Copyright 2005, Daily Journal

Report on 60 Minutes' controversy slams editors while absolving CBS's lawyers. Should lawyers have pressed harder on documents' authenticity?

(Daily Journal 1/24/05) -- When CBS found its reputation in tatters after its "60 Minutes Wednesday" broadcast accusing President Bush of ducking his military duty imploded, it turned to a team of lawyers to sort out what went wrong.

While noting that the show's two media lawyers helped vet the story, the team's report found that they did their job and asked the right questions.

Although some critics have questioned why the media lawyers got off so easy, saying they erred by not holding the story, others said the CBS inquiry got it right.

The main problem with the story, according to the report released last week, lay with the show's producers, who failed to follow through on demanding answers to the questions that the lawyers had asked.

"We were told by everybody involved in this story at CBS that the lawyers' formal role is to review certain pieces for legal issues, and that's what they did in this situation," said Michael J. Missal, one of seven attorneys from Washington, D.C.'s Kirkpatrick Lockhart Nicholson Graham on the Independent Review Panel.

"We were further told that in situations where lawyers get involved, they may also review [a show] for editorial content and other things," Missal added.

"In this case," he said, "the lawyers asked some of the right questions, but the panel concluded that, given the haste to put the story on the air, there was not adequate follow-through [by the producers] on the answers requested."

The lawyers' job is limited. And nobody wants them running a news operation, observers said.

"The lawyers' job is to look out for legal problems and possible lawsuits," said Peter Scheer, a former newspaper publisher and lawyer, who heads the California First Amendment Coalition in San Francisco.

"I'm not sure that anything about that story posed those risks," Scheer said. "George Bush was never going to sue CBS."

In the controversy following the Sept. 8 broadcast, producer Mary Mapes was fired, and three of the show's staffers were asked to resign.

CBS appointed an independent review panel, headed by former Attorney General Dick Thornburgh and retired Associated Press President and Chief Executive Officer Louis D. Boccardi. Network executives wanted to look into the authentication of documents used to support the story, find out what went wrong and what could be done to keep it from happening again.

One of the panel's recommendations was to create a new position for a standards-and-practices executive, who would review any "60 Minutes Wednesday" episode involving "investigative reporting, confidential sources or the authentication and/or chain of custody of materials received from outside sources" to ensure that proper processes are followed.

"The standards executive should have the authority to delay or veto the segment," the panel stated in its report.

Last week, CBS promoted Linda Mason, a veteran news writer and producer, to fill the new post. The network noted that Mason had handled crisis response before. After the 2000 presidential election, she headed a team that produced a report on mistakes made on election night like calling the results in Florida too early.

The panel made no recommendations concerning the role of media lawyers. But Missal said that the panel's expectation would be that Mason would consult with the show's lawyers "as she deems appropriate."

CBS representatives did not return calls seeking comment.

But other lawyers and media experts said they didn't foresee much change in the role of media lawyers, agreeing with the report that the story's problems were more editorial than legal. Giving lawyers more leeway in the process could muck up the works, they said.

Lawyers are hired to guard against liability, they said, and there was nothing in the "60 Minutes Wednesday" episode to raise a legal red flag.

Scheer, who is the former publisher of The Recorder, a legal newspaper in San Francisco, said he can well understand how lawyers, not familiar with the journalism process, would be worried about nonobjective, impassioned reporters facing deadline pressures and a rush to publish.

"It's a bit like sausage-making," he said of the process. "It doesn't look good up close, but when you have smart, cooperative people getting together, something good comes out of it.

"You wouldn't want lawyers playing a bigger role. They're much less interested in deadlines and would slow everything down terribly. That's just what lawyers do."

But Robert Zelnick, a lawyer and journalism professor who spent 21 years reporting for ABC News, said that, while he has reservations about enlarging the lawyer's role, faced with the CBS situation, he would have been more forceful.

While it is unlikely Bush would ever sue, Zelnick, chair of Boston University's journalism department, said that it's possible the airing of the documents in question might meet the libel standards of malice and reckless disregard for the truth as set forth in New York Times v. Sullivan, 376, U.S. 254 (1964).

"I think by overseeing legal vulnerability - libel-slander, privacy rights, trespass, fraud, national security concerns - there are many different kinds of areas where house counsel can play a constructive role in improving the product and keeping irresponsible news-gathering material off the air," he said.

But, he added, "There's a fine line between legal involvement and editorial involvement. It needs a careful balance. Carefully run networks can accommodate both types of situations.

"If I had been house counsel in that situation, I would have told the producers that if these documents have not been authenticated and it turns out they are false or not proven accurate ... then putting that information on the air might meet the New York Times v. Sullivan libel standard.

"I think the CBS lawyers were too squeamish."

Network leaders need to define what types of situations lawyers need to get involved in, and then make sure those edicts are enforced and not just window-dressing, Zelnick said.

Jane Kirtley, a lawyer and media ethics professor at the University of Minnesota, agreed.

"The news organization has got to make a decision about the role it wants lawyers to play," she said. "It seems to me that the role of a media lawyer is not to be a second editor ... [but] vetting for potential libel."

Kirtley said she agrees with the report that the problems had more to do with fundamental journalistic integrity than legal liability.

Unlike lawyers, journalists are not bound by rigorous evidence or court rules, she said, nor should they be.

"Part of what makes our system strong is placing [journalists] outside the judicial system in making determinations of what to publish," she said. "I would be concerned if, before publishing a story, you had to vet the piece on the standard of the rules of evidence."

Kirtley added, however, that she was concerned that the panel reviewing the CBS problems was made up of lawyers. That tends to send a message that the show's producers did something illegal, she said.

By contrast, she noted, the investigation of Jack Kelley, the USA Today correspondent accused of faking international stories, was conducted by a team of journalists, which, she said, is the way an ethical newsgathering query should be done.

"Lawyers look at things differently," she said. "They are subjected to a canon of ethics. Journalists are not that way. Reasonable journalists can judge what's right."

But David Kohler, former CNN vice president and general counsel, who is now a professor at Southwestern University School of Law, believes lawyers can do just as good a job, if not better, in investigating editorial problems.

While at CNN, Kohler collaborated with First Amendment lawyer Floyd Abrams in investigating and producing a report on the so-called "Tailwind" broadcast, which resulted in that network retracting its story about the U.S. military using nerve gas on defectors during the Vietnam War.

Like the Bush story, the Tailwind incident faulted journalists, not lawyers.

"I think lawyers get involved [in reviewing possible editorial errors or misjudgments] because they're just good at doing an investigation," Kohler said.

"I don't tend to read things as legal wrongdoing just because a report was done by lawyers," he said. "I think it's fairly well accepted that in a variety of disciplines lawyers are asked to do these things."

He noted that the "60 Minutes" probe was headed by a veteran journalist, retired AP executive Lou Boccardi, along with Thornburgh.

"To some extent, you have to ask: 'What is the purpose of doing an investigation? Are we standing behind the story? How should we do it in the future?'" he said.

"In Tailwind, it was, 'Do we stand by the story?' At CBS, it was two things: Is the story solid, and what went wrong and how can we do it differently in the future?"

By Susan McRae