INTERVIEWS: Reaction to settlement between Ukrainian community and CBS
PARSIPPANY, N.J. - Soon after CBS and members of the Ukrainian American community reached a settlement in the case stemming from the "60 Minutes" segment titled "The Ugly Face of Freedom," The Ukrainian Weekly Editor-in-Chief Roma Hadzewycz contacted key players in the Ukrainian community's anti-defamation campaign for their reaction.
The newsmagazine's segment, aired on October 23, 1994, had portrayed Ukrainians as genetically anti-Semitic and depicted Ukraine as a newly independent state where anti-Semitism appears to be rampant.
In accordance with the settlement signed on April 21, the network will pay out $328,000 to cover the Ukrainian American petitioners' legal fees, while the petitioners will cease their lawsuits against CBS pertaining to the controversial segment. The conclusion to this four-and-a-half-year-old case came several weeks after an unprecedented meeting between top executives at CBS and representatives of major Ukrainian American community organizations.
An edited transcript of The Weekly's interviews (conducted via telephone) with seven persons involved in combating CBS's misinformation appears below.
The persons interviewed were:
ARTHUR BELENDIUK
Q: What can you tell our readers about the settlement meeting that took place on March 1 at CBS?
A: We as a community, all the people who showed up there looked professional, looked solid. We showed that we were, first, capable of litigating; second, willing to litigate; and third, that we are a community that was united towards this one goal. So CBS I think got a good eyeful that day, and a good earful. And I think that those executives probably in their entire careers had never been spoken to that way. And I think the Ukrainian community came out and said: Hey, look, how could you have done this? What were you thinking?
I thought that when [CBS news division president Andrew] Heyward said "we stand by our story," for us to get up there and say: Look, you know, this wasn't right and you can't broadcast these kinds of things - I think he wasn't used to and didn't like being spoken to in that manner.
And I think CBS had an impression of us that it was one or two lawyers and a couple of people. What shocked them was that they had so many people come, and not only so many people - but so many people representing different organizations. I think they finally understood that there was a large enough group there that they were aware if we do this again we [the community] would be willing and able to mount an effort like this again.
Q: The ramifications of this case do go beyond CBS. How does it affect other broadcasters? What does an NBC or an ABC looking at this case come away with?
A: Well, it goes on two levels. On the broader level they saw a citizens' group come in and successfully challenge a network - something that had never happened before and so everyone said: Whoa! Here's a group that can come in and do that, and that got everyone's attention. And in this case it was a Ukrainian citizens' group, so they immediately focused on the fact that it was Ukrainians and that Ukrainians were willing to litigate and to take it to the Court of Appeals.
But not only were they willing to litigate, they could litigate and win. And I think that's going to stay in the networks' corporate memory for at least the next few years. I think we clearly got the attention of all three networks. And I think they understand that Ukrainians are not going to tolerate being slandered.
Again, what the community does with that, that's going to depend on the community. The question is: Now that it's over, where do we go from here? What do you do with this case? And I think a big part of what you do is you build on that and you try to develop your relationships with the press. I mean we have an office in Washington that works with Congress and develops relationships with Congress. We have to do a similar thing with the press.
Q: Why would the other networks really care about the outcome of this case?
A: We've made a path that other groups can follow. And so they wanted that path to be covered up as much as possible, and then for the FCC to sort of put up additional barriers so citizens' groups can't go in. Networks are not particularly interested in debating whether a story is true or false; their view is that they're providing stories to get people to watch. If they happen to be sensational and they get more people to watch, so much the better. And, if they happen to not be true, well that's just what you do to make money. They're not protectors of the truth, they're sellers of soap and toothpaste.
Q: No matter how they present themselves ...
A: What they perceived was that now there were going to be citizens' groups that were going to hold them to a standard, however high that standard might be, but that they were going to be held to a standard when presenting the news and they didn't want that.
We felt slandered and abused by it, but the networks just saw it as: Hey, what's the big issue? We did a story and we're going to move on and we'll do a story somewhere else.
I don't want to say it wasn't personal with CBS, because when we went into that [settlement] meeting there was a certain amount of personal animosity towards Ukrainians. You were there; you saw that, too. There were a couple of elements there. They weren't happy with us because here were all these big shots that were meeting with a community group. They didn't like that. They didn't like that this community group had actually beaten them in court. And I think the third element was they didn't like this particular community group. They didn't like the Ukrainians. And I think that came out loud and clear.
