IN August, three weeks after being acquired by the Walt Disney Company, ABC settled a multibillion-dollar libel suit by two tobacco companies with a public apology and a payment of legal costs. Early in November CBS, on the verge of being acquired by Westinghouse Electric Corporation, killed a ''60 Minutes'' interview with a disaffected tobacco-company executive rather than face a potential lawsuit and, as icing on the tobacco cake, the network-owned Los Angeles station KCBS killed an ad critical of smoking.
The ''60 Minutes'' case has become complicated by the subsequent revelation that the program promised to pay at least the executive's libel bills, that ''60 Minutes'' did not yet have his permission to air the interview, and that it paid him $12,000 as a consultant on an earlier program. Then a transcript of portions of this interview was leaked to the New York Daily News, with his previously confidential name, Jeffrey Wigand.
All this tended to obfuscate the question and take some of the heat off CBS. That is a pity because that is where I think the fundamental issue lies.
In the media world it seems the bigger they are the more easily they fall. A generation of money managers who knew not Murrow hearken to lawyers more than they hearken to journalists. Lawyers have always been quick to warn of dangers ahead, First Amendment or no. In 1971 The New York Times and The Washington Post were warned by their lawyers of possible criminal prosecution if they published the Pentagon Papers. Attorney General John Mitchell had asserted that publication would cause irreparable injury to the national interest. After much agonizing, both publishers ignored their high-priced legal talent and the Times had to find a new law firm.
Television, fearing reprisals through the regulatory process, has generally been more skittish about standing up to government. In 1976 I urged my then-employer, CBS, to have one of the two publishing houses it owned print the text of a House Intelligence Committee investigation report that the House had voted to suppress. News executive Richard Salant told me that corporate executives had ruled against it on the advice of lawyers who warned of possible prosecution under the espionage law.
There have been other examples of government threats on security grounds. In 1986, CIA director William Casey, threatening espionage prosecution, managed to get The Washington Post to delay the publication of a story about the use of submarines to eavesdrop on Soviet communications. But today, generally speaking, pressure for censorship comes less from government than from business. The threat of a libel suit tends to have a chilling effect on smaller newspapers and radio and TV stations, because of the ruinous cost of litigation, even if they ultimately win.
The tobacco industry, in its battle for survival, has apparently settled on the threat of lawsuit as a key weapon in its defense against an increasingly unfavorable press. The weapon turns out to be particularly potent in a period of network acquisition where decisions are made under the influence of money managers anxious to dispel any cloud on the financial horizon. The news managers mainly submit, gracefully or less so.
The stakes have become too high to argue the public interests and the First Amendment. It is a shame that ''60 Minutes'' itself did not act more forthrightly so that at least the underlying issue would be clear.