Forget the Movie and TV Show.
I'll Wait for the Book.

By Holman W. Jenkins, Jr.
Copyright 1999 Wall Street Journal
November 3, 1999

Four years ago, CBS News spiked an interview with a tobacco researcher, Jeffrey Wigand, because the network's lawyers were afraid of lawsuits. Mr. Wigand was going to say that his former employer, Brown & Williamson, had blocked research into a safer cigarette because the company's lawyers were afraid of lawsuits.

Already you might say there are too many lawyers involved, but now this story has been made into a movie, "The Insider," set to open in theaters this Friday. At last week's premiere in Beverly Hills, the guests of honor included two more lawyers, Richard Scruggs and Mississippi Attorney General Mike Moore. Along with Mr. Wigand, this cabal also starred in another production, bigger than any Hollywood picture, the state Medicaid lawsuits against the tobacco industry.

Not having seen the movie, we'll reserve judgment on how these complexities are treated. But anyone not involved in sensory deprivation experiments knows the crowd at "60 Minutes" is unhappy. Mike Wallace dismisses the film as a hokey morality play and has worked the media masterfully to counter his portrayal as someone who initially "caved in" to the network suits.

As small screen reality becomes big screen reality, real world reality has also been coming into sharper focus. Whatever their legal acumen, the editorial judgment of the CBS lawyers looks better and better.

The latest contribution to our understanding came last week, when two Louisville television stations reported an affidavit by an FBI agent who had investigated a death threat supposedly made against Mr. Wigand. In commercials for the movie this is the scene of Mr. Wigand finding a bullet in his mailbox.

It turns out it wasn't only the FBI agent who suspected Mr. Wigand of faking the death threat. So did the professional security man hired by CBS to protect Mr. Wigand. Those with an appetite for detail can click on the rolling ticker at

Mr. Wallace says CBS suspected at the time that Mr. Wigand might have planted the bullet and threatening note himself. "It was questioned but we couldn't come to a conclusion one way or the other." So why was the death threat featured when a portion of the interview appeared on the CBS Evening News, and why did it disappear when it finally aired on "60 Minutes" a week later?

"It's a fair question," Mr. Wallace says, referring us to CBS executives who decline to provide the answer.

OK, but why should anybody expect better of Disney, which turned the bullet in the mailbox into a pivotal scene in the movie?

Getting back to the CBS lawyers, they ordered "60 Minutes" to drop the Wigand story in November 1995 because they feared a "tortious interference" lawsuit by B&W. Mr. Wigand had signed a confidentiality agreement with the company. CBS could have been accused of illegally inducing him to violate it.

CBS at the time was negotiating to sell itself to Westinghouse, from which many CBS officials would profit handsomely. When you give executives stock options don't be surprised when they put shareholder interests first. But were they being legal chickens? Some have suggested no court would have allowed a mere contract to stand in the way of Mr. Wigand's burning revelations.

The movie buys the idea that the Wigand interview would rip the lid off the tobacco industry. But a great deal of damaging information had already been revealed in documents stolen by a disgruntled paralegal. Anytime it wanted, "60 Minutes" could have developed a report on what B&W knew about nicotine addiction. Others did, including this newspaper.

The mythology of the "scoop" notwithstanding, "60 Minutes" was not discovering "news" so much as packaging a melodrama around a "whistleblower." This is a distinction that judges and juries are fully capable of making.

It also came out that CBS had paid Mr. Wigand a modest consulting fee on a previous piece and had agreed to indemnify him against a libel suit if he told the truth. Neither gesture seems particularly nefarious. But Lowell Bergman, the CBS producer and hero of the film, also gave Mr. Wigand a veto over whether the interview would be aired, which raises a problem.

Mr. Wigand's lawyer and adviser was none other than Mr. Scruggs, who had already begun spending millions of dollars in seed money to promote the Medicaid tobacco suits. According to Mr. Wallace at CBS, Mississippi Attorney General Mike Moore had "long before" identified Mr. Wigand as someone who could help their case.

It was Mr. Scruggs who provided a house, a boat, two cars and an income for Merrell Williams, who stole the B&W documents. Mr. Scruggs stood to lose a great deal of money if the lawsuits failed, and when they succeeded it netted hundreds of millions for him and billions for Mississippi.

Lawyers are not editors, and journalists aren't supposed to worry about the consequences of the news they report. But we all know it's more complicated than that. If the CBS lawyers stepped back and decided something here didn't pass the smell test, who could blame them?

There was a good story to be done--eventually it was done by this newspaper and the Washington Post--about the industry's failure to develop a safer cigarette. But what "60 Minutes" was presenting was a dramaturgy that matched Mr. Wigand's needs with the needs of television news. He was to be the conscience-stricken hero, hunted by a vindictive tobacco empire.

None of this had much relevance for the dangers of tobacco, which are well known, nor for the public policy questions, which have been sidetracked in the pursuit of lucre. It had greater relevance for, in the increasingly bizarre world of our courts, attaching "liability" to the tobacco companies so a large portion of the future proceeds of smoking could be transferred from shareholders to the trial lawyers and state budgets.

Mr. Wigand had confided in his diary in 1991 that B&W had lost its stomach for the safe cigarette project, but he stuck around collecting his $300,000 salary until he was fired in 1993. Was he really the right person to turn into a celebrity witness for a politicized shakedown of the tobacco industry?

Journalists usually rely on gastrointestinal indicators to warn when their quest for a "story" has led them too far in the direction of being co-opted by someone else's agenda. They probably won't get much justice in the movie, but the CBS lawyers may turn out to have been better journalists than anybody is willing to give them credit for.

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