CBS and Ukrainian Americans sign settlement agreement regarding "The Ugly Face" (05/02/99)

CBS and Ukrainian Americans sign settlement agreement regarding "The Ugly Face"

by Roma Hadzewycz

PARSIPPANY, N.J. - CBS and members of the Ukrainian American community who sued the network over its 1994 broadcast of "The Ugly Face of Freedom" have reached a settlement whereby the network will pay out $328,000 to cover the Ukrainian American plaintiffs' legal fees, while the plaintiffs will cease their lawsuits against CBS pertaining to that controversial segment aired on "60 Minutes."

The settlement was signed on April 21 by lawyers representing the three plaintiffs - Alexander J. Serafyn of Detroit, Oleg Nikolyszyn of Providence, R.I., and the Ukrainian Congress Committee of America - as well as attorneys for CBS.

A petition for approval of the settlement was sent on the same day to the Federal Communications Commission.

The Ukrainian community had won a significant victory in August 1998 in its battle with CBS over the controversial "60 Minutes" segment when the U.S. Court of Appeals for the District of Columbia had found that were serious questions about whether CBS intentionally distorted information in that news report and ordered the FCC to revisit the case. It appeared that the network's journalistic integrity was on the line - along with its broadcast licenses.

The federal appeals court had ruled that the FCC "acted arbitrarily and capriciously" in denying a petition for a hearing on the issue of whether CBS engaged in news distortion when it broadcast the segment, which purported to uncover rampant anti-Semitism in Ukraine.

The FCC then had three options: to revisit its decision, call for more evidence or convene a full-scale hearing on the matter. As time went on, it became clear that, though the Ukrainian American plaintiffs could prove that there were distortions in the segment, it would be difficult to prove that the distortions were intentional on the part of CBS.

In accordance with the settlement reached 11 days ago, the plaintiffs, collectively referred to in the documents as "the UCCA Parties," agreed to the dismissal of challenges to the assignment of broadcast licenses to CBS in Detroit and Providence, R.I., and other objections to CBS qualifications to be an FCC licensee.

"The CBS Parties" agreed "to reimburse the legitimate and prudent expenses incurred by the UCCA Parties in filing and prosecuting such petitions and other objections and to provide the UCCA Parties with a settlement letter."

In that letter (the full text of which appears on page 3), Louis Briskman, vice-president and general counsel of CBS, expressed "regret on behalf of CBS over the fact that Ukrainian Americans were offended by the October 23, 1994, '60 Minutes' feature entitled 'The Ugly Face of Freedom' and saw it as a generalized condemnation of persons of Ukrainian ancestry."

"CBS did not intend to convey such an impression," he noted.

Mr. Briskman further wrote: "I want to squarely address the suggestion that our broadcast intended to imply that Ukrainians are somehow genetically anti-Semitic. Nothing could be further from the truth. This was not our intention when we first broadcast the report, nor is it our belief today."

The letter also indicates that the two parties were not in agreement on the principal issue: the accuracy and fairness of "The Ugly Face of Freedom." The letter states: "While CBS and your clients may not agree about the merits of the '60 Minutes' broadcast and may have differences concerning possible future programs, I am hopeful that our meeting helped to promote mutual respect and understanding. In this regard, let me assure you that CBS has no 'agenda' with regard to the Ukrainian people and country. Our desire is to maintain good relations with all segments of the television audience and, obviously, the Ukrainian American community is no exception."

Arthur Belendiuk, the Washington-based communications lawyer who played the lead role in the Ukrainian American parties' case against CBS explained: "They wanted us to agree that they had not intentionally distorted - we refused to do that. We're just saying we're dropping the case. We agreed to disagree."

However, he quickly added, "Even though they [CBS] are not apologizing, they are certainly stepping back from what they said in 'The Ugly Face of Freedom.' I think they are making some pretty significant steps."

Pointing to a section of the settlement agreement, Mr. Belendiuk noted: "We fought with them for a couple of weeks on this language about the wording that 'atrocities were committed under German direction.' They wanted it to read that atrocities were committed by the Ukrainian militia - they thought they were compromising - but I didn't want to accept that language."

"From a strict construction, they're not admitting anything," Mr. Belendiuk said. "But if you look what their program ['The Ugly Face of Freedom'] says, and if you look at what the letter in the settlement agreement says, they really are contradictory. ... So they're taking a big step back. The program implies that Ukrainians are genetically anti-Semitic or that there was some official Ukrainian policy against Jews, and here it says in the letter that 'since its independence, the government of Ukraine has vigorously defended the civil rights of all citizens, especially ethnic minorities.' That certainly contradicts. It's a significant step from what they were implying in that program: that Ukrainians were about to rise up and murder ethnic minorities in their country, their own citizens."

"If all of this had been presented - they are now in essence conceding to these facts - what would have been left of 'The Ugly Face of Freedom'? And there's your victory. But they can't get around to saying they're sorry because that would hurt them in their community of broadcasters," Mr. Belendiuk stated.

Mr. Serafyn, who became involved in the case as a UNA member after he was contacted by the fraternal organization's Ukrainian Heritage Defense Committee - which became activated in the days immediately after "The Ugly Face of Freedom" was aired - said of the conclusion to this litigation: "I am satisfied. I feel that we had gone with the case as far as we could, and that we were probably in the best position to talk settlement. And I thought that if we pursued it any further we would probably go downhill, that we would probably lose whatever we had gained... plus, additional funds would have been spent for nothing."

