On March 21, 2012, NBC led the nightly news with reporting about the Trayvon Martin case. CBS led with a report that the NFL was imposing unprecedented sanctions on a team for a scheme that involved paying athletes to injure opponents.
It was a slow news day, and the Big Three newscasts had to choose unconventional leads. But ABC’s lead on World News was, even in that context, unlikely. It was news the network had played an integral role in creating: The program’s aggressive coverage of an obscure food product was yielding results, and Diane Sawyer announced that some of America’s largest supermarket chains were “taking action,” discontinuing the sale of ground beef that contained a product known as lean finely textured beef or, as ABC repeatedly referred to it on air, “pink slime.”
Though the term had been used before, both within the U.S. Department of Agriculture and in a 2009 New York Times report, the twelve reports on “pink slime” that aired on World News in the month between March 7 and April 3, 2012, broadcast the term to millions of viewers in an alarming fashion. The initial March 7 report alone included, in ABC’s words, “stunning” and “startling” revelations that beef trimmings “once used only in dog food and cooking oil” might be be hiding in your dinner.
ABC’s reporting on “pink slime” is the latest dustup in a long line of crusading, consumer-oriented journalism, aimed primarily at women, that has prompted legal backlash. There was the 1989 60 Minutes broadcast that sent apple prices plummeting after it warned that a chemical called alar, which was sprayed on apples to prevent their falling off trees prematurely, caused cancer. Alar was voluntarily withdrawn from the market after the Environmental Protection Agency considered banning it, but not before apple growers had filed an unsuccessful libel lawsuit against CBS News.
Then came ABC’s 1992 report that revealed unsanitary practices in back rooms of the grocery-store chain Food Lion. Two ABC producers lied on employment applications in order to obtain jobs with the grocery chain and get access to those back rooms. The company subsequently sued ABC, claiming that the broadcast cost it $1.5 billion in stock value and $233 million in profits. A $5.5 million verdict in Food Lion’s favor was ultimately overturned, and ABC was ordered to pay the chain just $2 in damages.
The following year, Dateline NBC rigged crash tests of a GM pickup truck by using explosives to ensure that a fire would erupt if the truck crashed when gas was leaking from it. NBC settled a defamation suit filed by GM.
In cases like “pink slime,” veteran TV news producer Rick Kaplan says litigation is not unexpected. “They knew when they did this they were going to get sued, so I’m sure they did it with the lawyers hand in hand,” says Kaplan, who produced the Food Lion report and spent nearly two decades at ABC before going on to serve as the president first of CNN and then of MSNBC. ABC was holding BPI’s feet to the fire, he says, and “ought to be lauded for that.”
BPI has insisted all along that its meat was not “pink slime” but a product with a proud history. One of the company’s founders, Eldon Roth (the other is his wife, Regina), invented a process that salvaged lean beef from the fatty meat trimmings that remain after steaks are carved out of a carcass; those trimmings had previously been discarded or used only in high-fat ground beef. Roth’s invention lowered the cost of the ground beef sold to school cafeterias, fast-food restaurants, and supermarkets across the country.
It also made that beef safer to eat. The Washington Post once described a BPI factory as a “fortress against potentially lethal bacteria.” BPI’s production process, which involves spraying beef with ammonia, was designed to prevent the sort of contamination that in 1993 claimed the lives of three children who had consumed undercooked burgers at Jack in the Box.
Roth’s innovation made him, and the company, prosperous. Prior to ABC’s reporting onslaught, BPI was operating four processing plants, employing over 1,300 people in the United States, and raking in over $115 million in profits annually. Mitt Romney heralded Roth’s innovation in his 2010 book No Apology and cited him as an archetypical American success story, writing that while “a young Eldon Roth held a blue-collar job in a cold-storage plant . . . Eldon now owns a very large jet.” Roth and his wife together donated $190,000 to super PACs supporting Romney and have generously supported other Republican political candidates over the years.
ABC’s broadcasts have dramatically changed BPI’s fortunes: Grocery chains stopped carrying ground beef that contained “pink slime,” and some fast-food chains swore it off. The company’s legal complaint alleges that ABC’s stories are costing it more than $20 million in revenue every month.
Whether the network libeled and defamed BPI and its product is now the subject of a $1.2 billion lawsuit. The standards for proving libel and defamation are high, but Beef Products, Inc., v. American Broadcasting Company, Inc., et al. — anchor Diane Sawyer and correspondents Jim Avila and David Kerley are also named in the suit — is shaping up to be one of the highest-stakes defamation battles in many years. (National Review has an important case of its own in the courts.)
