Lowell Bergman is a former producer for CBS's "60 Minutes". REF: http://www.pbs.org/wgbh/pages/frontline/smoke/bergman.html "There's a major difference between 'All The President's Men' and 'The Insider,'" Lowell Bergman has said of the comparison between the 1976 film on Watergate and Hollywood's new version of the events depicted in FRONTLINE'S report, "Smoke in the Eye." "In 'All the President's Men,' the editors and reporters are heroes. That's not the case here." What is the case, Bergman believes, is that "60 Minutes," one of America's most venerated news programs, made an epic mistake in not airing an exclusive interview with tobacco industry whistleblower Jeffrey Wigand until the substance of Wigand's claims had already been made public by others. Bergman speaks of his "astonishment" and "disillusion," but he stops short of branding it a "betrayal." The same cannot be said of "60 Minutes" correspondent Mike Wallace and executive producer Don Hewitt, who have not hesitated to use the word--and others less kind--when asked about Bergman's own decision to go public with his version of the matter. For months leading up to the November 5, 1999 release of Hollywood's "The Insider" (in which Bergman is portrayed by Al Pacino), Wallace and Hewitt railed against Bergman as a self-promoting traitor to the news division who began work on his "Hollywood revenge" even before leaving "60 Minutes." They called the film an inaccurate record of events and an unfair characterization of their respective positions on the decision not to air the Wigand interview. In an early review, Frank Rich of the New York Times agreed that "'The Insider' fudges chronology and makes Mr. Pacino's Bergman into a superman that even the real-life prototype finds a bit 'too neat.'" But, Rich continued, as Hollywood history lessons go, "It is no more fictionalized than was 'All the President's Men,' or, for that matter, 'Schindler's List.'" On this last point, Bergman, who was interviewed for FRONTLINE's "Smoke in the Eye" (April, 1996) and co-produced FRONTLINE'S "Inside the Tobacco Deal" (May, 1998), largely agreed: "It's not a documentary," he told Time magazine. "It's more of a historical novel." At the start of a week when the storm over the CBS/Wigand decision once more swirled intensely and the national press largely fixed on the personalities--who was talking to whom; charges and countercharges--FRONTLINE spoke with Bergman. He began by saying how the release of the movie has brought him back into contact with Jeffrey Wigand, who now lives and works in an apartment on the outskirts of Charleston, South Carolina, running "Smoke Free Kids," a foundation he formed to teach children about the dangers of tobacco. Bergman then told FRONTLINE what he feels "Smoke in the Eye" was all about. Given the numerous television and print stories, and Hollywood's soon-to-be released "Insider," is there anything under-reported about the CBS/Wigand decision? The original "60 Minutes" story was stopped in mid-stride. It wasn't done. We were still reporting it. Now, that was extremely important to me in terms of the meaning of what was going on. And it's not explained in the movie. That's a little too complicated, I guess, for Hollywood. I tried to keep pushing, but it didn't get in. From a journalism point of view, it's extremely important because, in the cases of ABC/Philip Morris or other related matters, it's usually a question of the story gets on the air and then there's a lawsuit or something happens and that results in whatever is going on. In this case, it was really pre-censorship. This was self-censorship. There was no lawsuit pending from Brown and Williamson. As far as we knew, there was no communication from Brown and Williamson to CBS about the matter. Is this what you meant back in mid-November, 1995 when you said to the New York Times that "the rules got changed in the middle" of reporting this story? Yeah, the rules got changed in the sense that. Let's put it this way: There was no rule that said that if someone had a confidentiality agreement you shouldn't try to get them to talk. The rule was that, if what they have to say is newsworthy, then it's fine. And, in fact, the general counsel [Ellen Kaden] said, when asked, Well what does this mean about FBI agents who have confidentiality agreements? Is it illegal for them to talk to us about 6E material, or potentially illegal, if they talk to us about investigative information? Or a CIA guy? Or anybody like that. And her response is, "That's fine, you can do that." So there's no question that it was fair game to use confidential information from the government. But the new rule was: Don't use confidential information if it comes from the inner-workings of a Fortune 500 company, where the source has signed a confidentiality agreement. And don't try to get the person to talk, because that will be seen as "tortious interference" with their contract. Were you familiar with the concept of "tortious interference"? The meeting I went to at Black Rock [on September 6, 1995] was the first time anybody ever mentioned the words tortious interference to me. It was explained in more detail at a subsequent meeting with the general counsel. Today, is "tortious interference" on your mind when reporting a story? No, no. At the time, I wrote a memo about a week after the final decision came down to kill the story. The memo said, So is this the new rule: that no one in the newsroom is supposed to gather information when somebody has a confidentiality agreement, particularly with a large corporation? And I never really got a formal answer to the question other than, "Oh no no, this is one case. This is a special case." How do you know if it's a special case or not? The reality is that, with the exception of an article in the Wall Street Journal no publication, either legal journal or anything else I've seen has ever taken the notion seriously. In fact, there have been a series of law journal articles that said this was ridiculous. It was explained at one point that, in fact, if Wigand had told us information that was untrue -- let's say he fabricated everything he said on camera--there would have been no tortious interference. So the truer the story the greater the damages. I think I said in "Smoke in the Eye," this was a psychedelic experience, you know? Were you disappointed with the network lawyers? The problem isn't so much the conduct of the lawyers coming up with warnings or new concepts. The question is what is management's reaction to that? . So at the end of the process, when the general counsel delivered her final opinion [not to air the Wigand interview], which was October 2nd of 1995 -- at that point, we had no indication from an executive at CBS that this was the decision. And I called [Eric Ober], the then President of CBS News, the next morning and I said, You never said anything at the meetings. What's the position of the company on this? That's when he said to me, "The corporation would not risk its assets on this story." How well did Ober and the lawyers know what Wigand had to say? Initially, when the word came that we had to go meet with the general counsel, I prepared a script that was very rough-- sound bites with sort of rough narration in between--of what the Wigand interview that we had already done might look like as a piece. That was for the meeting on the 12th of September. Then, after that, towards the end of September, as we were awaiting this so-called second opinion from an outside counsel, which we all assumed was going to just confirm what the general counsel said, I prepared a rough assembly on videotape and showed that to Hewitt, Ober, and Wallace. So they knew what we were killing. I didn't want any ambiguities here about what was in the works. How was the rough cut received? Hewitt jumped up and down and said, "Pulitzer Prize." In fact, he was prescient: When the Wall Street Journal ran some of the material on its front page, they got the Pulitzer Prize. But they didn't run it until the middle of October, at which point Wigand was free to talk to whomever he wanted to. The Wall Street Journal piece ran on October 18, 1995-- In that same issue--in the back pages--was a report based on an SEC filing by CBS News Inc. that indicated that Ellen Kaden, the general counsel, was going to get some portion of $8.7 million on the completion of the [CBS merger with Westinghouse]. And then an examination of the actual document revealed that the president of the News Division was to get $1.2 million in stock options that he would have to cash in. When you have an attorney giving you advice, it would be nice to know what their financial relationship is to the advice. Was the merger money necessarily a sinister influence on the Wigand decision? No, Larry Tisch says he wasn't involved at all.