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By Laurence Zuckerman
In one of the largest and most unusual settlements
by a news organization, The Cincinnati Enquirer published an apology
across the top of its front page and said it had agreed to pay
Chiquita Brands International Inc. more than $10 million to avoid
being sued for a series of articles that were highly critical
of the fruit company's business practices.
The articles, which appeared in an 18-page
special section on May 3, were partially based on 2,000 internal
voice mails that were said to have been obtained from "a
high-ranking Chiquita executive." But the newspaper, after
initially defending its yearlong investigation of Chiquita, said
yesterday that it was now convinced that the voice mails had in
fact been stolen from Chiquita and that it had renounced the articles.
The Enquirer also said it had dismissed the
reporter who led the investigation.
"The facts now indicate that an Enquirer
employee was involved in the theft of this information in violation
of the law," said the apology, which was signed by Harry
M. Whipple, the paper's publisher, and Lawrence K. Beaupre, its
editor.
Still, it was unclear how much of the information
in the Enquirer articles was inaccurate.
The newspaper said that as part of the settlement
with Chiquita, it would publish the apology again tomorrow and
on Wednesday. Separately, it is continuing an internal investigation
of the articles to determine if other reporters are guilty of
wrongdoing. Hamilton County, which includes Cincinnati, has also
appointed a special prosecutor to investigate the case.
The settlement alone ranks among the highest
ever paid by a news organization. But it is also unusual because
Chiquita had not yet taken any legal action against the Enquirer,
which is owned by the Gannett Company, the country's largest newspaper
chain.
"There have been settlements in substantial
amounts after someone has lost a lawsuit," said Floyd Abrams,
the well-known First Amendment lawyer, "but I can't think
of a situation in which a publication has been obliged to pay
a figure on the order of $10 million in circumstances in which
there was never litigation."
But by saying that information was stolen
from Chiquita, Abrams added, the Enquirer was on weak legal ground.
"A great deal of aggressive newsgathering may be protected
by the First Amendment but stealing isn't," he said.
The Enquirer's apology comes in the wake of
other admitted lapses on the part of news organizations.
Two weeks ago, The Boston Globe asked for
the resignation of a columnist, Patricia Smith, after learning
that she had fabricated quotations and people in four columns.
Earlier this month, The New Republic magazine said one of its
writers, Stephen Glass, had fabricated parts or all of 27 of the
41 articles he had written.
And last Monday, the managing editor of Time
magazine, Walter Isaacson, said that doubts raised about the accuracy
of a recent Time article written by Cable News Network journalists
were serious enough that Time's editors had ordered a further
investigation.
The Enquirer articles accused Chiquita, formerly
known as the United Fruit Company and the world's largest banana
producer, of a variety of unsavory practices. Among the charges
were that the company secretly controls dozens of purportedly
independent banana companies, that its executives bribed officials
in Colombia, and that careless use of pesticides had harmed the
health of hundreds of workers and ordinary people.
Chiquita, which is based in Cincinnati and
is controlled by the financier Carl H. Lindner Jr., vigorously
denied these allegations.
Despite the paper's apparent abject surrender,
the settlement appears to leave some doubt about the extent of
the articles' accuracy.
Chiquita, in a statement, hailed The Enquirer
for acknowledging "that the conclusions in the articles were
untrue." But Whipple, the publisher, said in an interview
yesterday that - although he had not heard them - he was convinced
that the voice mails were real.
"We are not aware of anything to suggest
that this is an instance of a reporter fabricating something,"
he said.
"We arrived at the decision to apologize
to Chiquita because we feel that the end product of the series
was tainted by the unethical and illegal means by which the voice
mails were obtained," he added. "Breaking the law and
lying to one's employer have no place at the Enquirer and therefore
we were unable to stand behind the stories."
In an editor's note that appeared on the day
the articles were published, Beaupre wrote that Mike Gallagher
and Cameron McWhirter, the principal reporters involved in the
investigation, traveled to Costa Rica, Honduras, Panama, Belgium,
Canada and two small Caribbean islands and conducted scores of
interviews.
In addition to numerous interviews with Chiquita
executives who spoke on condition of anonymity, Beaupre cited
"more than 2,000 copies of taped voice mail messages"
that were supplied by a high-level source who was "one of
several executives with authority over the company's voice mail
system."
But Chiquita said after the articles appeared
that there is no executive who has such authority over the company's
voice-mail system. The Enquirer said it was now also convinced
that no such executive existed and said that the voice mail messages
were stolen by Gallagher, who was dismissed on Friday.
It is still unclear how Gallagher obtained
the voice mail messages. Whipple and a spokesman for Chiquita
declined to comment, citing the continuing investigations.
The Enquirer's apology said Gallagher had
hired a lawyer. He could not be reached for comment.
Gallagher, 40, joined the Enquirer in 1995.
The following year, he wrote a highly regarded series on problems
with the cleanup of the uranium-processing plant at Fluor Daniel
Fernald Inc. Before that, he was a reporter at the Gannett Suburban
Newspapers in Westchester, where Beaupre had been an editor. One
editor who worked with Gallagher at the Westchester papers and
requested anonymity said Gallagher was recruited by Beaupre to
come to Cincinnati.
In Westchester, Gallagher made his reputation
covering a number of high-profile cases, including charges of
corruption at Rye Playland. He also covered the murder trial of
Carolyn Warmus, who killed the wife of her lover.
"He was a star," the editor said.
"He had a very good reputation, and he broke a lot of stories."
By Felicity Barringer
Reporters are constantly in search of information
that public officials or powerful businessmen want to keep secret.
