FRONTLINE Show #1413

Air Date: April 2, 1996

Smoke in the Eye

ANNOUNCER: Tonight on FRONTLINE:

MIKE WALLACE, CBS News: [""60 Minutes""] Thousands of documents from inside the tobacco industry have surfaced_

ANNOUNCER: What really happened when "60 Minutes" took on the tobacco industry? Did CBS spike its own journalists?

MIKE WALLACE: [""60 Minutes""] CBS could be faced with a multi-billion-dollar lawsuit_

ANNOUNCER: Get the story you didn't see.

MIKE WALLACE: [""60 Minutes""] _and they have used the court to intimidate the media and_

ANNOUNCER: Tonight, correspondent Daniel Schorr tells the inside story, "Smoke in the Eye," on FRONTLINE.

DANIEL SCHORR, FRONTLINE Correspondent: Just before daybreak in Louisville, Kentucky, a pair of former Secret Service agents begin what has become a daily routine, carefully sweeping their client's vehicle for booby traps.

JEFFREY WIGAND: It's a different way of living. When you have somebody every morning goes out and checks and starts my car, you know, checks your mail, opens your mail, makes sure that the mail you're getting is safe, that somebody's not trying to do something violent to you. He follows me to make sure I'm not followed, make sure that people can't physically assault me. Threats to scare me to death_ I mean, they're intimidating.

DANIEL SCHORR: For the past four months, bodyguards have been escorting him. The FBI is investigating death threats. It's the kind of security you might expect for a statesman or even for the wealthy business executive he once was.

His name is Dr. Jeffrey Wigand, high school teacher. He was once a vice president for scientific research at the Brown & Williamson Tobacco Company. Since he was fired in March, 1993, the company has invoked his confidentiality agreement, trying to keep him quiet.

JEFFREY WIGAND: People who know me know I'm very ethical. They also know I'm_ I play pretty hardball. I don't stand for much that really goes outside the boundaries of legality. And I saw too much of that, to where it bothers my conscience.

DANIEL SCHORR: In August, 1995, he decided to clear his conscience and tell CBS's "60 Minutes" about Brown & Williamson.

JEFFREY WIGAND: [""60 Minutes""] I was paid well. It was comfortable.

DANIEL SCHORR: He spoke of his life as a tobacco executive with correspondent Mike Wallace.

MIKE WALLACE, CBS News: [""60 Minutes""] You were happy to take down the 300,000 bucks a year.

JEFFREY WIGAND: I essentially, yeah, took the money. I did my job.

DANIEL SCHORR: For "60 Minutes" producer Lowell Bergman, that interview was the product of 18 months of work slowly winning the confidence of Wigand, the highest-ranking tobacco insider ever to speak out.

LOWELL BERGMAN, Producer, ""60 Minutes"": The real thing that we were doing here was presenting a voice from inside the industry, which miraculously had been able to maintain kind of an almost rigid discipline amongst its former executives and current executives.

DANIEL SCHORR: And the voice was saying?

LOWELL BERGMAN: "It's addictive. We know that. That's how we talk about it." The voice was saying, "It's a health problem. In fact, it's a bigger health problem than people really realize and we've known about it for years and that's how we talk about it inside."

JEFFREY WIGAND: [""60 Minutes""] Their representation, clearly_ at least within Brown & Williamson's representation, clearly misstated what they commonly knew as language within the company, that we're a nicotine delivery business.

MIKE WALLACE: And that's what cigarettes are for.

JEFFREY WIGAND: Most certainly. It's a delivery device for nicotine.

MIKE WALLACE: A delivery device for nicotine. Put it in your mouth, light it up and you're going to get your fix.

JEFFREY WIGAND: You'll get your fix.

DANIEL SCHORR: But when the story finally ran, Dr. Wigand wasn't in it.

MIKE WALLACE: [""60 Minutes""] We learned of a tobacco insider who could tell us whether or not the tobacco industry has been leveling to the public, but we cannot broadcast what critical information about tobacco, addiction and public health he might be able to offer. Why? Because he had to sign a confidentiality agreement with the tobacco company he worked for.

DANIEL SCHORR: Mike Wallace was forced to admit he was gagging his own whistle-blower on orders.

MIKE WALLACE: [""60 Minutes""] Is your confidentiality agreement with [deleted] still in force?

JEFFREY WIGAND: Yes, it is.

MIKE WALLACE: So that what are they going to do, sue you for making this appearance?

JEFFREY WIGAND: I would bet on it.

DANIEL SCHORR: Wallace would later admit he had never encountered anything quite like this.

MIKE WALLACE: Never before. Never before. From time to time, corporations will make their displeasure known to the honchos at CBS News, but we're always protected from it. In this particular case, it was the CBS lawyers who told us that were we to go ahead, there was a good possibility that the Brown & Williamson Tobacco corporation would sue and sue for perhaps $10 billion, $15 billion.

WALTER CRONKITE, former CBS News Anchor: It seems to me that it sent a terrible message out to all broadcasters across the nation, perhaps around the world, because here is "60 Minutes", a top-10 program, the_ the top program CBS has had on the air for_

DANIEL SCHORR: The most successful_

WALTER CRONKITE: _almost 20 years_

DANIEL SCHORR: _news program ever.

WALTER CRONKITE: Most successful news program and most successful program, I mean, of everything, a huge money-maker for the company. And they're_ and the management of "60 Minutes" has the power there, quite clearly, to say, "I'm sorry. We're doing this because we must do it. This is a journalistic imperative. We have this story and we're going with it. We've got to take whatever the legal chances are on it." Well, they didn't. They felt it was necessary to buckle under the legal pressures and that must send a message to every station across the country where they might have any ambitions to do investigative reporting, "Hey, look, if "60 Minutes" can't stand the pressure, then none of us ought to get in the kitchen at all." I mean, it's just_ it's just a hopeless cause.