The case is chugging along, and not necessarily in ABC’s direction. The network’s attempt to remove the case from South Dakota state court into federal court was denied in June. If the case goes before a jury, South Dakota-based BPI will have home-court advantage.
An ABC News spokesman declined to comment for this piece, and the network has said very little on the subject since it was hit with the suit.
Asked by Time magazine in 2011 how journalists refrain from showing emotion when covering overwhelming events, Sawyer said, in part, “We are not the story. Our feelings are not the story.” ABC’s coverage of pink slime, led by her and Jim Avila, might have led you to believe otherwise.
USDA regulations do not require that products containing lean finely textured beef be specially labeled, and Avila broadcast an initial report featuring a “whistleblower” who alleged that “USDA officials with links to the beef industry” were improperly labeling “pink slime” as meat. It had the look and feel of the opening salvo in a campaign against the product.
The New York Times had reported in 2009 on a debate within the USDA and the beef industry itself over lean finely textured beef and its main producer, BPI — in particular, over the effectiveness of the ammonia-treatment process the company employs to kill E. coli and salmonella; the use of the product in school lunches; and the tradeoff between the cost savings and reduction in quality. From ABC’s initial coverage, it would have been difficult to determine that there had ever been a debate.
Having raised the alarm, the network did its best to keep it blaring: It sent producers into grocery-store meat sections on March 8 to see if there was pink slime in the ground beef and asked the country’s top ten grocery chains if they sold it. “Our viewers want to know if pink slime lurks in the beef sold here,” Avila said on March 9. “Most couldn’t tell us for sure.” When the USDA declined ABC’s requests to respond to its queries on the record, Sawyer told Avila on the 9th, “Keep calling all next week. I’m going to be asking every day.” In subsequent broadcasts, the network named and shamed grocery chains that carried the product.
As stores reacted, Sawyer used her broadcasts to showcase her success. “We are getting action tonight,” she told viewers on March 14. The USDA, which purchases food for the National School Lunch Program, was set to announce that it would allow schools to purchase either less-expensive hamburgers containing pink slime or costlier burgers free of the product.
“Tonight, taking action,” she said a week later, on March 21, as some of the country’s largest grocery chains discontinued beef containing “pink slime.” On April 3 came the report that the government had taken “big action.” The USDA was amending its labeling rules to allow producers voluntarily to label meat that contained lean finely textured beef.
The court battle over ABC’s work is being waged, on both sides, by titans of the legal industry. ABC retained the ultimate Washington law firm, Williams & Connolly; the team of lawyers representing the network is headed by Kevin Baine. In the late 1990s, Baine successfully handled CNN’s libel lawsuits stemming from the network’s botched 1998 Operation Tailwind report alleging that the United States used nerve gas in the Vietnam War.
BPI has matched ABC’s legal firepower. Representing the company is Dan Webb, the chairman of the Chicago-based firm Winston & Strawn. He is the author of the Webb report, which, in 2003, revealed that former chairman and CEO of the New York Stock Exchange Richard Grasso had been overpaid $156 million in the job. It was Webb’s prosecution 20 years earlier that landed former national-security adviser John Poindexter behind bars for his role in the Iran-contra affair.
The network has filed motions to dismiss the suit on several grounds — among them, that “slime” is not a derogatory word by which to refer to beef. Lean finely textured beef, “much like all ground beef, is slimy,” ABC contends.
Both parties now await the judge’s ruling. If ABC’s motions are denied, the trial will proceed to the discovery phase, which would mean depositions for ABC’s news team. It would also mean, most likely, a lengthy court battle that would, implicitly, put the network’s journalistic practices on trial and raise questions about how far a network may go to dramatize a story.
Regardless of the law, though, the fact that ABC has found itself at this juncture at all says something about the trajectory of its premier program, World News.
In a largely unsuccessful effort to boost ratings, it has swapped coverage of major international and domestic news for softer stories: celebrity, consumer, animal, and human-interest piecees. The television-news analyst Andrew Tyndall drew ABC’s ire when he described World News as a program that had, in 2013, been “certifiably Disneyfied” and “rejected the mission of presenting a serious newscast.”
“The ABC News of Peter Jennings, Ted Koppel, and Charlie Gibson is over,” Tyndall told Forbes, citing his findings that the network spent significantly less time than its competitors covering the year’s major stories like the rollout of Obamacare and the debate over the federal budget. (By comparison, with Charlie Gibson at the helm, World News was on par with CBS and NBC in the time it devoted to coverage of the year’s top stories in 2007 and 2008.) “In more than 25 years of monitoring the three network nightly newscasts I cannot remember seeing such a radical shift by newscast in its definition of news,” he said. An ABC News spokesman said in response to Tyndall’s conclusions that the broadcast aims to give viewers “information that is relevant to their everyday lives.”
