To September 11 Fishwrapper

1.   “Wilson and Akre were fired by the station for repeated acts of insubordination.”

This was the Fox defense when we filed suit claiming we were fired because we threaten to disclose pressure from Fox managers who ordered us to deliberately distort the news.  Mr. Sugg bought into that defense early on and frequently cites it as not his opinion but as fact.  That very issue was decided by a jury at trial.  After hearing five weeks of testimony, a Tampa jury of our peers decided Fox’s defense (and Mr. Sugg’s opinion) was not consistent the facts. 

Asked to decide, “Do you find that the plaintiff Jane Akre has proven by the greater weight of the evidence that the Defendant (Fox)…terminated her employment…because she threatened to disclose to the FCC under oath and in writing the broadcast of a false, distorted, or slanted news report which she reasonably believed would violate the prohibition against intentional falsification or distortion of the news on television if it were aired?”  The jury voted unanimously: YES  (please see attached Exhibit #1)

We request a clarification of the published statement to make it clear it is Mr. Sugg’s opinion and not fact, and is in conflict with the unanimous finding of a jury after a five-week trial. 

It is critical to note:  the District Court of Appeal decision overturning the jury’s verdict was not rooted in any finding by the DCA that the jury erred in its conclusion that Jane was terminated because she disclosed or threatened to disclose the intentional falsification or distortion of the news.  The reversal was based only on a finding by the appellate justices that, as a matter of their interpretation of the law, we were not entitled to any protection extended to whistleblowers under the Florida Whistleblower Act.  In a ruling that was directly contrary to earlier rulings on the identical issue before three separate trial court judges on six earlier occasions, the appellate justices only said that since there is technically no law, rule, or regulation against deliberately distorting the news on television, two reporters in our position did not qualify as whistleblowers because the employer misconduct at the heart of our matter (deliberate news distortion) is not illegal.   

Let me also short-stop an expected Sugg defense here related to an item I’ll discuss more fully farther down at correction request #7. 

He has consistently recited Fox’s spin on the verdict after its loss in the courtroom, namely that the jury did not determine that the broadcast Jane and I were pressured to broadcast was false, distorted, or slanted, only that we reasonably believed it was.  While that is an artful interpretation published in the Fishwrapper column, we believe, as do many legal experts, that the verdict supports no such conclusion. 

2.      “They sued WTVT under a Florida whistleblower law and immediately began a vigorous campaign of fundraising and self-promotion.”

The claim, stated here as fact, that we “immediately began a vigorous campaign of fundraising…” is demonstrably false, as I have already outlined in great detail and documented for Mr. Sugg in a written statement that read in part: (please see attached Exhibit #2)

“We filed suit against Fox and posted our website on April 2, 1998.  We did so without any appeal for financial support and rejected all such offers, prepared to fund the estimated $50,000 out of our personal savings.

Nearly a year later, after we had well surpassed the $50,000 mark and it was clear the battle would be longer and many times costlier than our lawyers originally estimated, we re-evaluated our situation.  In the Spring of 1999, we posted a new page on our website which said, in part: (please see attached Exhibit #3, this parenthetical reference was not included in e-mailed statement being quoted here)

‘When we filed our lawsuit in early 1998, we vowed to each other that we’d never ask anyone for financial help. We wanted to avoid even the appearance that we are motivated by personal gain….We hope you agree that it is not fair that any single family should shoulder the entire burden of waging an expensive legal battle for truth and honesty on the public airwaves, especially when the opponent is the biggest, richest media empire in the world’.”

Hence, not only is it false that we immediately (upon filing suit) began any fundraising campaign, we hope you would agree that no fair and honest journalist would characterize our effort to defray legal fees as “vigorous.” 

The truth is that virtually the sum total of our fundraising effort since it was posted nearly a full year after filing suit extends nowhere beyond a portion of a single page on our website.  And even there (again, please see Exhibit #3), our suggestions for supporting our efforts included a suggestion that supporters volunteer their time to help with publicity, organization, and legal assistance. We suggested supporters contact Monsanto and Fox directly.  And the appeal also invited requests for speaking engagements—and said, in part, “Here are two lively and riveting speakers who don’t ask for big fees politicians and media stars lap up on the rubber chicken circuit…”  We went on to say we would be happy just to tell the truth to those who were interested and pass a hat when we were done. 

There were no handbills.  No mass mailings—in fact never even a single personal letter to anyone for the purpose of soliciting contributions.  No ads.  No direct solicitation of anyone, anywhere, anytime.  No application for any kind of grant, although we did once ask SPJ to extend token support from its Legal Defense Fund which they had done in similar cases before.  (They turned us down on the grounds ours was an “employment dispute” and not related to First Amendment issues, although the organization did bestow on both of us its rare Award For Ethics.) 