DANIEL SCHORR: Veterans of another era at CBS see Dr. Jeffrey Wigand's experience with "60 Minutes" as a cautionary tale of big media and big business. The issue is the power of a beleaguered industry _ in this case, cigarettes _ to influence what you see on television and especially what you don't see. The issue is also the freedom of television journalism operating under pressure of expanding media conglomerates and what happens when the public interest runs afoul of a business interest.

In the case of "60 Minutes", CBS was not the first network to face the cigarette makers' end run.

FORREST SAWYER, ABC News: ["day1one," February 28, 1994] Tonight, a Day One investigation that took the government by surprise. There's something tobacco companies don't want you to know.

CLIFF DOUGLAS: The industry manipulates nicotine, takes it out, puts it back in, uses it as if it were sugar being put in candy.

DANIEL SCHORR: In February and March, 1994, the ABC News program day1one accused the tobacco industry of manipulating nicotine in cigarettes to cause addiction. They had their own whistle-blower.

WHISTLE BLOWER: ["day1one"] They put nicotine, in the form of tobacco extract, into a product to keep the consumer happy.

JOHN MARTIN, ABC News: They're fortifying the product with nicotine. Is that correct?

WHISTLE BLOWER: The waste filler_ yes, they are.

PHILIP HILTS, New York Times: The reason why the day1one piece was important was because the FDA, at this time, had its own investigation going and they had turned and focused on nicotine. "Is this a drug? Because if it is a drug, we can regulate it." The government has a right to regulate it. It says so in the law.

DANIEL SCHORR: For reporters like Philip Hilts of The New York Times, this was a major break in the tobacco story, supporting the new FDA proposal to regulate nicotine as a drug.

PHILIP HILTS: Then on one weekend, both of them came out, a letter from the FDA saying we could regulate this, and a piece on ABC saying, "This is the center of the tobacco business. They're manipulating nicotine." So it was crucial. It was the first big story of this two-year run of stories.

DANIEL SCHORR: The day1one revelations also caught the eye of a lawyer in Charleston, South Carolina. Ron Motley is working on five major lawsuits against the tobacco industry, all seeking damages for tobacco-related health problems. day1one provided him with some fresh ammunition.

RON MOTLEY, Attorney: They brought forth a lot of information that was otherwise unavailable and opened some doors for the lawyers to pursue. It was a_ and_ and the_ like almost a cartography or a mapping of_ of information that we could pursue and we have pursued.

Rep. HENRY WAXMAN, (D), CA: I'd like you to rise and those who will be testifying today_

DANIEL SCHORR: Five weeks after the day1one report, seven top tobacco executives were summoned before a Congressional subcommittee.

Rep. HENRY WAXMAN: [April 14, 1994] Would you raise your right hand? Do you swear that the testimony you are about to give_

DANIEL SCHORR: Each was asked under oath about a key assertion of the Day One story.

Rep. RON WYDEN, (D), OR: Please consider yourself to be under oath. Yes or no. Do you believe nicotine is not addictive?

WILLIAM CAMPBELL, Pres. and CEO, Philip Morris: I believe nicotine is not addictive, yes.

Rep. RON WYDEN: Mr. Johnston?

JAMES W. JOHNSTON, Chairman and CEO, RJR Tobacco Company: Congressman, cigarettes and nicotine clearly do not meet the classic definitions of addiction. There is_

Rep. RON WYDEN: All right. We'll take_

JAMES JOHNSTON: _no intoxication_

Rep. RON WYDEN: _take that as a "no."

JOSEPH TADDEO, U.S. Tobacco Company: I don't believe that nicotine or our products are addictive.

Rep. RON WYDEN: All right.

ANDREW TISCH, Lorillard: I believe nicotine is not addictive.

DANIEL SCHORR: The company officials swore up and down the line that nicotine was not addictive. And under pressure, their denials became even more emphatic.

DONALD S. JOHNSTON, Pres. and CEO, American Tobacco Company: The American Tobacco Company does not spike its cigarettes with nicotine.

WILLIAM CAMPBELL: Philip Morris does not add nicotine to our cigarettes.

DANIEL SCHORR: But they had seized on one specific claim made by day1one.

JOHN MARTIN: ["day1one"] Why are you artificially spiking your cigarettes with nicotine?

TOBACCO COMPANY EXECUTIVE: We are not in any way doing that.

DANIEL SCHORR: That specific accusation would be used against ABC by the tobacco giant Philip Morris.

PHILIP MORRIS SPOKESMAN: [March 24, 1994] We sent a statement over to ABC making it very clear that we do not spike our cigarettes.

DANIEL SCHORR: And it launched a $10 billion libel suit against the network.

REPORTER: The suit charges ABC with willful and reckless disregard of the facts when day1one and other ABC News programs_

DANIEL SCHORR: Even as ABC prepared to fight the Philip Morris suit, its journalists suddenly found themselves with a new scoop about another tobacco company.

CLIFF DOUGLAS: Following the nicotine manipulation story, day1one started receiving other information.

DANIEL SCHORR: Cliff Douglas, a lawyer and anti-tobacco activist, had been interviewed in the day1one reports and he continued to be a major source for the ABC journalists.

CLIFF DOUGLAS: Well, the reporters saw this and they knew that they had something special. They took this information, which they had obtained only a couple of weeks after Philip Morris had filed suit against ABC, to their in-house lawyers to say, "Look, we've got this incredible information. We want to start reporting on this." And to their surprise, the_ ABC's in-house lawyer said, "No can do."

DANIEL SCHORR: The leaked documents came from the archives of the Brown & Williamson Tobacco Company.