If they manage to obtain the information, and it is explosive
enough, they may find themselves showered with awards and accolades.
Depending, that is, on exactly how they obtain
it.
That distinction is at the core of the highly
unusual apology to Chiquita Brands International printed on the
front page of the Cincinnati Enquirer Sunday and Monday. In it,
the newspaper's publisher, Harry Whipple, and its editor, Lawrence
Beaupre, said they have facts that "indicate that an Enquirer
employee was involved in the theft" of Chiquita voice mail
"in violation of the law."
The issue, for attorneys specializing in media
law, is not that internal information was illegally obtained.
It was that the reporter may have broken the law himself while
getting the information he sought.
"If you ever had the situation where
the reporter is actually stealing material, you would tell the
reporter not to do it and presumably wouldn't publish the information,"
said James Goodale, a lawyer with the Manhattan firm of Debevoise
& Plimpton and a former general counsel of The New York Times
Co.
"The other situation, the one that is
more common, is where you're getting information from documents
that obviously have been taken from a company, or you get the
documents themselves. You know that the documents are coming from
a person who shouldn't have access to them. In that case it is
my view that you publish the information and you don't give it
much of a thought."
The question of how confidential material
is obtained has been raised numerous times over the years, perhaps
most famously in the 1971 Pentagon Papers case, in which a secret
Defense Department study of the Vietnam War was described and
excerpted first in the pages of The New York Times, then in The
Washington Post and The Boston Globe. The information had been
obtained illegally by Daniel Ellsberg, a consultant to the Defense
Department
As Burt Neuborne, a law professor at New York
University, explained, "There's a distinction between a newspaper
accepting information from a third person who's gotten it improperly
and the newspaper itself engaging in the illegal activity."
In a case that raises some of the same issues,
a jury found that Capital Cities, ABC and two ABC News employees
were guilty of fraud in preparing a hidden-camera report to show
unsanitary practices in the handling of meat at the Food Lion
supermarket chain. the two employees lied in order to get jobs
at a Food Lion store. The case is on appeal.
The Enquirer's carefully-worded apology, hammered
out in negotiations that culminated with the signing of a legal
settlement in the case late Saturday night, disavowed any conclusions
about Chiquita's ethics or business practices arrived at "based
upon the contents of voice mail messages of employees of Chiquita."
The statement goes on to say that newspaper's
"representations, accusations and conclusions" about
Chiquita Brands International - based on these internal voice
mails are "untrue and created a false and misleading impression
of Chiquita's business practices."
The apology, hemmed in by legalities on all
sides, did little to clarify exactly how the lead reporter on
the series, Mike Gallagher, may have obtained what the series
said were in excess of 2,000 voice-mail messages, some of them
described in the series to be verbal memos of executive's actions.
A meeting in the paper's newsroom Monday was
similarly inconclusive, according to some of those present. Questions
about whether the Enquirer was backing off all the conclusions
in the lengthy report, which dealt with issues ranging from corporate
bribery of foreign officials to use of dangerous pesticides in
some of the company's foreign agricultural sites, were met with
the same response: "Read the apology."
At least one staffer, who said the atmosphere
at the paper was "like a morgue" came away with the
impression that the editors were trying to avoid disavowing the
entire series, which was based on extensive reporting beyond the
disputed voice-mail messages.
Among other legal constraints are the settlement
agreement signed by executives of Chiquita and the Enquirer on
Saturday night, and an ongoing investigation into the theft of
the company's voice mail messages by a special prosecutor in Hamilton
County, Ohio, the county in which Cincinnati is located.
One of the Enquirer's May 3 stories, for instance,
quotes a message from Keith Lindner, Chiquita's vice chairman,
to the company's president and chief operating officer, Steven
Warshaw and several other top executives, recommending that the
company try to have a Panamanian government official's tour of
the European Union cancelled because it might be disadvantageous
to the company's interests.
According to one high-ranking executive of
Chiquita, who insisted on anonymity, the company's voice-mail
system, created by Lucent Technologies Inc., records the keystrokes
of anyone using a voice mailbox - all the keystrokes, that is,
except the ones designating the password that provides access
to the mailbox. All company employees - including about 600 in
the Cincinnati area and 40,000 more in as many as 60 countries
- are required to set passwords protecting their voice-mail communications.
This executive said that the company had recorded
an intruder going from one executive's voice mailbox to another.
Gallagher, who has been fired by the Enquirer,
could not be reached for comment on his news-gathering techniques.
His attorney, Peter Hanley of Covington, Ky., refused all comment
on the case.
But Chiquita's president, Warshaw, said that
he felt the rifling of the voice mailboxes, whether by a reporter
or at a reporter's behest, was "old-fashioned burglary. it
doesn't matter if you pick someone's lock or if someone like a
repair person, to whom you've given a key, comes to your house.
It's still an old-fashioned kind of crime. It's burglary."
Warshaw added that, "You can imagine
that first and foremost for us is that a recognized publication
has stated categorically that the result of the reporting was
inaccurate and untrue. That is the most important thing for us.
"Secondly, in the apology they talk about
the investigative technique, if you will. As a company that operates
throughout the world selling food products, you can well imagine
that the most important thing for us is that we operated off a
high moral and ethical plane."
But the apology and the circumstances surrounding
it, particularly in light of the recent aggressive legal stance
that many corporations - from Food Lion to the tobacco industry
- have taken toward news organizations' activities, left Neuborne
concerned.
"You hope that the newspapers will be aggressive and vigorous in protecting the public's right to know," he said. "If they draw a line for themselves that is too protective of the notions of property and too frightened of the notions of theft, they make it almost certain that very serious wrongdoing will not be uncovered."
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