Investigative Journalism Under Fire
Shrinking budgets and concerns over legal risk have hurt a vital genre
By Marisa Guthrie -- Broadcasting & Cable, 6/22/2008 8:00:00 PM
“The Mother of All Heists,” CBS's 2006 60 Minutes report, had all the hallmarks of a classic piece of investigative journalism. The story took the U.S. and Iraqi governments to task for the disappearance of more than $500 million that had been earmarked to fight the bloody insurgency tearing Iraq apart. The report, produced by Andy Court and Keith Sharman and reported by Steve Kroft, was more than a year in the making and required filming in three countries. And despite being a story the Bush administration would have preferred not be made at all, “The Mother of All Heists” epitomized the chief mission of the press: It uncovered a glaring story of corruption and abuse of power.
These are the kinds of marquee reports for which network execs publicly profess support. At a time when distracted viewers are bombarded by news and information from a multitude of sources, “The value of reporting something no one else has goes up,” says David Westin, president of ABC News. “I think our ability to do original reporting and investigative [pieces] is the prime example of that, and it becomes more and more valuable.”
That may be the case, but it's also becoming less and less prevalent.
Investigations of the rich and powerful, the multinational corporations and monopoly industries, have all but dried up, say a coterie of journalists still trying to ply their trade. To be sure, enterprise reporting on the network level is far from dead. Investigations are, for instance, still staples at 60 Minutes and PBS's Frontline. Brian Ross and his producers are a vibrant force in TV investigations that singlehandedly keep ABC News in the game. But the days of news divisions rich with staff and resources claiming multiple hours a week of primetime real estate with newsmagazines are now history.
Producers have felt the sting of contracting budgets and swelling corporate concern over the bottom line. Such conditions have been most inhospitable to reporters working on investigations requiring time and resources; these stories are often magnets for legal action.
“I think there's a huge need for that kind of investigative work, and it's clear there's less of it,” says Bill Buzenberg, executive director at the Center for Public Integrity, which specializes in investigations. “It's risky, it's expensive, it takes huge resources and talent, and with much of the press owned by large corporations, I think there's a certain reluctance to do that.”
Muckrakers Raked Over the Coals
Peering under proverbial rocks to bring corruption and abuse of power into the searing light of public scrutiny has always been the role of the watchdog press. And while it is true that the head of a state or federal agency may still end up on the hot seat being grilled by a network correspondent, the genre is on life-support compared to what it once was.
If networks are at all gun-shy, it's because of a vexing list of concerns. Deregulation has allowed news divisions to be swallowed by larger risk-adverse corporations. Investigating other billion-dollar corporations is less than prudent when those behemoths fight back in potentially ruinous lawsuits that can cripple a news division, which makes such stories an even less profitable and riskier investment for a GE, a Disney or others.
Consequently, investigations into big business, arguably more essential than ever at a time when Wall Street machinations are at the center of the $400 billion subprime mortgage collapse, have become increasingly rare.
“What's really in danger is the availability of information in the public interest,” says Lowell Bergman, a veteran of CBS News and 60 Minutes. “That kind of work was never encouraged. You always had to know where the limits were. Now there isn't even a pretense of doing it.”
Bergman, who runs the investigative reporting program at the University of California at Berkeley and continues to work for Frontline, calls investigations an “anti-profit” business.
While investigations are far from extinct, few can make the case that the scope and number of reports on network news are not but a shadow of what they once were. In the 1980s and '90s, they were the pride of news divisions and a popular primetime destination. In 1993, the last year that 60 Minutes finished the TV season atop the Nielsen ratings, ABC's Primetime Live was making its name for hidden-camera investigations. Today, the show has no dedicated time slot, and with the recent exception of Diane Sawyer's “Prostitution in America,” it hews toward crime, celebrity profiles and voyeuristic behavior labs. 48 Hours, which began in the late 1980s as a documentary program, has redefined itself as a true crime show. And NBC's Dateline has mostly pared its investigations down to a single gotcha concept such ast he controversial pedophilia sting “To Catch a Predator.”
The decline began in the 1990s when a string of high-profile legal skirmishes sent corporate counsel at the networks into a defensive posture. The actions put network news divisions on notice: If you're going to take on big businesses, keep in mind that they will defend themselves ferociously.