PHILIP HILTS: These documents are historic, in the sense that they probably are the single most important pieces of paper in the history of tobacco versus public health. The documents are things from their internal files, memos from one executive to another, papers from their research labs, from labs that they bought things from, and all together, there are thousands of pages of these things. They talk pretty openly about what they think about nicotine, what they think about addiction, what they think about the hazards of cigarettes, and so on, in a way that we've never heard before.

CLIFF DOUGLAS: And when this showed up and was brought to the attention of ABC's lawyers, they freaked out. They_ they seized not only the original, but also the copy of all of these documents from their reporters. They seized the reporters' hard drives from their computers. And they prohibited them from dealing with the story.

DANIEL SCHORR: Walt Bogdanich, a Pulitzer Prize-winning journalist, was the first to get the Brown & Williamson documents. A producer for ABC, he had done much of the work on the original day1one tobacco stories.

INTERVIEWER: Is it true that ABC had the Brown & Williamson documents a way ahead of everybody else and chose under, you know, some sort of management decision, not to run them? Is_ is that correct?

WALT BOGDANICH: Well, there's a lot I'd like to say about that topic. Unfortunately, I can't. My company has taken the position that no one is to speak about this and since I work for the company, I've got to respect that.

DANIEL SCHORR: ABC News turned down our requests to explain why it had stopped its journalists from reporting on the Brown & Williamson documents. We've been told that ABC lawyers had said that publication of the documents was prohibited by a Kentucky court injunction. Finally, ABC News Executive Vice President Paul Friedman reluctantly agreed to talk to us.

INTERVIEWER: You had what in retrospect was potentially one of the biggest scoops of the year, maybe longer, major_ of major importance to the health of people_ Americans. Why_ why didn't you use it?

PAUL FRIEDMAN, Executive Vice President, ABC News: Well, first, we knew that we weren't the only ones pursuing these or possibly in possession of this material, so it wasn't as if we were blanking out the world from having it. In all of these cases, there is a dialogue between the journalists and the lawyers. The lawyers felt very strongly that there were legal liabilities. We argued as strongly as we could that we wanted to use the material. In the final analysis, they argued more strongly and we decided to take their advice.

DANIEL SCHORR: The lawyers were most emphatic. They reportedly told the ABC journalists "No news organization will run these documents. None."

INTERVIEWER: But what was it about this material that was so sensitive that would_ it would invoke the unusual measures where lawyers tell journalists to surrender notes, to surrender computer disks, to delete material from computers and just to stay away from this subject, stay away from even alternate sources of the materials?

PAUL FRIEDMAN: I don't accept your question. I don't accept the fact that all those things happened_

INTERVIEWER: They didn't happen?

PAUL FRIEDMAN: _as you state them. I don't know, but I don't accept that they are the case. And it wasn't the nature of the information, as much as the source of the information and the fact that there were court proceedings under way.

DANIEL SCHORR: But there was also journalism under way in the newsroom of The New York Times. In early May, while ABC News executives were still citing legal taboos, the Times. started publishing detailed stories from copies it had obtained of some of the Brown & Williamson documents.

PHILIP HILTS: There were virtually no legal concerns at the Times. When you do a story like this out of documents, you do have to give them to the lawyers. But, you know, I mean, go over the story with the lawyers and they say, "Okay, this is this and this is that." But it wasn't a big deal. I mean, they said almost nothing. The story was solid. It had the documents. So in the beginning, it just wasn't a problem. In fact, all the way along, the lawyers were_ at the Times. were very supportive. They really wanted to see the stories in the paper.

DANIEL SCHORR: The Times. owned the story by the time ABC got around to reporting a week later. At ABC, that Kentucky court injunction no longer seemed to matter and the legal battle over the papers was about to move to a most unlikely arena.

May 12, 1994_ 4,000 pages of the Brown & Williamson material unexpectedly arrived at the University of California in San Francisco.

STANTON GLANTZ, Professor, University of California, San Francisco: When these documents arrived on my doorstep, the thing that sucked me into them was not their potential political or legal import. It was the documents as history, the documents as science. I mean, it was just an unbelievable find, as a professor. It would be like an archeologist finding, you know, a new tomb in_ in Egypt or something.

DANIEL SCHORR: Professor Glantz began to make his find available to researchers through the university library. When Brown & Williamson found out, it claimed the documents had been stolen and sued for their return.

Prof. STANTON GLANTZ: I have to say there were periods when Brown & Williamson came in and started threatening the library and it was obvious_ and threatening to sue the university, I figured this is when the rubber hits the road. And I remember being called down to a meeting with people from the general counsel's office, Chris Patti, who_ and_ and others. And I remember riding down the elevator, thinking, "This_ this is time to walk the plank," you know? "This_ my little adventure is going to hit_ hit a wall." And that's not at all what I was told. What I was told was, "This is what the University of California is for. The university is here to bring the truth to people, to write about things, to do scholarly research and will defend you." And they did, and they did spectacularly well.

DANIEL SCHORR: University attorney Chris Patti argued, more boldly than ABC, that the university had the right and the obligation to disseminate the documents.

CHRIS PATTI: [California Superior Court] _claim that the documents are privileged and they simply haven't demonstrated it and I think that should_ I think that should end the inquiry on its own.

We tried to argue that because we were publishing these documents eventually over the World Wide Web, that was our intention, that we were like a newspaper and tried to analogize the university's position to a newspaper's position. So I would have thought that a_ that a newspaper or any other media outlet would have the same arguments that we would have had in our case.

DANIEL SCHORR: The California judge agreed with the university and soon the library was scanning the 4,000 pages of Brown & Williamson documents onto its World Wide Web site. Now they could be downloaded into computers around the world.