 But the point is that by no stretch of any fair or objective standard could it be accurately reported that we “immediately began a vigorous” effort to raise funds. 

We request a correction of this false statement in your published report.

3.      To turbo charge their fundraising following defeat of their lawsuit, they claim they'll have to pay Fox's legal costs, as much as $3 million. That's a gross exaggeration. Fox won fees only for the relatively minor portion spent during the appeal of a jury decision.

Several of these statements are false.

First, it is not accurate to report that we claimed we’ll “have to pay” Fox’s legal costs.  What we have repeatedly said, indeed what is clearly printed on the webpage, is this: (again, please see attached Exhibit #3)

“…Florida’s Second District Court of Appeal has issued a ruling which could ultimately lead to an order that we are liable for Fox’s court costs and legal fees which could amount to maybe $3 million, all told.”

Reporting as fact that we “claim we’ll have to pay” Fox’s legal costs is contrary to what we actually said, namely that a ruling “could ultimately lead to” an order that we are liable for maybe $3 million all told.  We request a correction of this false statement you have published.

Moreover, it is also false to conclude that our estimate of $3 million in potential legal liability is “a gross exaggeration” because Fox has won fees only for the relatively minor portion spent during the appeal of the jury decision. 

This is demonstrably false because while a court has already issued an order (now under appeal) granting Fox’s motion that we pay its legal fees and costs of the appeal, still pending at the trial court level is a separate Fox motion that we pay all its trial costs and fees, too.  That motion has not been withdrawn and very well could still be granted by the trial court when it ultimately takes back the case from the Second DCA.  It has been held in abeyance only pending a final determination of the appeals still in progress.

So, the chance that the trial court could ultimately grant the still-pending motion for trial costs and fees, coupled with the possibility that the DCA order for appeal costs and fees could itself be upheld on appeal, a $3 million estimate of our potential legal liability is no exaggeration, gross or otherwise.  I have explained all this too, in detail, to Mr. Sugg (please see attached Exhibit #4).

We request this false statement, again published as fact, be corrected.

4. So, when Wilson and Akre late last year quietly purchased a 5,000-square-foot, $1.4 million luxury townhouse near Jacksonville, Fla., the press critics were out to lunch.’

These facts are not accurate as published.  If Mr. Sugg and Creative Loafing intend to report the public record, is there a reason it shouldn’t be reported accurately as it exists at the primary source of such documents?

The property is not a “5,000-square-foot…luxury townhouse.”  The public record, easily available in your office by accessing the website of the St. John’s County (Florida) Property Appraiser’s office, clearly shows: (please see attached Exhibit #5)

Use Code/Description:  100/SINGLE FAMILY

      Furthermore, the record shows:

          Heated/Cooled Area:          5209   
                  Adjusted Area:          5865

It may seem as though we are shooting ourselves in the foot to point out a record that links our names to a single family home that is even larger than Mr. Sugg reported.  But apart from our desire to see all aspects of our story covered accurately, we are most troubled by what this error represents, as I discussed in my cover letter sent with this list. 

In any event, we request a correction of this inaccurate report you have published.  Also, we respectfully suggest that it include the fact that Mr. Sugg printed his inaccurate description after he was advised by us that his information about the property was wrong, yet he nonetheless failed to go to the primary source to obtain accurate information to report to your readers.  Instead, he arrogantly relied on the conclusion that even if his published report turned out to be wrong in any respect, he would still be legally bullet-proof, as he explained in an e-mail to me:  (see attached Exhibit #6)

  “I hate to remind you of Journalism 101, but public records enjoy a privilege.  Quoting accurately, even a reasonable interpretation, from a public record is a near-absolute defense.”

 We believe that only a correction that includes the information above will allow your readers to determine on their own whether your columnist may have been blinded to common journalistic and ethical standards in his zeal to accuse and discredit us.  Only then do readers have a proper context within which to judge the veracity of Mr. Sugg’s many published conclusions and his opinions in this matter.   

5. When confronted with the records, Wilson last week refused to disclose any accounting of money he collected for the lawsuit.

While this may be true, it grossly violates journalist’s Code of Ethics adopted by the Society of Professional Journalists which says reporters (even columnists) should be honest, fair and courageous in gathering, reporting and interpreting information. 

Summarizing our responses to serious allegations and implications by allowing Mr. Sugg to merely publish: “Wilson last week refused to disclose any accounting of the money he collected for the lawsuit,” is far from an honest and fair report or interpretation of the response we actually provided. 

For instance, here is a key question Mr. Sugg posed to us: (please see attached Exhibit #7)

“…is there any way you can assure supporters that money donated to you for legal expenses won’t be used to, say, furnish your mansion?”

