Conan v. NBC Brings Back Memories of Rather v. CBS

It’s my last semester in law school, and one of the courses I’m enrolled in is Entertainment Law.  Hardly a pop culture buff, I didn’t quite know what to expect, but with heavy roots in constitutional and contract law, it’s turning out to be more interesting than originally imagined.  And, of course, the current very public feud going on between NBC, Jay Leno and Conan O’Brien, while certainly not news in the sense that the suffering in Haiti or the implications of today’s special election in Massachusetts is news, is timely nonetheless.

While I have yet to see any contractual language as it relates to the ongoing late night debacle at the White House’s favorite television network, the whole thing is reminding me of a much, much more fun legal controversy we saw unfold over the past few years.

The defendants included CBS Corporation, Viacom Inc., CBS President Les Moonves, Viacom Chairman Sumner Redstone and Andrew Heyward.  The plaintiff was Dan Rather.  And oh boy, does any mention of the case just make me laugh.

Roughly two years after Rather anchored his last evening news broadcast from his desk at CBS, he filed suit against CBS, Viacom, Moonves, Redstone and Heyward seeking $70 million in damages.  Against CBS, Rather asserted claims of breach of contract, breach of fiduciary duty and fraud, among others.  Against Viacom, he claimed tortious inducement of breach of contract.  And against Moonves, Redstone and Heyward, he asserted claims of fraud and tortious inducement.  He got none of it, and imagining his ire when the New York Appellate Division held that the complaint should be dismissed altogether makes me happy as a pig in slop.

Because, when it comes to the likes of Dan Rather, you just can’t spell “schadenfreude” without F-R-A-U-D.  Well, you can, but when you rearrange the letters a little bit . . . you get my point.

As I’ve mentioned several times in these pages, the catalyst for my fundamental shift from left to right and then right off the traditional spectrum was a fantastic book by former CBS News correspondent Bernard Goldberg.  The first part of the book so brutally excoriates Rather for his overt liberal bias and overall grumpy attitude that, when news broke that he had knowingly broadcast details from forged documents in order to intentionally smear former president George W. Bush less than two months before polls opened in the 2004 presidential election, it came as no surprise.  (I’d provide a quote or two from Goldberg’s book, but a cursory glance around my home office tells me that I’ve lent out even the copy I’d swore to keep for myself after having given away at least a half-dozen copies before.)

If you’re not familiar with the underlying facts behind the case, here’s a glimpse.

After what seemed like a lifetime of bringing his own liberal activism into living rooms across the fruited plain, the successor to Walter Cronkite–often deemed “The Most Trusted Man in America”–finally met his Waterloo on September 8, 2004 when, on a Wednesday broadcast of 60 Minutes, Dan Rather exposed what he told American viewers was “exclusive information, including documents” which purportedly proved that then President George W. Bush skipped out on some of his duties as a Lieutenant in the Texas Air National Guard.

It wasn’t long before the documents were posted on CBS News’ Web site, and it didn’t take long after that before folks across the World Wide Web began to tear the suckers apart.  Rather alleged that the documents had come from the now-deceased Lt. Col. Jerry Killian, Bush’s commanding officer during his time with the Guard, but typography experts said almost immediately that the documents were fake.  The documents weren’t obtained by Rather himself–a CBS News producer had procured them from a former officer in the Guard–but he stated firmly on-air that the documents “were taken from Lt. Col. Killian’s personal files” and that they had been authenticated by experts retained by the network.

Over the following fortnight, as the documents were looking more and more suspect, Rather stuck with the story.  Those poking holes in the facade were dismissed as right-wing nuts and partisan hacks.  Even in his formal apology on September 20, 2004, Rather wouldn’t admit that the material was forged, only that they could not be authenticated.  In fact, a year later at the National Press Club, Rather maintained that the story was accurate, and even when Rather appeared with Larry King on CNN almost two years later, he chose to dismiss as “a diversionary technique” the exposure of his own malfeasance, and attack those who did so.

On Wednesday, November 3, 2004, the day after George W. Bush was re-elected for a second term [during which he would abandon free market principles and lay the groundwork for the financial mess exacerbated by Barack Obama and the Democrats], Rather was informed that he was going to be canned.  On November 23, CBS formally announced that Rather would be stepping down from his anchor position at the CBS Evening News, a move undoubtedly motivated by Rather’s rush to air forged documents in an attempt to damage President Bush at a crucial time.

Dan Rather’s final broadcast as anchor of the CBS Evening News came on March 9, 2005.  It wasn’t until September 2007 that he filed suit.

The same bias that Rather was unable to control on the air was present even in his complaint.  In the filing, Rather alleged that the network only disavowed the September 8, 2004 broadcast after being hounded by supporters of George W. Bush, and that he was fraudulently induced into not only apologizing on air for the broadcast but also remaining publicly quiet as to his personal belief regarding the authenticity of the report.

His contract with CBS, Rather alleged, required that should he be forced from the anchor desk for the CBS Evening News, CBS would either make him a regular contributor on 60 Minutes or without delay pay all amounts due under the contract and release him to work elsewhere — and that the network instead made a conscious decision to keep him around but off the air with regard to important news events until he was fired in May 2006. The astronomical amount sought by Rather in damages–$70 million–was supposedly designed to offset wrinkles in his reputation “for journalistic excellence and independence” and to compensate for lost opportunities during the period when Rather was kept in a storage locker (not literally, of course).