INTERVIEWER: The New York Times, University of California in San Francisco_ they both took the position, and I believe the university argued it, that publication of this material was clearly covered by the 1st Amendment of the Constitution, that this was a matter of grave public significance. I have to ask why ABC News didn't take that same position.

PAUL FRIEDMAN: Lawyers disagree on all these issues. We got different advice. We accepted that advice.

INTERVIEWER: Looking back on it, can you say that you fought those lawyers with a sufficient amount of enthusiasm?

PAUL FRIEDMAN: Strikes me as a "Do you beat your wife" question. I think we did make the case as strongly as we could.

DANIEL SCHORR: Meanwhile, ABC was marshalling its legal forces to contest the $10 billion libel suit that Philip Morris had filed over the original day1one reports about the manipulation of nicotine content.

In Charleston, Ron Motley, veteran of many legal battles with the tobacco industry, felt confident that ABC was building a strong difference.

RON MOTLEY: Given the knowledge I now have from the various sources that we've interviewed and the documents we have obtained, there's no basis for them apologizing about anything they said about Philip Morris on that T.V. program.

DANIEL SCHORR: But ABC was worried about trying the case before a judge and jury in Richmond, Virginia, where tobacco means jobs, so they came to test their case here in Raleigh, North Carolina, a tobacco town like Richmond. Two mock juries were assembled to hear the arguments for Philip Morris and for ABC and the proceedings were videotaped.

1st MOCK TRIAL JUROR: They don't deny that there was an edit. All they did was reword it. But_ and everything that they said is all it was to me, but what I thought, it was just turned around and reworded, but it did not deny that this_ this did not take place.

DANIEL SCHORR: The results were encouraging. Juror Clinton Stroman:

CLINTON STROMAN: I think_ well, we had 14 people and 3 people sided for the tobacco company and the rest sided with day1one.

2nd MOCK TRIAL JUROR: Why were they sneaking around doing this? Well, sneaking around doing that is what they're supposed to do_ they're supposed to do for us.

DANIEL SCHORR: Juror Carlos Ector:

CARLOS ECTOR: Most of the people voted for ABC. Even some of the people were die-hard smokers, they said even though they smoked, they still believed that what the tobacco industry was doing was wrong. They were not going to stop smoking, but they still believed they were wrong.

DANIEL SCHORR: After 16 months of preparation, ABC's lawyers moved to dismiss the case, claiming that documents in their possession _ quote _ "eliminated any factual dispute as to whether Philip Morris adds significant amounts of extraneous nicotine during the production of reconstituted tobacco. It does."

But still preparing for trial, ABC attorneys asked the former surgeon general, Dr. C. Everett Koop, to be their lead-off witness. Their letter said, "We are as confident of victory as any prudent trial lawyers should be."

Then, just six days later, a bombshell.

DIANE SAWYER, ABC News: ["World News Tonight," August 21, 1995] The $10 billion lawsuit filed against ABC News by Philip Morris and R.J. Reynolds was settled this evening with a statement. ABC News agrees that we should not have reported that Philip Morris and Reynolds add significant amounts of nicotine from outside sources. That was a mistake that was not deliberate on the part of ABC, but for which we accept responsibility and which requires correction. We apologize to our audience, Philip Morris and Reynolds.

1st REPORTER: As apologies from news divisions go, this was a stunner.

2nd REPORTER: [NBC News Report] Today the tobacco giants gloated in ABC's surrender, gleefully reprinting the company's apology in full-page ads in several major newspapers.

INTERVIEWER: In view of the fact that you had the former surgeon general of the United States in your corner, there had been mock jury trials which upheld the network position, how do we account for the_ the willingness to_ to_ to sort of back down at a time when you seemed to have all the cards in your hand?

PAUL FRIEDMAN: You've used the words "backed down." I don't_

INTERVIEWER: And I use the words_

PAUL FRIEDMAN: _accept them.

INTERVIEWER: Well_

PAUL FRIEDMAN: I don't accept them. It's the policy of ABC News to apologize when we make a mistake. We made a mistake. We also said that the principal focus of that piece was to talk about whether cigarette companies control the amount of nicotine in the cigarettes to keep people smoking and we have not backed away from that central focus or from the people who did the work.

DANIEL SCHORR: But the advertising campaign by Philip Morris made ABC's limited apology look like its total victory.

Theodore J. Markow, the trial judge, told FRONTLINE he was surprised by the unexpected settlement of the long and hard-fought case.

RON MOTLEY: The reason they settled the case, as far as I'm concerned, is very simple. It's clear as the big nose on my face. They_ they had a concern about the jury, had a concern about the judge, but they thought they would prevail eventually, four or five years down the line, in the U.S. Supreme Court. That was a factor, but the overriding factor was the immediacy of the takeover of ABC by Disney.

ABC ANOUNCER: From ABC this is "World News Tonight" with Peter Jennings_

NBC REPORTER: [July 31, 1995] It's a merger of giants. Michael Eisner, head of Disney, on the left and Thomas Murphy, head of Capitol Cities/ABC.

DANIEL SCHORR: Just three weeks before the settlement, ABC and Disney had announced their $19 billion merger.

NBC REPORTER: Cap Cities chairman, Thomas Murphy, made $25 million.

DANIEL SCHORR: That day, Murphy was asked if the still-pending $10 billion lawsuit would affect the merger. He reportedly said it would be "taken care of and resolved." Three weeks later, ABC settled.

INTERVIEWER: There is a clear public perception that there was a connection between what was happening in the bigger corporate ownership picture and what happened on the ground in the decision on the particular story.

PAUL FRIEDMAN: I can't let you get by with "there is a clear public perception" that there was a linkage between corporate mergers and editorial policy. I see no evidence of that. If you have some, I'd love to see it. As to the second part of the question, which is "Was there?" To my knowledge, and I was in on almost every meeting there was about this over the course of months, the answer's no.

