking. CBS's own lawyers, however, said the risk was serious.

Why they reached that conclusion has been hotly debated. Critics immediately seized on certain facts about CBS that, despite the company's denials, seem to explain its decision. As we learn from The Insider, CBS was negotiating to be acquired by Westing house, and a pending lawsuit would have reduced the acquisition price. The movie skips another possible factor: Laurence Tisch, CBS's chairman at the time, was also an owner of Lorillard Tobacco Company, and his son Andrew was Lorillard's president. Indeed, Andrew Tisch was one of the tobacco executives who had sworn before Congress that tobacco wasn't addictive, and Wigand was a witness in the perjury investigation regarding that testimony. By coincidence, Lorillard was also negotiating with Brown & William son to buy six of its brands. Laurence Tisch has said he didn't know about the decision to scuttle the Wigand interview until after it happened. That hardly proves these entanglements weren't taken into account. Surely the lawyers and executives involved in the decision must have appreciated that their boss would be upset if they approved a broadcast that might disrupt two huge business deals and help send his son to jail.

By November 12, 1995, when 60 Minutes aired its tobacco story minus the Wigand interview, The Wall Street Journal had published Wigand's key revelations, though it never identified him as the source, and thanks to Bergman The New York Times had given detailed, front-page coverage to CBS's capitulation. At the end of the 60 Minutes segment, Mike Wallace told the audience that he was "dismayed" by management's decision, and he also criticized his own network on the evening news and Charlie Rose. It was a matter of days before the transcript of the omitted interview appeared in The New York Daily News.

In a genuinely repressive regime, things don't work this way; when the news is suppressed, no one knows it happened. When CBS put its business interests first, other news organs took up the story. As Lawrence Grossman argued in a careful 1996 Columbia Journalism Review analysis of the 60 Minutes affair, the CBS decision and the leaks that accompanied it focused more attention on Brown & William son's conduct than the original broadcast would have. The controversy set off a flood of anti-tobacco news on TV. And now that the Wigand- 60 Minutes story has been made into a major feature film—by Disney, owner of ABC, no less—it seems more dif ficult than ever to interpret this history as an example of capitalism once again quashing the truth. Thanks to a broad social movement that gave courage to critics of the tobacco industry, the press as a whole fulfilled its historic mandate in this case just as it did in Watergate.

Freedom of the press, like every other liberty enshrined in the Bill of Rights, doesn't exist simply by virtue of constitutional guarantees. Even strong legal institutions aren't sufficient to ensure that rights prevail. Rights need private partners. They particularly need partners that have the resources to wage an effective defense. It is nice to think of David preserving our freedom by beating Goliath, but if you're David and you want to beat Goliath, it helps to have another Goliath on your side when you pick up your slingshot. Nonprofit foundations and public television stations can help, but they don't publish daily newspapers or make major motion pictures.

The history of the First Amendment in the past century is typically told as a series of Supreme Court decisions, beginning with the influential dissents of justices Brandeis and Holmes in the period after World War I. But the advance of First Amendment rights also depended on the organizations that brought cases to the Court. If, for example, The New York Times had not possessed the financial and legal resources to fight an Alabama libel judgment that threatened national coverage of the civil rights movement, the Supreme Court might not have made its historic decision in New York Times Co. v. Sullivan, in which the Court for the first time applied the First Amend ment to libel law.

In America today, the threat to freedom of the press comes primarily from corporations that reach for their legal pistols whenever the media get in their way. Brown & Williamson's claim of tortious interference has been one of many new legal strategies that companies have followed to try to limit an inquisitive press. And Brown & Williamson itself hasn't given up: After The Insider opened, it started gathering evidence for a possible libel suit against Disney, a kind of real-life sequel. The mere need to fight such a suit would be devastating to a smaller company; Disney can afford it, and it will almost certainly win.

But to beat the Goliaths, we need the Davids who are willing to fight inside as well as outside the corpor ations: no individual courage, no corporate courage. "Heroes are in short supply these days," Bergman tells Wigand in the movie. Some reviewers, even those who generally like The Insider, can't abide an old-fashioned idealistic hero like Bergman—"too self-righteous," writes Janet Maslin in the Times. But it's been a long time since we had a crusading journalist as a hero on the screen; we ought to allow ourselves the indulgence once in a while. There is a moment in The Insider when one of Jeffrey Wigand's daughters finally sees the quashed CBS interview and looks up at her father with an admiration we have never seen before from his wife or children. The hope of that admira tion is what enables people to do heroic things. You need that, too, to beat Goliath.

Where to Find Out More:

Lawrence Grossman, "Lessons of the 60 Minutes Cave-in," Columbia Journalism Review (January/February 1996)

Plus: Grossman's take on The Insider, also in Columbia Journalism Review (November/December 1999)

For general background on the CBS-Wigand affair, plus a treasury of relevant documents, see the website for "Smoke in the Eye," PBS Frontline documentary

For more about George Seldes and his coverage of tobacco, see "Tell the Truth and Run: George Seldes and the American Press." A Film by Rick Goldsmith.

For up-to-date news about the tobacco issue, see www.tobacco.org.

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