PRIMETIME LIVE
June 14, 1995
(see also The Jackson Jive by Maureen Orth)
“The Get”[1]
When Diane Sawyer was lured from 60 Minutes to anchor PrimeTime Live, the new show enjoyed much success, due largely to Sawyer’s reputation. But as the news magazine format began to proliferate, PrimeTime began drowning in a flood of competition. By 1995, the year of the Jackson interview, the show had declined from 18 to 87 in overall ratings.
The timing couldn’t have been worse. Sawyer was in line to become the first solo female network-news anchor in the history of television, and ABC had just renewed her contract to the tune of $7 million.
As ABC struggled with the show’s decreased ratings, there was concern that some at PrimeTime were losing sight of their primary mission.
ABC’s upper management has begun worrying that too many people inside ABC News have become more obsessed by ratings than journalism. . . . Paul Friedman was so worried about this preoccupation that he even brought it up at a lunch meeting he has begun holding with small groups of younger staff to discuss the news division. “But that’s what Phyllis and Diane talk about all the time,” a young staffer told him.[2]
As if on cue, along came Michael Jackson. Though his career had taken a nosedive since the 1993 scandal, he was still fabulously well-known and controversial. So much so that to the ratings-driven media he was still a “Get” – a super hot property that could attract tens of millions of viewers. At the top of the “Get” list in 1995 were O.J. Simpson, Princess Diana and Michael Jackson.
PrimeTime‘s negotiations with Jackson began in January of 1995, six months before the interview. From his vantage point on the PrimeTime set, journalist Tom Rosenstiel witnessed the birth of the Jackson-ABC deal. “Hanging in the air this week is Michael Jackson. His people want more than the right show or the right amount of time. He wants to create his own show, a supershow, and he has opened the bidding by suggesting that he be interviewed in masse by Walters, Sawyer, Jennings, Howard Stern, and Oprah.”
What the lengths ABC were prepared to go, and how far they actually went, to get Jackson is detailed in this article – What ABC Gave To Get The Michael Jackson Interview
The Opening Monologue
News magazine shows incorporate a wide variety of programming, from fluff to hard-core investigative reporting. In the weeks leading up to the broadcast ABC promoted the interview as serious journalism, not entertainment. Sawyer reaffirmed that position in her opening monologue.
As the headlines raged a lot of people wondered if what had seemed merely eccentric was in fact something sinister. And the children always around him, were they lured by a seducer? The lingering question was, was Michael guilty, or had he been put through two years of unequaled injustice and hell? (Bold added.)
Sawyer then announced the standard of journalism and degree of honesty her audience could expect from PrimeTime in its efforts to answer “the lingering question.”
First I want to establish for the viewers here…there are no ground rules. You’ve [Jackson] said to me you are not afraid of any questions. So I wanted that understood by everybody before we proceed. I think I want to begin by making sure that the terms are clear. (Bold added.)
And later in the broadcast Sawyer called attention to the depth of PrimeTime’s investigation.
We have called everyone we could call, checked everything we could check. We have gone and tried to see if what we heard was, in fact, the case. (Bold added.)
Diane Sawyer was a premier journalist for one of the most respected news organizations in the world. Yet despite Sawyer’s and ABC’s impeccable reputation, PrimeTime went to great lengths – greater, perhaps, than any network news organization had even gone – to assure the viewers that they were going to hear the truth.
Sawyer continued her monologue,
This was the allegation. A twelve-year-old boy said that over a period of four months, while repeatedly sleeping alone in the same bed with Michael Jackson, there was kissing, then fondling, then masturbation. The boy said he had protested but Jackson had wept saying, it was alright, other boys had done it with him.
Then,
Those were the allegations. But for the prosecution there were problems. The boy had spoken at the urging of his father who was also seeking custody. [A video of Evan appears on the screen and remains as Sawyer continues.] And the father had talked to the Jackson camp about money – 20 million dollars, according to the Jackson team. This is that father talking to someone he knew on tape. [An audio of Evan’s voice, with his words printed below his picture.] “If I go through with this, I win big time. There’s no way I lose.” Whatever the circumstances of the disclosure, authorities say they believe the boy’s story. (Bold added).
In court ABC was asked to produce the evidence on which they based their claim that the prosecution had problems because of the reasons stated, all involving “the father.” ABC offered no evidence. Instead, it argued that the statement was Sawyer’s opinion, and that a journalist’s opinion is immune from liability.
A review of the transcript reveals that Sawyer’s statement was one of fact and contained no words to indicate that an opinion had been offered. ABC did not elaborate on how PrimeTime‘s audience could have known that Sawyer was expressing her personal opinion.