DANIEL SCHORR: ABC's dramatic settlement resounded from Wall Street to 52nd Street, where CBS was deeply involved in its own investigation of the tobacco industry. "60 Minutes" producer Lowell Bergman and correspondent Mike Wallace returned from Louisville with their long-sought interview with the whistle blower from Brown & Williamson, Dr. Jeffrey Wigand.

JEFFREY WIGAND: ["60 Minutes"] I sent the document forward to Sandefur. I was told that we would continue working on a substitute and_

DANIEL SCHORR: Wigand had devastating things to say about his former employer.

MIKE WALLACE: ["60 Minutes"] In other words, what you're charging Sandefur with, and Brown & Williamson with, is ignoring health considerations consciously.

JEFFREY WIGAND: ["60 Minutes"] Most certainly.

LOWELL BERGMAN, Producer "60 Minutes": We were in the middle of reporting the story where Mr. Wigand, at that point, was a confidential source, where it wasn't clear we were going to broadcast the story, where we needed to vet the story. So we're in a real preliminary stage, in many ways, and this happens.

DANIEL SCHORR: What happened was_ just three weeks after the ABC settlement, while he was still working on the Wigand story, Bergman was summoned to a meeting at "Black Rock," CBS corporate headquarters, the home of the corporate executives and the corporate lawyers.

LOWELL BERGMAN: We usually deal with two attorneys who have been there for, oh, at least 20 years, who are the kinds of attorneys who want to help you get your story on the air and, in many cases, they raise questions both from a reporting point of view or a writing point of view that improves your story. In this case, they_ informed me when I was passing through New York that their boss was concerned about this story and I was summoned to Black Rock, which in 13 years that was the first time I'd ever been there.

DANIEL SCHORR: This would be the first of several meetings over the next few weeks with a group of bosses and lawyers about Bergman's interview with Dr. Wigand. Serious concerns were raised by CBS's chief corporate counsel, Ellen Kaden. She told Bergman that he and Wallace may have illegally induced Wigand to break his confidentiality agreement with Brown & Williamson_ in lawyer language, "tortious interference."

LOWELL BERGMAN: Nobody had heard of "tortious interference." I mean, I had a hard time spelling it, at first, you know? What's it mean? What are you talking about?

MIKE WALLACE: I'd heard about confidentiality agreements. Of course. And they're fairly common_ trade secrets and things of that nature. You don't fool around tampering with contracts. But_ but I'd never heard of "tortious interference" in any press versus corporation undertaking. And the tortious interference was, in effect, going after him to get him to tell the story.

DANIEL SCHORR: Going after Wigand, Kaden said, could expose CBS to legal risks in the billions of dollars and even just talking to him was dangerous. And the situation was complicated by the insistence of Wigand's lawyer that CBS pay for his client's defense if airing the interview led to a lawsuit.

Victor Kovner is a New York media lawyer. We asked his opinion about the position taken by Kaden and CBS outside counsel.

VICTOR KOVNER: I think that there is certainly merit to the view that that relatively unusual circumstance of asking someone to indemnify a source from their commitment of confidentiality, relieve them of their obligations_ that might well constitute tortious interference with contractual relations.

DANIEL SCHORR: But the CBS journalists believe that Kaden's position would lead to unprecedented new restrictions.

LOWELL BERGMAN: Generally speaking, we know what the rules are and a new rule had been created and a rule that said that there_ at least appeared to say that there was a whole class of people, people who potentially had very important information, from a journalism point of view, from a public point of view, who couldn't be talked to.

MIKE WALLACE: Even after the first meetings, we hadn't finished the reporting on this story. Lowell Bergman, the producer, was going to_ went to Louisville, Kentucky, to spend some time with Wigand. And he got a call from the lawyers here in New York, saying, "Don't_ get out of the house. Get out of Wigand's house. You are to do no more reporting on this. None."

DANIEL SCHORR: The message that came very clearly from their legal counsel was, "You got to stop this. Cut it off now. We are on very thin ice already."

VICTOR KOVNER: I'd have to say that was an overreaction, an extreme overreaction.

DANIEL SCHORR: What CBS lawyers did not raise was the 1st Amendment standard. That had been invoked in 1971 when The New York Times took the advice of its general counsel, James Goodale, and published the top-secret Pentagon Papers.

JAMES GOODALE, First Amendment Lawyer: Well, I think that CBS is very much like the Pentagon Papers case. You ask yourself, "Does the 1st Amendment protect the publication of the information that's the subject of our contract?" And you then ask yourself, "Well, suppose that information that's subject to our contract is in the public interest?" If it's in the public interest, then the Constitution of the United States says, effectively, that type of information ought to be published. Now, if the information is not in the public interest_ suppose it's a trade secret about how I make Coca-Cola and you're an employee_ well, that's a different matter. But if it's information that informs the public, the 1st Amendment protects publication of that type of information.

MIKE WALLACE: What I did was, I talked to a number of other attorneys who were very knowledgeable in this area. One or two of them said, "Yeah, there's a very serious concern here." The majority of them said, "This would never, never lead to the damages that you're talking about." Yeah, they might_ they might bring a lawsuit, but that's never stopped us from publishing a story before, the threat of a lawsuit.

["60 Minutes", November 14, 1993] _in 25 years. And threats of libel suits and libel suits_

MORLEY SAFER, CBS News: By the dozens.

MIKE WALLACE: Never lost one.

DANIEL SCHORR: At a 25th birthday party, "60 Minutes" celebrated its "profile in courage" under the aegis of executive producer Don Hewitt.

DON HEWITT: ["60 Minutes", November 14, 1993] The essential thing about me and Mike Wallace, that we are convinced we can lick any kid in the house.