An early demonstration of how risky it could be to tangle with big business came from General Motors, which sued NBC News over a 1992 Dateline segment that infamously staged a truck explosion to dramatize the dangers of the company's fuel tanks.
At ABC News, another lawsuit all but did away with a pillar of investigative journalism: the use of hidden cameras to catch parties in unethical or illegal acts. The grocery chain Food Lion sued ABC News for $4.7 billion after two Primetime Live producers misrepresented themselves on applications and, wired with cameras in their hats, taped workers repackaging expired meat as fresh. Though a huge jury award was eventually reduced to a mere $2, the damage was done. After Food Lion, producers needed special permission to use hidden cameras.
While ABC and NBC were clearly in the wrong, these cases still had a ripple effect through the industry.
The watershed moment came with the infamous tobacco suits at ABC and CBS. In 1995, Bergman, then a producer at 60 Minutes, battled CBS brass to broadcast an interview with Brown & Williamson whistle-blower Jeffrey Wigand of The Insider fame. The network was being sold to Westinghouse at the time and wary corporate counsel claimed the Wigand interview would constitute tortuous interference. And Philip Morris sued ABC News for $10 billion over a 1994 report on the now-defunct newsmagazine Day One that uncovered the then-shocking evidence that cigarette manufacturers manipulated nicotine levels to keep smokers hooked. The network, which was being acquired by Disney at the time, declined to fight Philip Morris in court and instead settled for a reported $17 million; it capitulated in a widely derided on-air apology that those involved still describe today as “disgusting” and “pathetic.”
“There is a belief—and I don't know if it's because a consultant said so or what—that real investigations do not appeal to viewers,” says Walt Bogdanich, who produced the Day One piece and is now at The New York Times, where he recently won his third Pulitzer Prize. “I think if you put faux investigative pieces on and package them as investigative, whether it's 'To Catch a Predator' or whatever, it ceases to be journalism and becomes voyeurism.”
“The commitment to [investigative reports] is fragile,” says Jeff Fager, executive producer of 60 Minutes, which still regularly wins its Sunday-night time slot. “If you let go, it can be a very fast downward spiral. So we don't ever take it for granted because I know what it can be like if someone comes in and doesn't really like what we do. Why aren't you doing top 10 celebrity meltdowns on 60 Minutes? If that happens, our audience is going to say, 'They're putting the stopwatch up but that's the only thing I recognize.' I think that's what has happened at other places.”
If there is a last bastion and Holy Grail of TV investigations, it is PBS's Frontline. Even there, the genre faces jeopardy and an uncertain future. In 2003, “A Dangerous Business,” a report examining the water and sewer pipe industry in Texas, kicked off a four-year legal battle. Reported by Bergman and accompanied by a Pulitzer Prize-winning New York Times series, the report detailed egregious workplace safety violations that caused systemic maiming and, in several cases, gruesome deaths of workers.
“That was a great drain and if it wasn't for TheTimes, I fear that we might have been in a position where our insurance company would have said, why don't we just settle this?” says Frontline executive producer David Fanning.
A Texas judge dismissed the suit last year. But Fanning and Bergman are now working to establish a pro-bono team of lawyers to help insulate Frontline from legal threats.
“It's not that we're not careful,” Fanning adds. “It's a question of what it does to you the next time round. Do you find yourself pulling back? Do you find yourself looking over your shoulder?”
Hard to Find Wrongs Without Rights
Government has traditionally been a softer investigative target. But reluctant reporters and producers now speak of an anti-media bias that has been roiling the courts, eroding First Amendment privileges that journalists once took for granted.
The lack of a protective federal shield law has meant not only insurmountable legal bills, but jail time for many reporters who have refused to give up confidential sources in what are often legal fishing expeditions. The investigation into CIA operative Valerie Plame's identity is only the most famous example.
“The biggest impediment has been legal,” says Ross, ABC's chief investigative correspondent.
For investigative reporters who work closely with government sources, the courts' open season on journalists in an attempt to ferret out government informants—frequently using “national security” as their own shield law—presents a serious problem. Ross was among several journalists subpoenaed by lawyers for former Army scientist Steven Hatfill, who was identified by government sources as a “person of interest” in the FBI's anthrax probe. Ross' source released him from confidentiality, and the source voluntarily appeared to answer pre-trial questions from Hatfill's lawyers. But the courts' current indifference to reporter's privilege portends a further dampening of investigations and the motivation to do them. And while a shield-law bill is currently in Congress, it has yet to find its way to the president.