ABC also argued in court that Sawyer was merely repeating Jackson’s allegations, and that she had no legal obligation to investigate the truth of his allegations. But a review of the transcript shows that while Sawyer labeled Jordie’s claims against Jackson as “allegations,” she did not describe the claims against Evan as Jackson’s allegations. She described them as “problems for the prosecution.” Here, too, ABC did not explain in court how the viewers could have known these were Jackson’s allegations when Sawyer never mentioned that fact.
In any event, ABC’s legal arguments did not square with Sawyer’s on-air promises. How could PrimeTime answer “the lingering question” of Michael’s guilt by offering opinions? Why did PrimeTime assure the viewers that there were “no ground rules” and that Jackson was “not afraid of any questions,” or profess to have conducted an exhaustive investigation, if they felt no obligation to investigate the truth of the allegations?
ABC claimed that Sawyer’s monologue was even-handed because her statement that the prosecution had problems with Evan was balanced by her statement, “Whatever the circumstances of the disclosure, authorities say they believe the boy’s story.” On first blush, this assertion appears valid. But a review of the facts shows that while the authorities did believe Jordie, at no point did the authorities state that they believed Evan was talking about money on the tape.
The Interview
Omitting the Evidence of Child Abuse
In their legal briefs ABC drew the court’s attention to “the rather hostile questions that Sawyer put to Jackson about the allegations of molestation that (the father’s) son had made.”[3] (Underline in original.) Here are four of the entries from ABC’s “hostile question” list:
- Whether the police photographs of Jackson’s private parts matched the description provided by (the boy).
Here is Jackson’s answer.
JACKSON: There was nothing that matched me to those charges…Nothing.
SAWYER: So when we heard there was a marking of some kind?
JACKSON: No marking.
SAWYER: No marking?
JACKSON: No. Why am I still here then?
PRESLEY: You’re not going to ask me about that are you? About the markings?
SAWYER: You can volunteer?
PRESLEY: No. The point is when that finally got concluded that there was no matchup, then it was printed this big [she makes the tiny sign with two fingers] as opposed to how big it was, what the matchup was supposed to be.
In an article for the September 1995 issue of Vanity Fair, Maureen Orth reported that PrimeTime’s producers met with Santa Barbara County District Attorney Tom Sneddon prior to the broadcast to hear the evidence about Jackson. After the broadcast Sneddon was appalled at what he had heard from Jackson and not heard from Sawyer. He told Vanity Fair, “His (Jackson’s) statement on TV is untrue and incorrect and not consistent with the information in this case.”[4] The lead investigator on the case, Detective Bill Dworin, also knew there was a matchup, and he would have told that to PrimeTime had they asked.
Sawyer apparently knew that Jackson was lying, but she allowed his denial to go unchallenged. She also failed to ask Lisa Marie Presley where she had seen the report that there was no matchup and who had reached that conclusion. The only conclusion that mattered, of course, was that of the authorities. Given ABC’s all-inclusive investigation, PrimeTime knew or should have known that the authorities had concluded there was a matchup.
- Whether the police had found photographs of nude young boys in their search of Jackson’s home.
SAWYER: As you may or may not know, we have called everyone we can call, checked everything we can check. We have gone and tried to see if what we heard before is in fact the case. I want to ask you about two things. These reports that we’ve read over and over again that in your rooms they found photographs of young boys.
JACKSON: Not young boys, it was children, all kinds of children.
SAWYER: That they found photographs, books of young boys who were undressed.
JACKSON: No.
SAWYER: Didn’t happen.
JACKSON: No. Not that I know of. Unless people sent me things that I haven’t opened. . . .
SAWYER: So people say they found those things, that there’s an indication, let them come forward and let them produce them, right?
JACKSON: Yeah…
DA Sneddon told Vanity Fair that “The statement that there were no books or photos of nude children on his premises is incorrect. It is not truthful.” Vanity Fair reported that,
Investigative sources say police found a lewd, commercially published hardcover book of black and white photos of nude boys aged about 7 to 12 “at play,” and according to one, that book “is often found in the homes of pedophiles.” There was also a picture of a nude little boy, scantily draped with a sheet, found in Jackson’s bedroom.[5]
This time Sawyer did not simply remain silent in the face of Jackson’s lie, she appeared to support it by challenging those with photographs to come forward and produce them. As if DA Sneddon never existed!
At no point in ABC’s legal briefs did they deny that Sneddon had provided the evidence reported in Vanity Fair. In fact, ABC completely ignored the specifics of Sawyer’s omissions and relied solely on the argument that Sawyer was not legally obligated to reveal this information. Even if this legal claim was true, it did not relieve ABC of its promise to provide a full account of their investigation.
- Whether settlements with other young boys are likely.