Q: So , what will their attitude be now?
A: They will respect us more. They know we bite.
So I think this got us to the point where they now understand that they just can't pick on Ukrainians, that there are consequences for doing it. Does that mean that they'll never do it? No. But, it's a start. Next time they're going to think about it: if we let them get away with it next time then that'll make it easier to do it again; if we protest again and raise a ruckus again it'll make it harder for them.
Part of what the community has to understand is that this is a PR effort. The community has to be out there presenting its case - both who we are here in the United States as Ukrainians and what Ukraine is about and where Ukraine is heading.
ASKOLD LOZYNSKYJ
Q: As a lawyer for the UCCA in this case, what is your reaction to the settlement?
A: Obviously we're not completely happy, but under the circumstances it's probably the best that could have been expected. I don't think that the monetary amount is significant, I also don't think that the statement is sufficient, but what I believe is good is that CBS essentially believes or is convinced now that the Ukrainian community will react to any future misrepresentations of the Ukrainian position or what's going on in Ukraine. And I think that in the future they will take us much more seriously because of the fact that this matter has been going on for four and a half years and they saw that the community was very intent on showing them they had made an error.
So, under the circumstances and given the fact that this did take place more than four years ago, and it's probably time to move on, I think that this is at least not an embarrassing settlement, but a decent settlement.
Q: You keep saying under the circumstances. Would you care to elaborate?
A: Well, the circumstances are that CBS is an 800-pound gorilla and the Ukrainian community, though, in my opinion, it is fairly well organized and united on this particular project, does not have the financial wherewithal such that we could have pursued this matter that much further. I think that given the constraints we do have, financial and others, this was the best we could do.
You know the law isn't exactly on our side, given the fact that we were able to pursue this only under the FCC [Federal Communications Commission]; there's no possibility for a class action for slander or defamation. The only possibilities are the FCC, and the FCC is a very difficult route.
Q: That raises another issue. Many people have said: Well, can't we sue for slander? Would you as a lawyer explain why the community as an entity cannot sue for slander?
A: Because, unfortunately, the law is well settled in the United States, in almost every jurisdiction of the United States, that a class action has to be very carefully defined, very limited. And a class action as wide as Ukrainians is too wide a class to constitute a class for defamation purposes.
Q: So, it's not an easily definable group?
A: Yes. That's right. For example, if they had said all Ukrainian attorneys are anti-Semites or genetically anti-Semitic, or perhaps if they said all Ukrainian bishops are classically anti-Semitic genetically, the conference of Ukrainian bishops could perhaps have brought a defamation action.
Q: What is your assessment of the CBS settlement letter? Did it go far enough?
A: Well, the only thing essentially that they did is they recognized the fact, or admitted the fact that they made some errors, but on the other hand they said that other facts could have substituted for the ones they had insisted upon.
The letter talks about regret. We would have liked to see some words of apology from CBS. They regret that we reacted in such a way rather than regretting that they made certain misrepresentations. So it clearly is not satisfactory, but I don't think that anybody gets public apologies from CBS, or at least with very few exceptions.
Q: They refer to their intent in the letter...
A: Well, actually I don't think they had an agenda against Ukrainians. In my opinion their agenda was to provide a sensational story. And I don't think that they specifically took the Ukrainians and said we're going to do a damaging piece on them. They were aware of constant allegations that there is a relationship, probably not a very good one, between Ukrainians and Jews and they sensationalized it.
Q: As president of the UCCA, are you pleased the UCCA was involved as one of the litigants? Would you have done it all over again?
A: Oh, of course, because the bottom line is that CBS learned a lesson that they dare not defame the Ukrainian community with impunity. While they're not being punished severely, nevertheless they did have more than four years of litigation and they did have to come up with the settlement.
And while it does not necessarily hurt them very much, I think that in the future they will be very much more circumspect before they put out any pieces or air any segments on the Ukrainian community or on the Ukrainian people that are defamatory.
BOHDANNA POCHODAY
Q: What is your opinion of the settlement of this case?
