An Uphill Battle: Our Lawsuit Against Fox

by Jane Akre

Going to court against a powerful conglomerate like the Fox network is a daunting experience, and Fox knows how to intimidate people. Prior to our dismissal, Dave Boylan had flaunted the company's wealth in an attempt to make us back down. "We paid three billion for these stations," he told us on one occasion. "We'll tell you what the news is. The news is what we say it is!"

After Fox local counsel Patricia Anderson lost two major efforts to have the suit derailed, the network apparently decided it needed bigger, smarter, meaner lawyers. They turned to William McDaniels and the Washington firm of Williams and Connolly, the same firm that Bill Clinton used to help him through Whitewater, Monica Lewinski, and his famous redefinition of the word "is." Six weeks before the start of the trial, Williams and Connolly camped out on the top two floors of the Hyatt Hotel in downtown Tampa. Using more than a dozen lawyers and some of the top firms around the country to help with various pre-trial chores, Fox staff lawyers flew back and forth between Los Angeles and Tampa regularly.

Had it not been for the work of our two competent labor attorneys, we would have never been successful. Tom Johnson and John Chamblee are a couple of labor lawyers who work out of an historic house in downtown Tampa. Ultimately, they fought off one motion to dismiss then a summary judgement motion. The second motion to dismiss, slickly crafted by Williams and Connolly, was nine pounds of color coded and tabulated legal language which was very slick and no doubt very expensive. Chamblee fired back and we survived their third effort to get the case kicked.

Crazy Like a Fox

The Fox legal strategy was woven tightly from day one and helped by a well-coordinated team effort. They claimed that we had turned our backs on the story and were using the whistleblower claim as a "tactic." We missed deadlines, they said, and had told managers and lawyers we were "going to get Monsanto." They also claimed that we became convinced that rBGH milk causes cancer, that we became advocates instead of objective reporters of the controversy.

None of that was true. Our story did bring forth information that had been suppressed for far too long: that a spin-off hormone in the altered milk has been linked to tumor proliferation; that consumers did not have the benefit of labeling at the grocery store shelf because Monsanto had sued two small dairies to block it; and that the FDA's Center for Veterinary Medicine, which reviewed the drug, did not do long-term human toxicity tests. The cancer questions to this day remain unanswered. The human effects are, in essence, being tested on consumers in the marketplace.

The Fox effort, though united, was not flawless. Fox news vice president Phil Metlin told the six-person jury that if he ever learned a news organization was trying to eliminate risk by using a threatening letter as a "road map" to craft a story, such news would "make me want to throw up." But just days later, on the stand, a local attorney for Fox admitted he did just that, using Monsanto directives to help craft the rBGH story. Metlin actually turned white. He also didn't score any points with his bosses when he admitted that he found no errors in our reporting of the rBGH story, and he saw no reason why our final version of the story could not be aired.

Dave Boylan had to be flown into town for his testimony. On the eve of the trial, Fox rewarded him with a promotion to general manager of the Fox-owned station in Los Angeles. The man who had told us "we paid three billion for these stations, we'll tell you what the news is," lost his bravado on the stand, shooting quick, nervous smiles at the jurors while checking in with the defense team after every answer.

During our cross-examination of Boylan, it helped that Steve knew exactly what had transpired during 1997. Earlier in the trial, it had been estimated that lost revenue in advertising from Monsanto ads for Roundup or Nutrasweet could have cost the station about $50,000. Fox bragged that $50,000 was nothing for an organization of its size, but Steve's relentless interrogation of Boylan showed that the actual cost of going up against Monsanto could have been much higher.

"You testified Fox owns 23 stations?" Steve asked.

"Yes," Boylan answered.

"Could Monsanto pull advertising off all 23?"

"Yes."

"And the Fox News Channel?"

"Yes."

"And the Sky Channel in Europe?"

"Yes."

"It could extend beyond $50,000?"

"It could," Boylan admitted.

Thump, Thump

Fox attorney Bill McDaniels earned the nickname "Thumper" from our team because he made an audible noise with his foot whenever he got nervous. There was a lot of thumping during the presentation of our case, particularly when Ralph Nader took time from his presidential campaign to serve as an expert witness. Fox had tried unsuccessfully, through objections, to have Nader eliminated as a witness.

Nader told jurors what the FCC has repeatedly said, that it is "a most heinous act" to use the public's airwaves to slant, distort and falsify the news. "A reporter has a legal duty to act in accordance with the Communications Act of 1934 and in addition to their professional responsibility to be accurate, not to be used as an instrument of deception to the audience," Nader said.

Walter Cronkite

McDaniels also objected vehemently to Walter Cronkite's inclusion as an expert on our side. The Fox counsel said, "Mr. Cronkite is not an expert in the pre-broadcast review of a story." I couldn't believe my ears. For thirty years Cronkite was the managing editor of the CBS Evening News. During Cronkite's deposition, McDaniels had asked the 83-year-old anchorman whether he was a lawyer and suggested to Cronkite that he couldn't be an expert in the pre-broadcast review of a story unless he was an attorney.

In his deposition, Cronkite said that an ethical journalist should resist directives that would result in a false or slanted story being broadcast. "He should not go a microinch towards that sort of thing. That is a violation of every principle of good journalism," Cronkite said.

The Ruling

The jury awarded me with $425,000 but gave nothing to Steve, who had been forced to act as his own attorney. Steve repeatedly showed dogged determination in questioning many of the witnesses and getting them to admit some of the most damaging things that ultimately undermined the Fox defense. In the end, we suspect Steve received no award because of what seems to be an erroneous instruction from the judge to the jury. The jurors were told, incorrectly we believe, that in order to find for each of us, they must determine there was no other reason each of us was fired other than the fact we resisted orders to lie on the air and threatened to blow the whistle to the FCC. In any event, we view the verdict as a win for both of us. Our trial was never about money. It was about a reporter's duty to resist and blow the whistle loud and strong when pressured to lie and distort the news over the public airwaves.

Fox immediately announced that it would appeal. On October 12 and again on November 3, the network argued to the judge that he should vacate the jury's verdict. During the trial itself, McDaniels had claimed that Fox merely wanted "to get our good name back" and repair the damage to its credibility which we had inflicted by telling our story on our website and speaking to groups around the world. During the Motion to Vacate, however, McDaniels seemed to toss the network's credibility in the garbage by making an argument that any legitimate news organization would be embarrassed to voice. "There is no law, rule or regulation against slanting the news," he told the judge.

The judge denied Fox's Motion to Vacate, but years of appeals lie ahead. Every indication we have received suggests that the network plans to continue its efforts to wear us down with time-consuming, tedious and expensive legal maneuvers. They have the financial wherewithal to do this, whereas we have been out of work for three years with no immediate job offers on the horizon. Somehow we will have to find a way to house and feed ourselves and our daughter while simultaneously continuing to wage a full-time battle against a media giant.

Fox will appeal first to the 2nd District Court of Appeals, then the Florida Supreme Court and eventually the U.S. Supreme Court, if it is willing to hear the case. All the while, we won't see a cent of our winnings.

And despite our victory, it is possible that Fox's army of lawyers will eventually succeed in their effort to overturn the verdict on some legal technicality. Frankly, our struggle is still a hardship shouldered almost entirely by our single family. Put that up against the $600-an-hour Williams and Connolly lawyers who fly first class, stay in luxury hotels, and have legions of legal minions to research and churn out unending briefs for us to answer. Alas, friends, this is the way the system works.