The Disneyfication was well underway when a former executive producer of World News, Paul Friedman, wrote a summer-2012 piece about the dynamics involved. He explained that Sawyer had attempted to stand out by leading the show with non-traditional stories like the pink-slime scare and generally by replacing hard-news items with softer fare.
“Many nights,” Friedman wrote, “traditional news stories are treated as quickly as possible to make more time for warm and fuzzy features, health and consumer stories, and ‘news you can use’ — the kinds of content you used to find mostly on the magazine programs and morning shows. Which is, of course, where Sawyer has spent most of her professional life.”
Rick Kaplan, the ABC veteran, defends the network’s focus as well as its coverage of the pink-slime story. “I think I might have done that story myself if I was running World News,” he tells me. Kaplan concedes the broadcast is “very consumer-oriented,” but that type of coverage “rates very high when you take polls,” he says. “I think any news organization that had learned of that story would have done it,” he says. “The truth is, this is a story they did because it’s a damn good story, and a damn good story gets ratings.”
It is not happenstance that the changes in World News roughly coincide with the ascension of Ben Sherwood to the presidency of ABC News in December 2010.
Sherwood, a Beverly Hills scion married to a top Hollywood executive, describes himself as a “bestselling author, award-winning journalist, and Internet entrepreneur.” He is a writer with a flair for drama and, as Friedman terms it, “hot” prose. So it shouldn’t be surprising that ABC’s findings about pink slime were described on air as “stunning,” the results of its investigation “startling.” Correspondent Jim Avila took “tough questions straight to the top” and, later, “an army of concerned viewers” took questions “straight to your butcher.”
The overwrought salesmanship is most evident in the show’s opening and in the anchor-read teases just before commercial breaks, which Sherwood has pressed producers hard to enliven.
At one point, according to a former ABC News producer, Sherwood e-mailed the news division’s top producers announcing a “tease challenge” in which, during the morning editorial meetings, he would assign subjects for teases and then judge who wrote them up best.
“Every story has to be twisted and manipulated into something that’s going to appeal to the middle-aged women that they’re trying to target,” says the former employee. (The network’s audience for news and entertainment combined is over 60 percent women.) So former congresswoman Gabrielle Giffords and her astronaut husband, Mark Kelly, aren’t just an inspiring couple, but “America at its best.” They’re not only in love, they have “a marriage out of a storybook.” Kelly, producers wrote, is “closest to heaven when he’s with his wife.”
Sherwood hasn’t quite hidden his willingness to turn news into entertainment. More than one TV insider told me that may be because he aspires eventually to replace Disney CEO, Bob Iger (a former colleague says Sherwood “covets” the position). A friend disputes that assertion. “Sure, Ben’s ambitious,” he says, “but that idea is ridiculous and he would laugh out loud at the notion. Ben is in his dream job — the one he’s wanted his whole life.”
Still, Sherwood’s focus on entertainment is evident in the network’s programming. This January, the news division undertook the curious task of producing a scripted miniseries about the Cold War–era CIA, which was canceled after just two episodes and replaced by Shark Tank. On his watch, too, Good Morning America, packed with lighter, tabloid-friendly fare surpassed NBC’s Today show for the first time in two decades.
In the fall of 2011, Sherwood instructed ABC News producers to turn reported threats of a terror plot set to coincide with the tenth anniversary of the 9/11 attacks “into a thriller.” Though the plot was unconfirmed, reporters were told to paint a story of the effort to track down the would-be perpetrators “unfolding against a ticking clock.”
Deputies leaked to Gawker a transcript of Sherwood’s recommendations. “It is literally, the construct is, if you were writing the script of this, it is a thriller,” Sherwood said of his vision for the 9/11 story.
Whatever happens in ABC’s legal battle, the case raises the question of where to draw the line between hard-hitting journalism and sensationalist programming that misleads in order to expand its audience.
Sawyer has been running another campaign on World News of late, urging people to buy products “Made in America.” Her program has been tacitly pressuring places like the Smithsonian gift shop to sell American-made products, but Sawyer could soon find herself in front of an unforgiving South Dakota jury, accused of destroying hundreds of American jobs with her reports.
Perhaps the closest parallel to the current trial is the case of the cattle farmers who sued Oprah Winfrey for libel in 1998 over her discussions of mad-cow disease. Winfrey narrowly beat back that case after she spent six weeks in Amarillo, Texas, for the trial and testified before a jury.
Sawyer, Avila, and the World News team, surely, are crossing their fingers for a similar outcome, without having to face a South Dakota jury.
— Eliana Johnson is media editor of National Review Online.