"The contents of the settlement, of course, are not to my satisfaction and I don't think to anybody's satisfaction. I wish they [CBS] would have apologized; I wish they would have done something at least halfway, but as you know from the [settlement] meeting of March 1 they were not moving in that direction at all, and they defended their position," he continued. "So, we saw the writing on the wall and became convinced that we were not going to get anywhere."

"But, while we didn't get what we wanted, there will be some intangible benefits, and perhaps some tangible benefits, to our community," Dr. Serafyn stated.

Settlement meeting

The conclusion to this four-and-a-half-year-old case came several weeks after an unprecedented meeting between CBS brass and representatives of major Ukrainian American community organizations. The two sides faced off at a settlement meeting at the CBS corporate headquarters.

Present at the meeting on March 1 were: Dr. Serafyn, plaintiff; Mr. Belendiuk, counsel for Mr. Serafyn, and later to the three plaintiffs after their cases were consolidated; Ulana Diachuk, president of the Ukrainian National Association; Askold Lozynskyj, UCCA president and counsel for the UCCA in its suit against CBS; Donna Pochoday, counsel for Mr. Nikolyszyn; Bohdan Vitvitsky of the Federation of Ukrainian American Business and Professional Associations and the Ukrainian American Professionals and Businesspersons of New York and New Jersey; Anna Krawczuk, president of the Ukrainian National Women's League of America; Archbishop Antony and the Rev. Frank Estocin of the Ukrainian Orthodox Church of the U.S.A.; the Rev. Ihor Midzak of the Ukrainian Catholic Eparchy of Stamford; Andrew Lastowecky, representing the Ukrainian American Coordinating Council; Dr. Lubomyr Romankiw of the Plast Ukrainian Youth Organization; William Crispin, attorney, of Crispin & Brenner PLLC; and Roma Hadzewycz, editor-in-chief of The Ukrainian Weekly (which has covered the case in detail since its inception in 1994).

As per the pre-established protocol for the settlement meeting, the session was off the record, but The Weekly was told interviews with CBS officials could be taken later. However, the CBS general counsel was contacted several times afterwards for a comment, but calls were not returned.

Of that meeting Mr. Belendiuk said: "It was unprecedented in the fact that high-ranking officials from CBS attended the meeting: the president of its news division, Andrew Heyward; the executive producer of '60 Minutes II' and the producer of 'The Ugly Face of Freedom,' Jeff Fager; Louis Briskman, general counsel of CBS; and Richard Wiley, former chairman and general counsel of the FCC, now with Wiley, Rein & Fielding, their [CBS's] lead attorney in New York."

"The situation there was fairly rough in the sense that they were trying to stand by the story. I think the Ukrainian community, the people who attended, held themselves out with a tremendous amount of dignity under difficult circumstances. And I think that they [the community leaders] fairly called them in and gave them a good talking to. And, frankly, CBS did not have good answers to the questions and to the statements being made by the Ukrainian community," he said.

"And I think from that point it was a big victory for us, because we were able to come there, we were able to present our case - they didn't really want to hear it, but they had to hear it," he underlined.

Mr. Belendiuk recounted that at the settlement meeting CBS officials also had said the meeting was unprecedented - that only one other meeting like this had ever been held. They indicated their desire to "move forward" and to "rectify the situation," while repeatedly stating "we stand by our story."

Indeed, the settlement agreement describes that scenario: "While the UCCA Parties criticized the broadcast and the CBS Parties continued to stand by it, they nevertheless resolved to put their legal disputes behind them."

Contacted by The Weekly via phone, Mr. Briskman at first wanted to defer questions to the network's public relations department, but when pressed to comment as one of the lawyers handling this case said: "Both the Ukrainian council and CBS wanted to put this matter behind us."

Asked how that serves the interests of CBS, he responded: "We closed out a matter that had been pending since 1994 and we're very happy to resolve matters such as these with important constituents, such as the Ukrainian congress."

"We are reimbursing legal fees and everyone is left with the status quo. So they have their position, and we have our position, and we are able to put it to bed," he noted.

Asked whether somebody would be in a position now, or ever, to comment on the original broadcast, Mr. Briskman said: "No more than we already have. I think our letter [the settlement letter addressed to Mr. Belendiuk] and our settlement speaks volumes as to how we feel about it."

Mr. Briskman was queried about a section in the settlement letter which states: "CBS typically consults with recognized experts representing a broad spectrum of viewpoints on controversial issues. Should '60 Minutes' or another CBS news documentary program produce a further news feature focusing on Ukraine, you may be assured that CBS will follow this practice and specifically consult with persons knowledgeable about Ukraine."

He was asked: "Do you consider that a meaningful statement, one that CBS will keep to?" He replied: "I sure hope so, I wouldn't have made that in a lighthearted fashion. That was something that was heavily negotiated language. They wanted that, and I'm willing to do it because we intend to do it."

"I hope our actions at CBS are ones that both you and I can be proud of. I believe that you will watch us and if there are any issues, you'll tell me about them, I'm sure," concluded Mr. Briskman.

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