DANIEL SCHORR: But in the fall of 1995, in the case of Dr. Jeffrey Wigand, Hewitt discovered that he could not lick the kids in his own corporate house. In October, at the National Press Club in Washington, before anything had been broadcast, Hewitt signalled his retreat.

DON HEWITT: But we've got a gun pointed at our head of $15 billion. So we have a story that we think is solid. We don't think anybody could ever sue us for libel. There are some twists and turns. And if you get in front of a jury in some state where the_ all the people on that jury are related to people who work in tobacco companies, look out. That's a $15 billion gun pointed at your head. We may opt to get out of the line of fire. That doesn't make me proud, but I_ I_ it's not my money. I don't have $15 billion. That's Larry Tisch.

DANIEL SCHORR: "60 Minutes" would soon find itself lampooned on its own network.

1st ACTOR: ["Murphy Brown"] Now, if he goes on FYI and reveals privileged information, it could be argued that you induced him into breaking his contract.

MURPHY BROWN: We're going to kill an accurate story because we might be sued? We've never done that before.

ACTRESS: Murphy, we can't take the risk. Look what happened with ABC and Philip Morris. Now, our suggestion is you kill the story.

MURPHY BROWN: Oh!

ACTRESS: Our suggestion will allow the network to avoid a $15 billion lawsuit that, if tried in a tobacco-friendly state, we will very likely lose.

2nd ACTOR: Murphy, I'm beginning to appreciate their suggestion.

MURPHY BROWN: Are you kidding?

2nd ACTOR: I have no choice. The network doesn't have $15 billion. I don't have $15 billion. Does anybody here have $15 billion?

MIKE WALLACE: At the very first meeting, Ms. Kaden mentioned, in view of what_ in view of the fact that Phil Morris had brought a $15 billion suit against ABC and that ABC had, indeed, settled and apologized, that's going to make it even more difficult for us.

LOWELL BERGMAN: It was communicated to me by one executive in the news division that the corporation would not risk its assets on this story. I think that's an accurate quote.

DANIEL SCHORR: That's Mr. Ober?

LOWELL BERGMAN: Right. Everyone else took their guidance from that, since he was the president of the news division.

MIKE WALLACE: ["60 Minutes"] We learned of a tobacco insider who might know the whole story, who could tell us whether or not the tobacco industry has been leveling with the public.

DANIEL SCHORR: And so, on November 12th, Mike Wallace, the intrepid broadcaster, broke new ground, telling 21 million Americans what he couldn't tell them.

MIKE WALLACE: ["60 Minutes"] Is your confidentiality agreement with [deleted] still in force?

JEFFREY WIGAND: Yes, it is.

LOWELL BERGMAN: You know, I'm a veteran of the '60s and I remember one day I turned to Don Hewitt and I said, "You know, it's been a long time since I've had a psychedelic experience, but this might rival some of the ones I've had in the past."

DANIEL SCHORR: Well, how did you express your frustration? It's your reputation involved, so how did you carry on during those awful weeks?

MIKE WALLACE: Well, I was not about to throw the baby out with the bath water, so to speak. I wasn't going to_ I finally decided I wasn't going to quit_

DANIEL SCHORR: What's the baby and what's the bath water?

MIKE WALLACE: Well, I meant throw the piece away_

DANIEL SCHORR: Right.

MIKE WALLACE: _by leaving CBS. I had no intention of doing that because I felt if I could stay inside CBS and little by little by little persuade Black Rock, where, basically, the decision came from_

DANIEL SCHORR: You would have gone, except you had to save the piece?

MIKE WALLACE: I would like to say that I would have gone, if I_ except to save the piece, but_ but it never really came down to that, Dan, in my mind. In other words, I never said, "Wallace, this is a quitting_ either you quit or you can't respect yourself ever again about this piece." It_ I_ it didn't_ that did not occur to me.

DANIEL SCHORR: At CBS, the brake was applied to investigative reporting, as it had been at ABC, just as the network itself was changing hands.

LAWRENCE TISCH: Today we announce the joining together of two long-standing leaders in broadcast and media.

DANIEL SCHORR: Four days after the "60 Minutes" fiasco, CBS chairman Lawrence Tisch would learn that the sale of the company to Westinghouse Corporation had been approved. The deal was in progress even while CBS lawyers were acting to avoid a multi-billion-dollar lawsuit.

MIKE WALLACE: It seems reasonable only to speculate that if the Westinghouse people were planning to buy CBS, they would not want to buy a $10 billion to $15 billion lawsuit along with the rest of the company. Makes sense.

DANIEL SCHORR: The sale of CBS was financially beneficial to the network's top executives: almost a million and a half dollars in stock options for news president Eric Ober, and for chief counsel Ellen Kaden, more than $1 million in stock options and $3.7 million more from a salary buy-out and other benefits.

MIKE WALLACE: I know her to be an honorable individual. Having said that, if she's running _ and she was running _ the merger negotiations, I think_ there was discussion perhaps_ among a bunch of us here that perhaps she should recuse herself from handling this particular agenda, our agenda.

DANIEL SCHORR: She didn't do that.

MIKE WALLACE: No.

MARTIN FRANKS, Senior Vice President, CBS: I categorically reject any notion that there are people here who are somehow manipulating the decisions of this corporation for their own personal gain.

DANIEL SCHORR: We asked CBS for interviews with Ellen Kaden and the other key executives involved in the "60 Minutes" decision, but were allowed to speak only to senior vice president Martin Franks.

MARTIN FRANKS: If, indeed, the corporation were regularly stepping on the news division_ those are not shy, retiring roses over there amongst your colleagues. We would have heard from them at high volume in a number of newspapers across America. The fact that we haven't seems to reinforce the point I'm trying to make.

DANIEL SCHORR: It's, in fact, because it was so_ such a rarity_ the fact that it's unique is why we're going into it.