Jackson answered: “No, that’s not true. No, no, no that’s not true. . . .” Once again, Sawyer allowed Jackson’s denial to go unchallenged. Yet Vanity Fair reported that Jackson was in the process of negotiating a confidential settlement with another boy. In January, 1995, it was reported that Jackson had made an offer of $1.5 million to a child in Santa Barbara.[6]
- Whether Jackson had ever fondled, or had sexual contact with (the boy) or any other child.
Jackson answered, “That’s not true. No. No. No. That’s not true.” Sawyer let the answer stand, never challenging Jackson with information contained in the DA’s public statement of September 1994.
Investigatory efforts uncovered additional allegations of sexual misconduct occurring between Mr. Jackson and a second boy. . . (and) also revealed the existence of a third alleged victim.
The DA’s statement was certainly relevant to “the lingering question” of Jackson’s guilt. Sawyer’s failure to confront Jackson with this evidence was not in keeping with her assurances that there were “no ground rules” and that Jackson was “not afraid of any questions.” Nor was it in keeping with her promise to reveal the results of PrimeTime’s investigation.
PrimeTime did play a clip from the DA’s statement later in the broadcast. But, as with the tape of Evan, PrimeTime played one sentence, out of context, and then used it to support a false claim. (Discussed below.)
Other Unreported Facts
At no point did PrimeTime report any of the following established and published facts of the Jackson case.
- Jackson asked the court for a six-year postponement of Jordie’s lawsuit until the criminal statute of limitations on child molestation had expired.
- Jackson told the court that he would take the Fifth Amendment if Jordie’s lawsuit went forward.
- Jackson asked the court not to allow the evidence gathered in the civil suit to be turned over to the district attorney for use in a criminal trial.
- In 1994 Barry Rothman filed a defamation action against Jackson, Bert Fields and Anthony Pellicano. Fields claimed that he was immune from liability because, as an attorney, he was at all times involved in legitimate negotiations to settle possible civil claims that the Chandlers might have against Jackson. This was not only the Chandler’s position all along, it was the conclusion reached by the district attorney.Fields’ position in the courtroom in 1994 was directly opposite to the position he took on Jackson’s behalf in 1993. Sawyer, who claimed to have checked everything she could check, did not report this information.[7]
- Also in 1994 several members of Jackson’s former security team sued him for wrongful termination. They claimed they were fired because they knew too much about Jackson’s relationships with little boys.[8] But under oath in a deposition, Jackson invoked the Fifth Amendment to questions about his relationship with young boys.[9] This was the perhaps the most damning evidence of Jackson’s guilt. Even Jackson’s attorney, Johnnie Cochran, effectively acknowledged that this meant Jackson was guilty.[10]
In short, after Sawyer promised a “no holds barred,” “no ground rules,” “afraid of no questions” interview, and after she claimed that PrimeTime had “called everyone we could call, checked everything we could check,” PrimeTime did not reveal even one piece of hard evidence indicating Jackson’s guilt.
Omitting the Evidence Against Extortion
A review of the transcript reveals that after the opening monologue not another word was said about the prosecution’s so-called problems with the father. Sawyer had that stated that those problems existed because Evan had asked Jackson for $20 million and because he said on the tape “If I go through with this, I win big time. There’s no way I lose.”
At no point in the broadcast did PrimeTime mention the District Attorney’s public statement exonerating Evan Chandler.
“We’ve declined to file today criminal charges of attempted extortion,” said Michael J. Montagna, a deputy Los Angeles County district attorney who heads that office’s organized crime unit. “The evidence does not show that any crime has been committed. … Montagna also said that discussions between Jackson’s representatives and Barry K. Rothman, the attorney for the boy’s father at that time, appeared to be attempts to settle a possible civil suit, not efforts to extort money. “It’s not a crime for lawyers to try to settle a civil action,” Montagna said. “The law actually favors trying to settle actions without going to court.”[11]
(As mentioned earlier, Bert Fields made the same claims in his defense to Rothman’s lawsuit.)
After Pellicano and Weitzman played the tape of Evan to the world, the Los Angeles Times reported that “At no point, however, did the boy’s natural father spell out what he might want from Jackson or detail any allegations against Jackson.”[12] Even GQ reported that “(the father) never mentioned money during their conversation.”[13]
Sawyer mentioned none of this.
Also unreported by Sawyer was Pellicano’s admission that the first mention of money did not occur until August 4, six weeks after the July 8 tape was recorded. “At this point I never heard any extortion, I never heard any demands,” Pellicano said.[14] When money was mentioned for the first time, on August 4, it was part of the talks that both Bert Fields and the police identified as legitimate negotiations to settle civil claims.