Despite the inflammatory, argumentative and accusative nature of the question, we took the time to respond immediately with a clear denial of any wrongdoing, and even a statement that any donor of record at the time was welcomed to a full accounting of every penny spent from the fund.  In part, we said in our statement Mr. Sugg largely ignored: (please see attached Exhibit #8)

“Here’s what we said about money accepted for deposit into the Citizens’ Fund For The Right To Know: “Every penny contributed to this fund goes to pay legal expenses remaining from the trial as well as continuing expenses related to the appeal process—paralegals, transcripts of testimony, etc—only the direct expense of this lawsuit.  Jane and Steve receive none of these funds for their personal use.”

  We have painstakingly kept that promise.  And although your skepticism in this regard has yet to be raised by even a single donor to date, you may report that any one of them is welcomed to a full accounting of every dime expended from that account.”

You don’t have to be an experienced journalist to see that it was neither accurate, honest, nor fair to condense our categorical denial of wrongdoing and offer to document expenses to any donor of record on that date to a simple report that “Wilson refused to disclose any accounting of the money…”  

Accordingly, we ask that you correct your published report in this regard to fairly and honestly report initial response, correcting the grossly incomplete and misleading summary your columnist provided.

6.      That inclusion (of Monsanto’s position on the safety of its bovine growth hormone) is what Wilson and Akre decry as "distortion" or depict on their website as a "lie."

This is inaccurate and misstates the entire thrust of our position which the jury clearly understood and Mr. Sugg apparently does not.

There is plenty of evidence and testimony introduced at trial showing, contrary to Mr. Sugg’s conclusion, we never sought to eliminate Monsanto’s position from any report we ever prepared while at Fox.  To document this fact, we have attached as Exhibit #9 the final “Reporters’ Version” scripts we ultimately proposed to broadcast, the same ones introduced as evidence at trial. 

For comparison, we have also attached as Exhibit #10, the version we were pressured to broadcast, another document in evidence at trial, with the red print showing our objections to which we also testified. 

While this may be much more detail than you wish to get into, if you could take just a moment to look at our proposed script (Exhibit #9) for only the first part of this multi-part broadcast, I think you can judge whether Mr. Sugg’s reporting in this regard is fair and accurate.  We call your attention to:

a.      Monsanto’s statement which follows Narration #5 in Part 1 on page 2

b.     Monsanto’s statement which follows Narration #8 in Part 1 on page 3

c.     Monsanto’s statement which follows Narration #9 in Part 1 on page 4

If you thumb through the additional scripts we proposed, you will see Monsanto’s position clearly and repeated included in each and every one of the four parts we proposed to broadcast.

The distortion we complained of were the directives from Fox news and station management who wanted us to broadcast the Monsanto position without including the clear evidence we uncovered that directly contradicted many of the company’s claims.  If you have the time, you will see our objections printed in red on the so-called “Mandated Scripts” which are Exhibit #10.  (One quick example: Monsanto claimed milk from rBGH-treated cows was “the same, safe, wholesome product we’ve always known”—but incontrovertible scientific research we discovered, including some of Monsanto’s own, showed the milk was different, its composition materially changed by the injection of artificial hormones).

Indeed, we agree with Mr. Sugg’s conclusion that “if a reporter feels a source isn't being candid, the solution isn't to snip the material, but to build a case with facts that expose the deception.”  As you can see from the scripts Fox refused to allow us to broadcast, this is exactly what we attempted but were not allowed to do.  It was, we believe, the foundation of the jury’s ultimate finding.

We request that you correct Mr. Sugg’s erroneous reporting in this important regard.

7.      The jury, said Akre, "reasonably believed [the station-approved script] would violate the prohibition against intentional falsification or distortion of the news ...." Wilson/Akre twist the jury finding to state that Fox actually did distort the news and lie.

The verdict does not say—and hence the jury did not decide—that Jane reasonably believed the news broadcast was false, distorted or slanted.  In fact, they could have never reached a verdict in her favor and awarded substantial damages had they not believed the story at the heart of the dispute was false, distorted or slanted.  Why would jurors believe she was entitled to a dime if they didn’t first conclude that the story at the heart of the whole dispute was indeed false, distorted or slanted?  Had we put up such a fuss over a story they saw as fair and accurate, wouldn’t they have reasoned that neither of us was entitled to a thing?  But more critical to the point here: what those jurors determined she “reasonably believed” was only that actually broadcasting the reports would violate prohibitions against intentional falsification or distortion of the news on television if it were aired.  Mr. Sugg’s twisted logic unfairly leads viewers to the conclusion that the falsity of the report was no more than a “reasonable belief” in her head. 

The report you have published which states as fact that we have twisted the jury finding is therefore not true.  We request a correction.