MARTIN FRANKS: Yeah. If I was_

DANIEL SCHORR: We don't think it happens_

MARTIN FRANKS: If I was a baseball player_

DANIEL SCHORR: _every day.

MARTIN FRANKS: _and I could bat .999, I think I'd be pretty happy.

DANIEL SCHORR: Right, but if that last pitch came over and nobody understands why you let it go past you_

MARTIN FRANKS: Well, it's not_

DANIEL SCHORR: _that interests people.

MARTIN FRANKS: It's not necessarily our obligation to make sure that everybody understands why any decision is made in this company_ I mean, in the sense that, I mean, some things by their very nature_ not necessarily this case_ by their very nature, you're not at liberty to disclose everything that you know.

LAWRENCE TISCH: Remember, we were number one for three years, up until this past season.

DANIEL SCHORR: In a decade controlling CBS, Lawrence Tisch had revealed himself to be more businessman than broadcaster.

WALTER CRONKITE: Mr. Tisch, for all of his other virtues, obviously came to CBS and saw it as simply another firm, another company, another corporation, to_ to_ in which profit was to be maximized and value was to be increased toward a future sale. That was his entire approach to CBS and we saw the results of that in a vast deterioration of programming and in the news department.

DANIEL SCHORR: For Lawrence Tisch, CBS was only one asset in a house of many mansions. They include the Bulova watch company, a subsidiary of the huge Loews Corporation, which also controls hotels, and a tobacco company called Lorillard.

ANDREW TISCH: Mr. Chairman, I'm Andrew H. Tisch, chairman and chief executive officer of Lorillard Tobacco Company.

DANIEL SCHORR: His son, Andrew Tisch, was one of the tobacco executives who testified before Congress. Like the others, he denied that nicotine is addictive and also said he didn't believe cigarettes caused cancer.

ANDREW TISCH: We have looked at the data and the data that we have been able to see has all been statistical data that has not convinced me that smoking causes death.

DANIEL SCHORR: The Tisch family's tobacco interests _ among them popular brands like Newport _ provide most of their profits, according to Wall Street analyst Gary Black.

GARY BLACK: I don't think, you know, in the grand scheme of things, CBS was never a big investment for the Tisch brothers. Lorillard has always been a big investment. CNA, their insurance business, has always been a big investment. Tobacco is, you know, probably 60, 70 percent of the profits.

DANIEL SCHORR: Last fall, while the Tisch family was selling CBS, their tobacco company was busy buying six new cigarette brands from a competitor, the Brown & Williamson Tobacco Corporation, whistle blower Jeffrey Wigand's former employer. None of this was known at the time by the reporters at CBS.

MIKE WALLACE: Had no idea. And then a piece in The Wall Street Journal _ not much of a piece _ let us know that, obviously, the Loews Corporation, Lorillard, had been negotiating with Brown & Williamson all during that time for the sale of those brands. And naturally, we said, "Is it conceivable that the lawyers from Brown & Williamson, who were talking about the possibility of"_ although they hadn't threatened the suit_ "talking about the possibility of a suit against CBS News or against CBS_ they didn't know what the lawyers were doing with the Loews Corporation and Lorillard Tobacco?" It beggars belief.

LOWELL BERGMAN: I think that we were deceived and lied to. I think that more is going on here than we even know now, unfortunately.

DANIEL SCHORR: Will we ever know for sure?

LOWELL BERGMAN: I don't know. Do you ever know anything for sure?

DANIEL SCHORR: January 26th, 1996_ The Wall Street Journal broke the story that ""60 Minutes" had suppressed. From a Mississippi court case, the paper obtained secret testimony from Dr. Wigand that paralleled his "60 Minutes" interview. And nine days later "60 Minutes" finally ran that interview.

MIKE WALLACE: ["60 Minutes"] Which is true, what the tobacco men at Brown & Williamson say about their former research director, Dr. Jeffrey Wigand?

TOBACCO EXECUTIVE: His life has been a pattern of lies.

MIKE WALLACE: Tonight, Jeffrey Wigand, the scientist whose insistence on defying his former employer has led him to tell what he believes to be the truth about cigarettes. What is it that he believes to be the truth about cigarettes? And what is it that Brown & Williamson believes to be the truth about him?

DANIEL SCHORR: We joined Dr. Wigand in Louisville to watch the broadcast, a story about the tobacco business and about the campaign by his former employer to destroy his credibility.

MIKE WALLACE: ["60 Minutes"] Beyond that, they charged him with a multitude of sins, from fudging his resume to making a false claim three years ago for $95.20 for dry cleaning.

DANIEL SCHORR: Charges The Wall Street Journal had investigated.

MIKE WALLACE: ["60 Minutes"] A close look at the file and independent research by this newspaper into its key claims indicates that many of the serious allegations against Dr. Wigand are backed by scanty or contradictory evidence.

DANIEL SCHORR: Well, what do you think?

JEFFREY WIGAND: Interesting reliving it. If one looks today at what aired on "60 Minutes", I think they probably took the course of least resistance this time. I have to be honest with you. If it wasn't for the Wall Street Journal article I guess two weeks ago, I'm not so sure we would have seen it aired tonight.

DANIEL SCHORR: The "60 Minutes" story was not the end of Jeffrey Wigand's story. His life had been turned upside down. He was now a major witness in suits against tobacco companies across the country and he is followed every day by bodyguards paid for, ironically, by CBS. His marriage has disintegrated under the stress. He now lives in a few half-empty rooms in a secret location.

JEFFREY WIGAND: Up to now, I thought I always had a sanctuary to go back and have some environment where I could kind of unwind or feel safe or talk about_ I don't have that now.