So the central themes of the controversy were whether CBS honored the original contract by properly reassigning him, and whether he should have been free to take his bias talent elsewhere during that period of time.

The defendants filed motions to dismiss the claims, and while the trial court granted the motions to dismiss the claims of fraud, breach of the implied covenant of good faith and fair dealing, and tortious interference with contract, the court denied the defendants’ motions to dismiss the breach of contract and breach of fiduciary duty claims. The appellate court, however, held that the complaint must be dismissed in its entirety.

On the breach of fiduciary duties claim, the claim that CBS owed Rather duties beyond those set forth in the contract, CBS argued that according to the law in the state of New York an employment relationship does not translate into a fiduciary relationship.  There were no special circumstances that would create that relationship, despite Rather’s argument that his service “as the public face of CBS News” created one.

With regard to the claims of fraud, CBS stated that they were without merit — and the network was right.  The fraud claims were dismissed by the court because Rather failed to allege specific loss (rendering measurement of damages impossible in that regard), and because of the mere speculative nature of any evidence connected with what he supposedly gave up due to any misrepresentations compared with what he actually earned.

On the breach of contract claim,CBS argued that there was no obligation to provide Rather with any specific assignments and that, because the network continued to keep him on the payroll, it was not responsible for any lost opportunity costs. The appellate court held that the network was in compliance with the agreement to either assign Rather to 60 Minutes or immediately pay the amount due on his contract — the network, after all, continued to pay the former anchor his $6 million per year salary in exchange for work done in different divisions, and the original contract said nothing of actually using Rather’s services, so long as he was assigned and paid.  Here’s how the court puts it:

Contractually, CBS was under no obligation to “use [Rather's] services or to broadcast any program” so long as it continued to pay him the applicable compensation.  This “pay or play” provision of the original 1979 employment agreement was specifically reaffirmed in the 2002 Amendment to the employment agreement.

With regard to Rather’s claim that the network owed him for lost opportunity and reputation, the court was also quick to dismiss:

Rather’s claim for lost business opportunities due to CBS’s failure to release him to seek other employment is insufficiently supported.  Since, according to Rather’s own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time.  Rather’s claim for damages for loss of reputation arising from the alleged breach of contract is not actionable.

Frankly, if anybody could be held liable by Dan Rather for loss of reputation, it’s Rather himself.  For Newsmen like Rather once was, credibility is currency.  And it’s even easier to squander than it is difficult to earn.  Rather’s predecessor, Walter Cronkite, was himself a flaming liberal but, for the most part during his time behind that desk at CBS, the average American viewer would not have known it.  Rather, however, wore his personal liberal bias on his sleeve.

At the end of the day, it was his lack of objectivity which was Dan Rather’s undoing.  He didn’t care whether or not the Killian documents were authentic — he had his man, and within two months of the election to boot.  Sadly, Rather’s brazen slap in the face of responsible journalism has set the tone for what we currently see in the mainstream press.  Headlines are huge but retractions–if they run at all–are tiny and buried deep within a newspaper, and we see a rising tide of activists masquerading as journalists, waiting for a chance to throw fact and reality under the bus in exchange for that elusive “get.”

We saw it when The New York Times ran a front page hit piece on 2008 GOP presidential nominee John McCain based entirely on anonymous sourcing–not a single name–and insinuating that he was involved in an extramarital affair with a lobbyist.  We saw it when MSNBC ran a package about white racist Obama protesters who were bringing semi-automatic rifles to presidential events — except the network cropped out the part of the image showing that the rifle-toting protester was in fact a black man. We’ve seen it time and time again, with each new news day bringing a fresh round of agenda setting and creative omission.

Will it ever stop?  Not so long as folks like Dan Rather are around, and not so long as embarrassments to journalism like Rather continue to receive only a lucrative slap on the wrists for violating the people’s trust.



  1. Gail B. says:

    My first husband was a journalist and then political editor for WMAZ Radio and TV in Macon, GA. He often spoke of “believability” on the part of the news anchor, and he really admired Walter Cronkite.

    I forget now who the politician was who came to Atlanta, but I believe it was Richard Nixon. News crews came from everywhere for the event. Tim had his camera and lights set up, and Dan Rather needed an electrical outlet and UNPLUGGED Tim’s equipment with the explanation, “I need that outlet–I’m Dan Rather.”

    Tim (who was 5’4″ in stature) told him, “Well, I’m Tim Dobbs, and I got here first. Go find your own place to set up” and took the outlet back from Rather. Tim was not kind in his description of Rather, saying that he was arrogant, pushy, and has a really bad attitude. For that reason, I never did like Rather. I was hoping that Roger Mudd would sit in Cronkite’s seat on the CBS Evening News. After that, Mudd sort of disappeared from the TV screen.

    After Rather pulled his stunt re George W. Bush, his believability was gone, his asset of believability vanished.

  2. Anonymous says:

    It is so nice when people, such as Rather, just fade away. The sooner with Obama the better.

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