In January of 1994 Larry Feldman and Johnnie Cochran held a press conference to announce a settlement of the civil suit. At that time Jackson withdrew his extortion charge against Evan, but Jordie did not withdraw his molestation charge against Jackson. The statements made at the settlement conference were worked out by the lawyers beforehand, and the unilateral retraction was significant, yet PrimeTime omitted the entire event.
But the clearest evidence that Evan was not referring to money on the tape is the tape itself. A review of the transcript indicates that Evan was talking about winning custody of Jordie, not money from Jackson.
SCHWARTZ: But when you say “winning,” what are you talking about winning?
CHANDLER: I will get everything I want, and they will be totally — they will be destroyed forever. They will be destroyed. June is gonna lose Jordie. She will have no rights to ever see him again.
SCHWARTZ: Yeah.
CHANDLER: That’s a fact. That’s what – –
SCHWARTZ: Does that help?
CHANDLER: – – Michael the career will be over.
SCHWARTZ: Does that help – – .
CHANDLER: Michael’s career will be over.
SCHWARTZ: And does that help Jordie?
CHANDLER: It’s irrelevant to me.
SCHWARTZ: Yeah, but I mean the bottom line is – –
CHANDLER: The bottom line to me is, yes, June is harming him, and Michael is harming him. I can prove that, and I will prove that – –
SCHWARTZ: Yeah.
CHANDLER: – – and if they force me to go to court about it, I will [tape irregularity], and I will be granted custody. She will have no rights whatsoever.
Why didn’t PrimeTime present Evan’s comment about winning “big time” in context? Why didn’t they report the district attorneys statement that Evan had committed no crime? Why did they fail to report Jackson’s withdrawal of the extortion charge? The answer to these questions cannot be found in ABC’s legal briefs. In fact, they ignored the specifics and argued instead that Sawyer was not legally obligated to report any of these facts.
Accordingly, plaintiff’s argument that ABC and Sawyer failed to include in their report a prosecutor’s assertion that pornography had been found at Jackson’s home, or failed to report a prosecutor’s assertion that the description by plaintiff’s son of Jackson’s genitalia matched police photographs, or failed to report that prosecutor’s had decided not to charge plaintiff with extortion, or failed to contact plaintiff or to explain his position, are all irrelevant (under the law).[15] (Bold added.)
This is an amazing defense for a network news organization, legally sound or not. ABC previously argued that while they felt no hesitation in reporting Jackson’s version, they were not legally obligated to investigate the truth of that version. Now they were arguing they had no obligation to report Evan’s version or the district attorney’s conclusions. In other words, ABC News believed it was permissible to report only one side of a controversy, regardless of whether that side was true or false.
ABC’s legal position is typical of high-profile defendants who are guilty as charged. Michael Jackson went on international TV to proclaim his innocence and accuse another of a crime. Yet in a court of law he did everything possible to avoid being placed under oath to prove his claims, even going so far as to invoke the Fifth Amendment. The American Broadcasting Company promised the American public an honest, hard-hitting interview that would reveal the evidence of an exhaustive investigation. But in a court of law, ABC’s entire defense was based on the claim that they were not required to do any of that.
Both Sawyer and Jackson were experts in using media to influence public opinion. They knew that Evan’s statement, “If I go through with this I win big time,” would have a negative emotional impact on the audience if they believed he was referring to winning “big time” money, especially when the implication is that he was using his child to extort Jackson.
Jackson’s goal was to convince the public that he was innocent so he could resurrect his career. To that end, it would carry less weight with the viewers if Sawyer had made it clear that it was Jackson who alleged that the father was talking about money on the tape. Nor would it be of value to Jackson for Sawyer to say that it was only her personal opinion that the prosecution had problems with the father, especially if she made it clear that her opinion was based solely on Jackson’s allegations in the first place.
But it would carry immense weight if a top journalist for a premiere news organization made it sound as if the prosecution had problems with the father because he had talked about winning “big-time” money and then asked Jackson for $20 million.
By the end of the interview, the tag-team of Sawyer/Jackson had eliminated all evidence pointing toward Michael’s guilt and Evan’s innocence.
“Cleared of All Charges.”
After failing to report the material evidence, Sawyer made the following statement to Jackson and to the audience.
I guess — let me ask this, and I’m trying to think of how to phrase it, though I can hear out in the country people saying — and you’ve been cleared of all charges and we want to make that clear — people saying, look, here’s a man who is surrounded by things that children love. Here is a man who spends an inordinate amount of time with these young boys. (Bold added)
Jackson, of course, had not been cleared of the charges. It is telling that Sawyer made that claim right in the middle of asking the most damaging question, the one everyone asked (and is still asking), why Jackson spent so much time with young boys.