A: As a Ukrainian American and as an attorney involved in the case I have a somewhat different analysis and viewpoint of the settlement depending on which hat I wear. As a Ukrainian American, just like the majority of Ukrainian Americans, I was really offended and horrified to see the misrepresentations and distorted facts in the "60 Minutes" segment. As an attorney, I have to analyze the case from a very different perspective.
Certainly as an individual I would have expected from CBS at a very minimum a meeting with our community, with our historians, to get an explanation of how they got their facts and why they aired the facts they used in the program. I expected a public apology in the same medium - that is, on television - apologizing for the facts that they eventually had admitted to some extent were inaccurate. And also I expected a promise they would produce a well-balanced piece in the future on present-day Ukraine and the government's position toward Jews and other minorities.
And I also expected they would do something to make the Ukrainian community whole in light of the negative adverse effects that we as Ukrainian Americans have suffered after millions of people had viewed this program. I can say that they have not met with our historians and to this very day they have not issued a public apology in the same medium. And they certainly have not agreed to do a future program on current-day Ukraine.
And they used the argument of First Amendment freedom and freedom of the press and freedom to produce whatever programs they should desire in the future. I think they're hiding under that argument in order to avoid admitting to the distorted facts that were indeed, in my opinion, present in that 20-minute news segment.
As an attorney I can say that both the CBS and FCC parties have been extremely embarrassed by the decision of the U.S. Court of Appeals for the District of Columbia. I think they were quite shocked to find out they were not on the winning end of that particular decision. So to that extent it was a procedural victory for the litigants; also for the Ukrainian community it was very much like David conquering Goliath. CBS did have to outlay, I'm sure, thousands of dollars in funds to defend both the FCC proceedings and the Court of Appeals proceedings. They had hired one of the most respected FCC attorneys in Washington to represent their interests, and that certainly was an indication of how seriously they started to take the case once it approached the appellate level.
They have made certain factual concessions in the settlement agreement itself. On the other hand, I'm quite disappointed because they continue to maintain that they stand by their story and they bolster their position by maintaining that they never intended to imply that Ukrainians are genetically anti-Semitic and that it was all of the Ukrainians who committed atrocities or injustices to the Jewish people. I wish they went on record with those concepts.
I felt that the settlement letter that was provided by Louis Briskman, general counsel to CBS, was an insufficient medium and that they should have taken a step further and aired it on television because the original program was viewed by millions of people. The impact of millions viewing the program was much larger than a limited audience reading in the Ukrainian press the letter that was written by the general counsel.
Q: And who will see that letter ultimately?
A: To some extent I'm sure that the communications industry is going to be aware; they have been aware of this particular decision on the Court of Appeals level and there has been talk within the communications community. CBS was very much embarrassed because they felt that they could have gotten rid of the Ukrainian American community a long time ago. And I think four and a half years later they are surprised that we still were available to pursue our deep-seated interest and feelings about this program. In think the Ukrainian community should be aware that this is probably the closest we've ever come to protect our interest as a group in cases of news distortion and defamation of our good name. Other groups have not been afraid, nor should we as a Ukrainian American community be afraid or too timid to have our voices heard.
And I hope these CBS proceedings have served to send a clear message to the television and radio programs that we are not an easy group to trample, we will not take it, and David does sometimes win.
ULANA DIACHUK
Q: Since you are a community leader, we are interested in your reaction to the settlement reached with CBS.
A: To some extent we knew this was forthcoming, but I would say there has to be closure to every subject matter, to every action. And I am not happy because we as a community did not attain what we were trying to get out of this case.
The community supported and our organization, the Ukrainian National Association, spearheaded this drive, first of all, to get an apology from CBS, because we were slandered as genetically anti-Semitic. And that has not been accomplished. What we received was a statement saying, well, we are sorry that you took it the way you took it; that was not meant. It's not an apology per se and I, for one, do not accept it in such a way.
Secondly, they have not admitted any misinformation that was in the segment even though in talking to us [at the settlement meeting] they gave us to understand that some errors did creep into the segment. For us these were major errors. But they would not correct them as journalists are supposed to do if they find that an error was made. In that respect we did not get what we were looking for.
