CBS: Rather Producers Lawyer Up Against Network
Rathergate is back in the news. The New York Observer reports that Josh Howard, Betsy West and Mary Murphy, the producers asked to resign after the release of the independent report on Dan Rather's infamous '60 Minutes Wednesday' segment on President Bush's National Guard service, are not leaving. Instead, they have hired lawyers and are contemplating legal action against CBS for breach of contract and possibly, defamation.
After the 224 page report (pdf) was released on January 10, CBS President Leslie Moonves publicly criticized executive producer Josh Howard in this statement(pdf). Short version, according to the Observer:
Mr. Howard, Mr. Moonves said, "did little to assert his role as the producer ultimately responsible for the broadcast and everything in it. This mistake dealt a tremendous blow to the credibility of 60 Minutes Wednesday and to CBS News in general." The producer, he wrote, had been asked to resign, and the network was "taking a variety of actions to put this crisis behind us."
Howard reportedly has demanded a retraction.
Sources close to Mr. Howard said he believes that the report—which was assembled by an outside team of former Attorney General Richard Thornburgh and former Associated Press head Louis Boccardi Jr.—contradicts Mr. Moonves’ statement about Mr. Howard’s share of the blame.
Mr. Howard also believes, those sources said, that the report itself excludes evidence that would implicate top management at CBS and restore Mr. Howard’s reputation in the television news business.
Two prominent New York lawyers say CBS has potential exposure if Howard sues for defamation:
Jay Goldberg, a civil litigator who has represented Donald Trump, said...if a chief executive made public statements about employees that cannot be supported by facts—i.e., by the narrative of the Thornburgh report or, worse, other unreported material—it could open the company up to trouble. "They were very foolish to go public with an attack on these people, because they lose their immunity to be sued for defamation," Mr. Goldberg said. "Whereas if they had put these very same things in court paper, they could not be sued."
First Amendment expert Martin Garbus says:
....Mr. Moonves’ statement may well give Mr. Howard grounds for a defamation suit. "He has a claim," said Mr. Garbus. "Anything that they say bad about him, and that impugns his reputation in the business in which he’s in—basically, they’re saying that he’s incompetent. That’s not opinion, that’s specifically stating. One way in which you protect yourself from libel is that you always say ‘in my opinion.’ But [Mr. Moonves] didn’t say it. He’s saying, ‘The producer did this, the producer did that.’"
CBS disputes Howard's allegation that he told CBS to stop stonewalling after the segment aired. If a lawsuit is filed, Howard reportedly will go after Moonves and other brass at CBS as to their role in standing by the story after it aired.
There's problems for both sides. There's also problems with report. The investigators' interviews inexplicably were not recorded and the subjects were not allowed to take notes. The report doesn't conclude the documents were false. The report finds that that CBS News President Andrew Heyward gave the go-ahead to the segment the day before it aired and viewed it an hour before airtime.
There's probably plenty of blame to go around. And dirty laundry. A lawsuit means both sides will seek all the e-mails of everyone involved. That will be damaging to CBS. On the other hand, even if Moonves is found to have mis-stated the facts about Howard's role and responsibility for the segment, it could still be a long time before Howard regains his reputation in the journalistic community.
Ron Reagan, Jr. and Monica Crowly will be discussing these developments today on their new 5:30 p.m. (ET) MSNBC show, Connected Coast to Coast. Hugh Hewitt and I will be providing some commentary.
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