In the November 8, 1996, issue of Entertainment Weekly, Sawyer admitted that the statement was incorrect. “That was an absolute mistake. I wish somebody had whispered in my ear, ‘You ignorant dolt, you just said he was cleared.’ Of course I knew [he hadn’t been].”
According to Sawyer, she made a slip of the tongue. But the transcript suggests otherwise. Sawyer stopped in the middle of one statement, injected the false claim, and then qualified that claim by adding “and we want to make that clear.”
What would Sawyer have done if someone had whispered in her ear? Would she have immediately corrected the mistake? Doubtful, considering that Sawyer did not retract the statement until eighteen months later, after ABC had been sued, and in a format with a minuscule circulation compared to PrimeTime‘s audience.
Incredibly, ABC ignored Sawyer’s admission and later claimed in court documents that her statement was accurate.
[T]he courts have accorded media defendants a “certain amount of literary license”. . . in determining what is a fair report. . . . [T]he literary license. . . surely allows the press to describe the prosecutor’s decision to decline prosecution as having “cleared” the subject of the investigation.[16]
The DA’s decision to decline prosecution was announced on September 21, 1994, in a written press release and at a TV news conference. PrimeTime played only one sentence of District Attorney’s speech: “We decline to press charges against Mr. Jackson at this time.” In their legal briefs, ABC argued that Sawyer captured the “gist” of that statement when she reported that Jackson had been cleared of all charges. “Cleared of all charges,” they claimed, conveyed the same meaning as “decline to press charges.”
But the district attorneys’ statement, taken as a whole, left no doubt that Jackson had not been cleared. The DAs said they had three boys whom they believed were victims. They said they would have charged Jackson if Jordie had been willing to testify. They said that the decision not to prosecute was not based on the credibility of the victims. And they said the case would be revisited should circumstances change. (A transcript of the DA’s statement appears at the end of this piece.)
The true “gist” of the statement is that the DAs believed Jackson was guilty. By no stretch of any reasonable mind does it say they cleared Jackson. Airing one sentence from the DAs’ statement out of context, then twisting it to mean that Jackson was cleared, is the same method ABC used when quoting Evan from the tape. And it suggests that Sawyer did not experience a slip of the tongue when she stated that Jackson had been cleared.
ABC argued in court that even if Sawyer did not capture the gist of the DA’s statement, her claim that Jackson had been cleared of all charges had nothing to do with Evan and he therefore had no valid legal complaint. In legalese, ABC claimed the statement was not “of and concerning” Evan. (For a statement to be defamatory it must refer to the person allegedly defamed, hence the legal phrase “of and concerning.”)[17]
This argument borders on the absurd. Jackson had shouted to the entire planet, “I am innocent, Evan Chandler extorted me!” And Sawyer told her viewers, “Those were the allegations [against Jackson]. . . but for the prosecution there were problems [with the father].” Later, she falsely exonerated Jackson. Where does that leave the prosecution’s problems with Evan? In the public’s mind the claims were mutually exclusive: if Michael was innocent, then Evan was guilty, and vice versa.
A year after the broadcast, Entertainment Weekly reported that up until that time Sawyer had been “reluctant to respond to her critics.” She was quoted saying,
I didn’t want to argue about it. I had off-the-record information that there were some ambiguities (about the case) in Jackson’s favor. . . We didn’t dismember him, but neither did a jury, which never got to hear the case. At the same time, we never gave him a free ride.[18]
Unlike O.J., there was no trial in the Jackson scandal, so neither a jury nor the public heard the evidence. All the more reason, though, why ABC should have revealed what they knew. Eighteen months after promising that there were “no ground rules” and Jackson was “not afraid of any questions,” Sawyer said she didn’t want to dismember him.
As to her claim that she never gave Jackson a free ride, consider the following exchange between Vanity Fair’s Maureen Orth, and Santa Barbara District Attorney Tom Sneddon.
How, I asked Sneddon, does Michael Jackson get away with all this.
“Why not,” he answered. “What’s the downside? Who is he going to get more exposure from, your article or the TV interview? They have to read your article. To listen to him, all they have to do is push a button. He’s got this huge public relations train behind him – they’re able to contour public opinion any way they want. There’s no downside for him.”[19]
Sneddon’s lament was correct. After professing ABC’s good-faith and honesty, Sawyer acted more as a shill for Jackson rather than as a journalist for the public. ABC probably did check everything they could check. They probably did know all the facts. They made a choice not to report them. Otherwise, there would have been no interview and no ratings.
The Deal
As Esquire and Vanity Fair reported, Jackson put himself up for bid to whoever would offer the most in return for the ratings he could guarantee. The bid, apparently, went to ABC.
Jackson’s deal with ABC included inducements beyond PrimeTime.