We also have come to the conclusion that whatever CBS had promised us they never kept their word, for example, to have a second segment on Ukraine [a promise made earlier by CBS], that they would ask for advisers for such a segment, or to at least have some contact with the Ukrainian community if there is a segment on Ukraine coming up. Such a segment did not appear, and I doubt that ever in the future they will hold to that promise to seek our professors or advisers. I feel that once this case is off their books they will do as they please, as they have done until now, and there is not much we can expect from them.
On the one hand, we had to close this matter because our community was no longer able to support the legal expenses involved in litigation and we had come to the conclusion that we had to accept a settlement and proceed. On the other hand, I think CBS is going to be more careful about what they are going to present, even though they will probably never ask us to guide them in any way.
Q: How was the UNA involved in this case?
A: The UNA, through its Ukrainian Heritage Defense Fund, spearheaded this action and provided substantial financial backing for the litigation. The Ukrainian Heritage Defense Committee was reactivated within days after the broadcast had occurred. The executive committee - our vice-president, Nestor Olesnycky, took the lead role - decided to call a meeting of community activists to unite the community around our Heritage Defense Committee.
We continued planning and meeting with other activists and other committees, including the UCCA and the Ukrainian Human Rights Committee based in Philadelphia. As you know, the Ukrainian Heritage Defense Committee also published ads in newspapers and did a lot of PR work by sending press kits and other documents to the most important news media in the United States.
ALEXANDER SERAFYN
Q: As one of the petitioners, would you share your reaction to the settlement?
A: I feel that we had gone with the case as far as we could.
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, but, as you know from the [settlement] meeting, they were not moving in that direction at all, and they defended their position.
Q: That settlement meeting, how do you feel the Ukrainian group presented its case?
A: If we talk about what we have gained - it's that we made a strong presentation at the settlement meeting. Perhaps we focused too much on the past, and not on the future, but this overemphasis may result in CBS remembering our strong opposition and, when it comes to an issue dealing with Ukraine or making a decision to cover something about Ukraine, they will remember the discussion at the meeting and our strong opposition to their bias and hopefully will avoid it by acting differently in the future. Decision-makers who know about this case will be mindful of us in any future decisions.
Q: Let's go back to the beginning of the case, how did you become involved?
A: It was within 60 days of the original broadcast. This was when channel 62 in Detroit was for sale and, in consulting with Nestor Olesnycky and Arthur Belendiuk, it was felt there was an opportunity. I became involved through the UNA's Ukrainian Heritage Defense Committee. The case has UNA roots and I, as a UNA'er, was asked whether I would be willing to stand up.
Right from the start, Yarko [Mr. Belendiuk] said the chances of winning were very slim, it's more a public show. We'll let them know that we exist so they just can't do whatever they want without any regard to the Ukrainian community.
I admit I never thought this case would drag on for so long.
Q: Any regrets about getting involved?
A: No, none at all. I feel satisfied, though we didn't get what we were hoping for. But I think that there will be some benefits for the Ukrainian community, and that will be my reward.
WILLIAM CRISPIN
Q: Please comment on the recent settlement between CBS and Ukrainian community petitioners.
A: I think it's a good settlement. I think CBS learned that your community had some limits as to what it would endure. And I think it was very important for the community to get the [settlement] meeting to express its strong views. I think it was important to get the letter that CBS issued.
I'll be frank: I don't think that either side got everything they wanted out of the arrangement. But I think it was a good arrangement, and I think it will be a deterrent in the future to other broadcasters looking around to get good ratings.
Q: Do you think the Ukrainian community could have done better?
I don't. I think the standards the FCC had erected and is in the process of continuing to erect make it extremely difficult to try and win these cases.
I think that on the substance we would have proved that many of the things CBS said were false - many, many, many of them. It's a whole other matter to prove intent, simply because you can't infer from the egregiousness of the lie. You have to actually have extrinsic evidence of their intent and that makes it extremely difficult legally to win under those circumstances.
Q: And that was the key to the case: to prove the intent.
Correct. Basically what CBS was trying to get through the commission was the sense that regardless of what was said they basically had a total First Amendment right to broadcast anything they wanted. That was why they took the position they did; that's why they lost in the Court of Appeals - that has not been the commission's policy. And so, basically, there still is left out there this idea that you can't roam around and damage people without at least having the FCC look at it.
