Tobacco Row

In the past few months, who has done the most harm to First Amendment freedoms? This is a sophisticated test, so pay attention. Was it:

(a) the tobacco industry

(b) Energy Secretary Hazel O'Leary

(c) U.S. District Court Judge John Feikens

(d) CBS's 60 Minutes

(e) all of the above

No, it's not (e). That kind of guess may fly on the SAT but not here.

The tobacco industry? Not really, unless you believe the First Amendment, properly applied, means no one has a protectable interest in their reputation. The tobacco industry obviously spends more in legal fees each year than their reputation is worth, but, small thing that it is, they treasure it and they are welcome to it.

Hazel O'Leary? Get serious. A run-of-the-mill Clinton appointee who has so far managed to avoid having her own special prosecutor, she is notable only for the frequent trips she takes out of Washington at taxpayer expense, including a number of foreign junkets. What normal American can blame her for wanting to get out of town? While it's true she spent $45,000 of your money to compile what some call a Nixon-like "enemies list" of unfriendly reporters, that kind of money is barely a blink of the eye in Washington. Admit it, were you really shocked to learn that a public official kept lists of friendly and hostile reporters?

Judge John Feikens is the wrong answer also, but picking him shows your sophistication in this area and, accordingly, you get extra credit if you knew he is the judge who issued the patently unconstitutional prior restraint against Business Week and its story on Procter & Gamble's lawsuit against Bankers Trust. Indeed, but for the crew at 60 Minutes, Feikens would have been the correct answer. A Nixon appointee who barred Business Week from publishing a story with documents legally obtained by its journalists, he never once cited the landmark Pentagon Papers case in his decision, thus enshrining forever the principle that avoiding embarrassment to a leading financial institution will trump the First Amendment where national security will not.

So, that leaves only one choice: 60 Minutes, the oldest and most respected investigative journalism broadcast. Still, it's possible to blame Feikens's ruling for 60 Minutes being the correct answer. That's because New York media types and their lawyers were talking about little else in early November. Feikens threw out a heretofore inviolate rule: no prior restraints on publication. Period. Hence, it fell to 60 Minutes's legendary Mike Wallace to come to the rescue of the First Amendment as the Business Week lawyers and as his own CBS lawyers had not. Unfortunately, instead of protecting freedom of the press, the heedless, hubris-ridden Wallace has done it great harm.

A brief history: 60 Minutes prepared a story on the tobacco in-dustry. One of their confidential sources was a former Brown & Williamson Corp. vice president, Jeffrey Wigand. In the story, which never aired, Wigand accused his former employer of using an additive in pipe tobacco that causes cancer in laboratory animals and of dropping plans to develop a new, safer cigarette. Wigand was, as you might expect, a disgruntled former employee. He had been fired by Brown & Williamson in 1993, and pursuant to a post-employment settlement agreement that restored his severance package and health care benefits, he agreed to what his lawyer terms "a Draconian confidentiality agreement."

When that agreement was reviewed by CBS lawyers, they recommended against airing the Wigand portion of the story because they believed Wigand would be violating his confidentiality agreement, and CBS might be sued by Brown & Williamson for interfering with its agreement with Wigand and inducing him to breach it. CBS executives, including CBS news president Eric Ober, followed their lawyers' advice.

So far, so good. As a libel lawyer who has advised both print and broadcast media prior to publication, I can assure you this was no big deal. It happens all the time. Sometimes the client takes your advice. Sometimes it doesn't. What happened next, however, will have a lasting and chilling effect on journalism and the First Amendment, especially business journalism.

Don Hewitt, executive producer of 60 Minutes, and Mike Wallace, principal correspondent on the tobacco story, went public with their complaints about the CBS decision, including the fact that it was based on lawyers' advice. They did so after apparently not prevailing in internal corporate discussions.