ABC had swapped the airing of 10 TV commercials – ads worth between $300,000 and $1.5 million - for the rights to “future Michael Jackson videos.” Such videos have never been of any commercial value in network TV, and are usually provided free. . . . The commercials ran in the week between Sawyer’s interview and the release of the album.[20]
In other words, ABC gave Jackson valuable network air-time (other than on PrimeTime), in return for which ABC received nothing of value. Would ABC really make such a lousy deal?
ABC News disavowed any prior knowledge of the deal, which ABC Entertainment said had been made after the interview was set. But surely someone at the top of ABC had to know about both. . . .
Executives at CBS and NBC said that Jackson’s handlers had clearly been looking for a “package.” . . . A producer from one network told me, “It’s difficult to believe there was no quid pro quo in the ABC deal. Jackson’s people approached a bunch of us. Basically they said, ‘Come back to us with a proposition, and not just what you can do with your news division’ that is not enough.'” . . . Even more curious was a sudden announcement in July (1995) that ABC would broadcast a half-hour program on Jackson.[21]
ABC’s excuse – the left hand didn’t know what right hand was doing – was weak at best, and a shameful lie at worst. The deal with ABC’s entertainment division was a straw deal designed to cover the real deal with the news division. ABC not only gave Jackson control of PrimeTime for use as an infomercial, they sweetened the deal with additional network airtime. The combined value of this airtime was many millions of dollars. (How much would ABC charge for a one-hour advertisement in prime time?) In return, Jackson agreed to do the interview.
But it was not just ad time for his album that Jackson received.
[M]any with a detailed knowledge of the case were appalled by what ABC News had let Jackson get away with, and by Sawyer’s lack of preparation or her inability to follow up within the format dictated by the Jackson camp.[22] (Bold added.)
It seems “fair and true” to say that ABC gave a child molester control over the content of a news broadcast in return for ratings and revenue.
The Court’s Decision
ABC’s defense to Evan’s defamation suit was essentially based on California Civil Code Section 47(d), commonly known as “the fair and true report privilege.” This law grants immunity to the media if they have produced “a fair and true report . . . of a judicial proceeding . . . or of anything said in the course thereof.” The judicial proceeding in question was Jordie’s original lawsuit.[23]
California courts have decided that the media need not report the exact statements that occurred in and out of the courtroom, as long as they capture the “gist and sting” of those statements. Thus, the “gist and sting” test is the legal criteria upon which a “fair and true” defense is judged. A Santa Barbara County Superior Court judge dismissed Evan’s lawsuit in its infancy with the following ruling: “The court found that the broadcast’s overall presentation was one which ‘captured the gist’ of the controversy between the parties up to that time.”
The case was dismissed before any discovery had occurred.[24] An early dismissal such as this comes dangerously close to trampling on due process rights.[25] Nevertheless, the judge agreed with following interpretation of the law as it appeared in ABC’s legal briefs.
The questions for this court is not whether plaintiff did, or did not, attempt to obtain money from Jackson by offering to keep quiet the allegations of molestation. The question for this court is not whether the taped excerpt supports, or does not support, a charge of extortion. Instead, the question is whether ABC and Sawyer accurately reported the “gist” of the allegations of extortion that Jackson and his representatives had made in the underlying civil suit, regardless of the truth or fairness of the allegations themselves.[26]
ABC’s argument, and the judge’s decision, may have been correct if Sawyer had actually reported that there were allegations against Evan made by the Jackson camp. But she did not. Instead, she talked only of problems for the prosecution.
In addition, by finding that PrimeTime ‘captured the gist’ of the controversy between the parties up to that time,” the judge interpreted the law as allowing ABC to report only what had occurred in 1993, without bringing the public up to date on the state of the facts as ABC knew them in 1995.
While it is true that a journalist is not required to reveal everything, partial disclosure should only be permitted if it does not result in a false picture of reality. As the U.S. Court of Appeals put it:
If the substantial imputations be proved true, a slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently than the actual truth would.[27]
Contrary to ABC’s contention, Sawyer did not offer her personal opinion that the prosecution had problems with Evan; she stated it as a fact, and by doing implied that the authorities believed Evan had engaged in wrongful conduct. Sawyer was therefore obligated (ethically if not legally) to inform the viewers of the authorities’ conclusion that Evan had committed no crime.
Such conduct by a worldwide news organization can be devastating for those in the crosshairs. Think of this way. In 2004 a journalist reports all of the damaging evidence uncovered in 1996 against Richard Jewell, the Atlanta bombing suspect. But the journalist neglects to state that Jewell was subsequently cleared. Would that be a fair and true report? Apparently so, in California.
ABC was in no danger of having its free speech rights chilled if the lawsuit had been heard on the merits (facts). At a minimum, discovery would have been appropriate.