And I think CBS is very sensitive about the fact that they got looked at and that the doctrine remains alive. I'll bet they wish they had tried this case differently.
Q: What are the ramifications of the case in the Ukrainian community and beyond?
I think the Ukrainian community will benefit because I think it's less likely that someone else will try to use them as a punching bag for ratings because it's necessary to stand up every once in a while and cry foul. The community did that and I think the meeting is another way of saying, yeah, that was wrong. So I was very pleased that Art [Mr. Belendiuk] got the meeting; he did a great job getting that meeting.
It's an uphill fight; it's an extremely difficult case - even to win in the Court of Appeals. I really want to say that. And I wasn't involved early on and all of that work he did was impressive. It's a difficult result to obtain.
I think it is a deterrent that will affect other communities in this country if some broadcasting folks decide they want to go after other communities that may be less well off than even the Ukrainian community was and less able to respond to a Goliath, really if you think about it.
And so, yeah, I think people who want something that's fair got a good shake out of this thing.
BOHDAN VITVITSKY
Q: What do you think of the settlement with CBS?
A: I think it's a mistake to focus just on the settlement. I think it makes much more sense to look at the entire campaign to try to get some justice. So I think one needs to look at the entire four-and-a-half-year period and what that accomplished. I would say that I think the accomplishment was very substantial and I think that the people who fought the fight and tried to get the community some justice served the community very, very well.
The reason I say that is because you have to start with an evaluation of the comparative strengths and resources of the litigants - on the one hand CBS, on the other hand Mr. Serafyn and the others. You're talking about a David versus Goliath kind of situation in terms of the kinds of resources that can be relied upon - given that one side had a fraction of the resources of the other side.
Obviously a lot was accomplished in terms of the opinion issued by the District of Columbia Circuit Court of Appeals as well as simply forcing CBS to acknowledge and take heed of the fact that somebody in the Ukrainian community and the Ukrainian community as a whole was mobilizing in legal opposition to this particular outrage - something which we haven't really done in the past even though the community and various Ukrainian historical figures have on numerous occasions been slandered.
And the fact that this mobilization actually resulted in tangible successes, most importantly the District of Columbia Court of Appeals decision, is a major victory. I view the settlement not as the ultimate resolution of what happened, but simply as the end point of the long campaign.
I think that in light of all of the circumstances, in terms of the various processes that were going on, in terms of the FCC's very broad discretion to try to resolve this matter and so on, and given the fact that the FCC is obviously much more attuned to the perspectives and point of views and interests of media giants such as CBS than of communities such as the Ukrainian community, I think the settlement made a huge amount of sense at this point.
But, again, I think it's a mistake to ask the question: Is the settlement a victory or not? That's not the right question. The right question is: Did we do well when we look at the entire four-year campaign? And the answer is: very definitely.
Q: What does this portend for the future, the whole picture of the Ukrainian community?
A: It certainly suggests something that's been obvious to some of us for a very long time, namely, that when such events, such television programs, or books or articles, arise we should try to do something if at all possible. One other issue to emphasize is that as a result of the First Amendment in this country not only are media institutions such as CBS large and powerful with huge financial resources, they are almost immune to attack legally as a result of the protections of the First Amendment.
So that's another reason why what Arthur Belendiuk and the other lawyers who worked so hard on behalf of Mr. Serafyn and the community deserve such gratitude and praise from us. It's extraordinarily hard to litigate against the media in the United States because of all the protections the media has. The media is not a regular litigant; it's really important to understand that. The options that you have if you want to litigate against the media are very, very circumscribed.
So, in light of all those circumstances, I think the four-and-a-half-year campaign was very, very highly successful. I think what we need to understand is that we have to take these things more seriously, that is to say attacks on the community and/or its history. I think that we've been fairly inept as a community in the ways in which we've been responding to these things in the past. Our inclination has been to think that these attacks will not recur and the sad fact is that they have recurred, repeatedly, because there is a certain mythology that's developed over the decades, if not centuries.
Q: So, this case shows the community it can fight.
A: We can fight, and we should have started much earlier. Some of these fights can and should be conducted on the legal battlefield, others need to be conducted on the rhetorical battlefield and so on. But obviously it's important to pay attention to these things.
Copyright © The Ukrainian Weekly, May 23, 1999, No. 21, Vol. LXVII
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