“If we don't have sources and the ability to keep them confidential,” Ross says, “then we risk becoming part of the steno pool.”
Not that this has curtailed the efforts. In an increasingly noisy and fragmented media landscape, there can be considerable benefit to a news division's standing when an investigation catches a guilty party dead to rights.
A recent CBS News investigation uncovered formaldehyde-tainted trailers pawned off by FEMA on unfortunate survivors of Hurricane Katrina; another CBS report revealed alarmingly high veteran-suicide rates. Both stories ushered in government reforms.
A Dateline investigation revealed that although the 9/11 Commission concluded that four of the 19 Sept. 11 hijackers entered the country with doctored passports, the black market for illegal travel documents is thriving.
Government waste has become a bailiwick of CNN's Anderson Cooper 360, which pounds away at pork-barrel spending and government earmarks in its “Keeping Them Honest” feature.
Ross has turned investigations into a popular feature at ABC News, creating competition among producers at the network's various broadcasts for content from the investigative unit. Page views for “The Blotter,” the investigative unit's Web page, which was instrumental in breaking open the Mark Foley congressional page scandal, posted a 435% increase in April compared to the previous year, according to ABC.
Reports such as these contribute to the public good and prove that when the internal bureaucracy can be surmounted, news executives and their reporters will still go for the jugular. But the economic challenges and the media's collective identity crisis remain.
“In this litigious era, there is a chilling effect on that kind of work,” says Steve Capus, president of NBC News. “You have to have the courage of your commitments, though. Anytime we start poking around, the first people you're going to hear from are the attorneys of the people being scrutinized.”
“I've been sued nine or 10 times,” Ross adds. “Knock on wood, but this is the first time in a long time I have had no pending lawsuits.”
From 'Anti-Profit' to Nonprofit
“Is it true that if you turn on your television today, your odds of hitting something investigative are lower than they were 15 years ago? Yes, I think that's true,” says Stephen Engelberg, the former editor of The Oregonian, who left to become managing editor of ProPublica.
Formed last fall and headed by Engelberg and Paul Steiger, late of the Wall Street Journal, ProPublica is an independent nonprofit newsroom specializing in investigations. It joins a contingent of journalism nonprofits currently operating, including the Center for Public Integrity, the Pulitzer Center on Crisis Reporting and the Center for Investigative Reporting. What sets ProPublica apart is its annual $10 million budget, courtesy of California billionaires Herbert and Marion Sandler.
The first 60 Minutes/ProPublica co-production, broadcast June 22, is an investigation into Al Hurra, the U.S. government's taxpayer-supported TV network in the Middle East, which has drawn criticism for broadcasting anti-Israeli commentary, among other things. ProPublica is in discussions with Frontline and ABC News about multiple projects.
“Here we are offering to do fairly expensive basic research for free, and we'll bring it to you when it's right and we know it's real,” Engelberg says. “That's not a half-bad deal if you've been subjected to massive cutbacks.”
Co-productions have been a staple for Frontline, which hasn't seen a budget increase in a decade thanks in part to hostility from Washington toward arts funding of any kind. But as traditional partners including the BBC have gone more tabloid, there are less opportunities for co-productions on the kind of broad international investigations for which Frontline is known, according to Fanning. Earlier this year, he established a Frontline journalism fund to solicit money from philanthropic and charitable organizations. The fund's first contributor was Paul Newman, who sent an unsolicited donation of $50,000, Fanning says, because he appreciated The Lost Year in Iraq, Michael Kirk's evocative 2006 documentary about the first flawed year of the war.
It's worth noting that after six years of war in Iraq—at a new total estimated cost of $2.7 trillion—the media is still debating its role, or lack thereof, in the run-up to the conflict. Did we ask the right questions, wonder reporters? The soul-searching may be cathartic, but futile, if the right questions don't get asked the next time.
“There's a kind of crisis in journalism right now,” says Mike Hoyt, executive editor of the Columbia Journalism Review. “The economic model has led to a crisis of self-confidence or mission so that [journalists] are spending their energy trying to figure out ways to survive—or thrive—in the new era, as opposed to putting that energy into great journalism.
“But I think we need good investigations more than ever.”
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