California cases establish only that a court [the judge rather than a jury] may decide the “fair and true” issue as a matter of law when there is only one reasonable conclusion to be drawn from the undisputed facts. When reasonable minds could disagree about whether or not a report in a public journal is “fair and true,” summary judgment is improper.[28] (Italics added)
The judge apparently decided there were no facts in dispute, and that reasonable minds would all agree that ABC’s report was fair and true. If the judge was correct, then the “jury” of ABC’s media peers, who soundly criticized the interview, were all unreasonable minds.
Conclusion
ABC was correct when they argued that the law allows the media “a certain amount of literary license” and “flexibility.” In fact, the law provides the widest possible journalistic freedoms. But those freedoms do not exist to serve the media’s financial bottom line. They are privileges granted in recognition of the media’s vital role in keeping a free society informed. And the law should never permit the media to exercise those privileges in a manner inconsistent with its obligation to make a good faith effort to tell the truth.
At the age of five Michael Jackson began learning how to control the media. Twenty years later he had gained enough knowledge and power to exercise that control. In 1986, after the success of his sleeping-in-a-hyperbaric-chamber scam, Michael told his representatives, “I can’t believe people bought it. It’s like I can tell the press anything I want about me and they’ll buy it. I think it’s an important breakthrough for us.”[29]
By 1995 Michael Jackson desperately needed to clean up his image. So he got married, “bought” himself a network, and set about trying to “buy” the public once again.
STATEMENT OF DECLINATION ISSUED JOINTLY BY
THE DISTRICT ATTORNEY’S OFFICES
OF LOS ANGELES AND SANTA BARABARA COUNTIES
September 21, 1994
It became clear at the inception of the investigation into child molestation allegations against Michael Jackson that those allegations involved conduct that occurred in both Los Angeles and Santa Barbara Counties. Therefore, the Los Angeles Police Department, the Santa Barbara Sheriff’s Department, the Santa Barbara District Attorneys Office and the Los Angeles County District Attorneys Office participated in a joint investigation of those allegations.
After approximately one year, the investigation is now concluded. During the course of the investigation, approximately four hundred witnesses were contacted (some more than once) and additional thirty witnesses were called before grand juries in Los Angeles and Santa Barbara. Hundreds of “clues” from the public were probed. Much time was spent pursing potentially exonerating evidence as well as inculpatory evidence. Several leads were explored which later turned out to be false.
The first alleged victim who came forward and who was the catalyst for this criminal investigation is the same individual who filed and settled a civil lawsuit against Mr. Jackson. The factual allegations underlying the civil lawsuit are identical to those which would support a criminal prosecution.
However, at the present time this alleged victim has chosen to assert his rights under Code of Civil Procedure section 1219 and has declined to testify. This decision was not communicated to either prosecutorial agency until July 6, 1994. Until that time, the alleged victim had indicated his possible willingness to testify and we continued with our investigation.
During the last several months, investigatory efforts uncovered additional allegations of sexual molestation occurring between Mr. Jackson and a second boy. The particular events described occurred solely in Santa Barbara County. Therefore, any filing decision on those allegations would involve Santa Barbara.
As to those particular allegations, Santa Barbara County declines to file at this time, because of the inability of law enforcement to interview the alleged victim, because that child is beyond the reach of the court process, and because of the child’s prior general denial of any wrongdoing.
The investigation also revealed the existence of a third alleged victim who has been in psychological therapy since his disclosure to police in early November of 1993. He has alleged that Michael Jackson molested him on three occasions. Two of those occasions allegedly occurred in Los Angeles County beyond the statute of limitations, and the third occasion, within the statute, allegedly occurred in Santa Barbara County. In light of the primary alleged victim’s decision not to testify, and because of the third alleged victim’s reluctance to testify and in consideration of his psychological well-being, no charges relating to the third alleged victim will be pursued at this time.
Another aspect of the investigation involved accounts from several witnesses who allegedly viewed Mr. Jackson inappropriately touching children other than the alleged victims mentioned above. At no time did any of the children named confirm that such conduct occurred, and the credibility of those third party accounts is compromised by the fact that some of the sources of these accounts profited monetarily by selling their stories to the media.
In conclusion, we decline to file charges relating to any of the alleged victims at this time because of the legal unavailability of the primary alleged victim. We emphasize that our decision is not based on any issue of credibility of victims. Should circumstances change or should new evidence develop within the statute of limitations, this decision will be reevaluated in light of the evidence available at such time.
[1] Most of the facts in this section were taken from a January 1995 Esquire article, “Not Necessarily The News,” by Tom Rosenstiel. The article was published six months before the Jackson interview.