DANIEL SCHORR: Once he lived here, a $300,000-a-year tobacco executive. Now the former head of research for Brown & Williamson spends his evenings grading high school science students.

JEFFREY WIGAND: It's been tough. Is it going to continue to be tough? Yeah, I think so. Do I have the mental resolve to continue? Yeah, I think I do.

RON MOTLEY, Attorney: They have beleaguered him, slandered him and done everything they can to shut him up. He's still standing. He's still talking. He's still telling the truth. That is a beacon light for others like him. And I can only tell you that we get dozens of phone calls every week and people are coming out of the closets left and right to tell us what they know about the truth about tobacco.

DAN RATHER, CBS News: ["CBS Evening News"] The whistle blows again_ new accusations against the tobacco industry tonight from another former insider who talks exclusively with Mike Wallace.

FORMER TOBACCO COMPANY EMPLOYEE: There was nothing that I was aware of that wasn't known just by the local scientific community but was known by management.

DANIEL SCHORR: Those who have followed Wigand have found the networks suddenly a lot more courageous.

SAM DONALDSON, ABC News: ["PrimeTime Live"] Tonight, a major new piece in the tobacco puzzle. Did Philip Morris try to hide what it knew about nicotine and addiction?

EXPERT: It's just a cover-up that's unbelievable.

DANIEL SCHORR: For ABC News, it's a chance to show it is back in the game.

PAUL FRIEDMAN, Executive Vice President, ABC News: Look, in all of your questions there is this assumption that there's a huge chill over the news-gathering industry, that no one is pursuing issues of tobacco and health or, more specifically, if you wish, that ABC News is not pursuing issues of tobacco and health. And that is simply not true. I cannot allow you to continue to kind to base these questions on this perception that you have that there's a chill. There's no chill.

DANIEL SCHORR: As television works to redeem its reputation, the original whistle blower reflects on what he went through before his whistle was finally heard. In the battle for the public interest, the victory doesn't stay won for long and those who've been through the experience are not sanguine about the future.

JEFFREY WIGAND: Well, corporate America can be very powerful. I think, if you look back on the last year's events, the whole capitulation of ABC with the Philip Morris is_ is the power of corporate America. That, I think, set the stage a little bit of intimidation factor. I think CBS had that in the back of their mind at the same time, too, this $15 billion suit that's just been resolved by an apology, plus some financial compensation associated with legal fees. Is there intimidation? Yeah.

WALTER CRONKITE: You know, the journalistic courage takes a lot of forms, a lot of forms. And one of the important forms it takes is in the_ in the corporate environment. And unfortunately, there is_ there are few people in that corporate environment _ virtually none who I can cite on any network _ that have any background or journalistic ethics or journalistic principles or journalistic responsibility.

DANIEL SCHORR: And that thing you call "corporate courage" _ "corporate guts," I would call it _ do you see it coming back soon?

WALTER CRONKITE: Well, no, quite frankly, I don't see any_ any hint of it on the horizon. Where would you find it? I don't know where it might be.

DANIEL SCHORR: The next generation_ we don't want to get lost in details and now you come and you say, "Okay, now that you've shown it, it's been been a half-hour show, an hour show, now let me tell you what is really involved here, what you should know about it."

MIKE WALLACE: What you should know is that the press frequently gets involved in adversary procedures against big business, against the government, sometimes against individuals. And if your reporting is accurate and if your research is thorough, then you would hope that you would have management of a news division_ they may be in the entertainment business over here and they may be in another business over there and_ but they would_ the hope would be that no matter who owns the network or who owns the paper, they'll have the courage and the sense of obligation to let the truth be told.

DANIEL SCHORR: You very carefully said "the hope." The confidence?

MIKE WALLACE: The hope.

ANNOUNCER: Visit FRONTLINE on the web at pbs.org. You've seen our documentary, now click into FRONTLINE's Webumentary. An internet voyage through three decades of the tobacco industry's top secrets. In addition to this special report, check our interviews with Walter Cronkite and other media analysts. It's all here at FRONTLINE online at pbs.org. And now for your letters. Our program, "Murder on Abortion Row," drew hundreds of responses, most of them positive, but these viewers were critical of it.

TIMOTHY SHEEHAN: [Hopkinton, MA] Dear FRONTLINE: Isn't "Murder on Abortion Row" a little redundant? Isn't it like saying "dead bodies in a cemetery"? Those of us that are pro-life do not think it news that murder occurs on "abortion row". In fact, we believe it happens every day, about 30 million since 1970. Sincerely, Tim Sheehan, Hopkinton, MA.

JACQUE SMITH: [San Francisco, CA] Dear FRONTLINE: Rather than present John Salvi as pretext for the real human tragedy of a double murder, a more thoughtful account would have discussed the prevalence of mental illness and the necessity of intervention. As a consequence of ignorance, stigmatization and neglect, the John Salvis of the world are often left to find solace in the rhetoric of radical political factions. Jacque Smith, San Francisco, CA.

MURRAY DARRACH: [Pasadena, CA] Dear FRONTLINE: Instead of becoming mired in debating the morality of abortion, you focused on the lives brutalized by this tragic event, a true story of finding victims on both sides. Murray Darrach, Pasadena, CA.

ANNOUNCER: Let us know what you think by fax at (617) 254-0243, by e-mail [FRONTLINE@pbs.org] or write to this address [Dear FRONTLINE, 125 Western Avenue, Boston, Massachusetts, 02134].

The critically acclaimed movie Dead Man Walking told her story: a nun working on death row. Now FRONTLINE tells the rest of the story: the killers, the victims and the real woman who's rekindled the debate on the death penalty. "Angel on Death Row" next time on FRONTLINE.

LOWELL BERGMAN: I think that we were deceived and lied to. I think that more is going on here than we even know now.

SMOKE IN

THE EYE

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(c) 1996

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