[2] Friedman was Executive V.P. of ABC News. Phyllis McGrady was Executive Producer of PrimeTime.
[3] Chandler v. Jackson (ABC, Sawyer) (1996) Santa Barbara Superior Court case # SM097360, ABC’s
Motion to Strike, p. 8.
[4] Maureen Orth, “The Jackson Jive,” Vanity Fair, September 1995; 116.
[5] Maureen Orth, “The Jackson Jive,” 116.
[6] Maureen Orth, “The Jackson Jive,” 118; Today, January 25, 1995.
[7] Rothman v. Jackson (Weitzman, Fields, Pellicano) (1994) Superior Court of Los Angeles, Case # SC32081. For more on this subject see Part Three of All That Glitters.
[8] Morris Williams v. Michael Jackson (1995) Superior Court of Los Angeles, case # BC 093593. Nicholas Riccardi, “Judge Lets Jackson Plead 5th,” Los Angeles Times, September 16, 1994; Maureen Orth, “The Jackson Jive.” The bodyguard’s lawsuit was dismissed because they had signed a contract precluding them from suing.
[9] Los Angeles Daily Journal, July 1994; Vanity Fair, September 1995.
[10] When Mark Fuhrman invoked the Fifth Amendment to questions about his use of the “N” word, Cochran appeared on the steps of the courthouse and proclaimed to the world, “What more does anyone out there need?” Cochran was merely reaffirming the obvious, only guilty people take the fifth.
[11] Jim Newton, “Boy’s Father in Jackson Case Won’t Be Charged,” Los Angeles Times, January 25, 1994
No doubt reported by ABC News as well.
[12] Chuck Phillips & David Ferrell, “Tapes Used to Allege Plot to Extort Jackson Released,” Los.Angeles
Times, August 31, 1993.
[13] Mary Fischer, “Was Michael Framed.” GQ Magazine, October 1994, 218.
[14] Maureen Orth, “Nightmare at Neverland.” Vanity Fair, December 1993, 132
[15] Chandler v. Jackson et al. (1996) Santa Barbara Superior Court case # SM097360. ABC’s Reply Memorandum, p. 2.
[16] ABC’s Motion to Strike, p. 9.
[17] Evan claimed that he was defamed by the broadcast as a whole, not by any one statement.
[19] Maureen Orth, “The Jackson Jive,” Vanity Fair, September 1995, 120.
[20] Maureen Orth, “The Jackson Jive,” 114.
[21] Maureen Orth, “The Jackson Jive,” 120. After PrimeTime ABC aired a 30 minute special on Jackson.
[22] Maureen Orth, “The Jackson Jive,” 120.
[23] The words “anything said in the course thereof” extends the statutory protection to a report of statements made outside the courtroom as well as inside, as long as those statements refer to events that are directly connected to the litigation. In this case, the out-of-court statements would include the tape of the Evan, the DA’s public statements, and any communications between ABC and the District Attorney.
[24] “Discovery” is the process by which one party to a law suit can obtain information from the other party. This includes, among other things, depositions and the right to see documents held by the other side.
[25] ABC’s Motion to Strike (request for dismissal) was filed pursuant to Cal. C.C.P. 425.16, the anti-SLAPP statute. (SLAPP is an acronym for Strategic Lawsuits Against Public Participation.) An anti-SLAPP motion initiates an automatic 30-day stay of all discovery and shifts the burden of proof to the plaintiff to show a “probability that (he) will prevail.” If the plaintiff fails to meet his burden, the case will be dismissed. The Catch-22 is that a plaintiff must meet this heavy burden without the benefit of discovery. To overcome this possible infringement of the plaintiff’s due process rights, subsection 425.16 (g) permits “specific discovery” at the judge’s discretion. The courts have acknowledged that “the discovery stay… literally applied in all cases might well adversely implicate a plaintiff’s due process rights, particularly in a libel suit against a media defendant.” Lafayette Morehouse, Inc. v. Chronicle Publishing Co., (1995) 37 Cal.App.4th 855, 867, 44 Cal.Rptr.2d 46, 54 (Italics added.).
The judge denied Evan’s discovery motion. The appellate court upheld the trial court’s decisions.
[26] Chandler v. Jackson, ABC, Sawyer, et al (1995) Superior Court of Los Angeles, case # SM097360; Defendants’ Reply Memorandum, p. 6.
[27] Crane v. The Arizona Republic (1992) 972 F.2d 1511, 1519 (9th Cir.)
[28] Dorsey v. National Enquirer (1992) 973 F.2d 1431, 1439 (9th Cir.)
[29] J. Randy Taraborrelli, Michael Jackson: The Magic and the Madness, Ballantine Books, 1991, 42 (Softcover).