Attorney Softens Criticism of CBS Over Tobacco Story : Television: CBS faced a lawsuit in an untested area of media law, expert believes; network reportedly offered to indemnify its tobacco industry source.

A prominent First Amendment attorney who had been critical of CBS’ decision not to air an interview with a former tobacco company executive on “60 Minutes” said that new disclosures about agreements made between CBS and the subject altered his opinion about the matter.

“Based on the new information, it appears that CBS faced serious exposure to a lawsuit,” said Victor A. Kovner, an attorney who has represented many media companies in First Amendment cases. “I had been critical of CBS because it appeared that they simply caved in to the tobacco industry.”

CBS still could have aired the story and defended itself against a potential lawsuit in an area of law “that has not yet been tested,” Kovner noted. “But it now appears that the cautionary signals from CBS’ attorneys were warranted.”

His reassessment was prompted by a report Thursday in the Wall Street Journal that said a CBS attorney had agreed to a stipulation with the unnamed former Brown & Williamson Corp. employee that it would indemnify him against any libel lawsuit that resulted from the “60 Minutes” story.

In addition, the Journal said, the source was promised that the interview would not air without his permission. And CBS had paid the executive $12,000 to be a consultant on a 1994 report on the fire hazards of smoking.

“In retrospect, it was a mistake for CBS to make an indemnity agreement,” said Kovner, who noted that such agreements with news sources are extremely rare.

“If you pay someone $12,000 to be a consultant and you say to them, ‘If you’re sued, we’ll pay your damages,’ ” he said, “it could be argued that you’ve induced them to breach a confidentiality contract.”

CBS attorneys had ordered “60 Minutes” to pull the interview last week because they feared that the network could face a multibillion-dollar lawsuit by Brown & Williamson, not because the story was not true but for “tortious interference,” interfering with a confidentiality agreement that the former executive had signed with his employer.

In the wake of ABC’s controversial settlement last August of a lawsuit by Philip Morris over a “Day One” tobacco industry report, CBS’ action last week was widely condemned by journalists, including CBS’ own anchors. The consensus was that the network had sacrificed journalistic integrity for financial concerns that may have been motivated more by thoughts of chairman Laurence Tisch’s ties to the tobacco industry and CBS’ pending merger with Westinghouse than by established legal precedent.

The new revelations caused consternation at CBS Thursday. The network had no official comment, but sources said that “60 Minutes” correspondent Morley Safer was angry at others on the program because, based on the information he had been given about the story, Safer made statements on PBS’ “Charlie Rose Show” that now appear to have been erroneous.

On the “Charlie Rose Show” earlier this week, Safer said that the former tobacco company employee “wasn’t paid, he wasn’t threatened, he wasn’t promised anything other than an opportunity . . . to exercise his First Amendment right.”

Safer could not be reached for comment Thursday, and Mike Wallace, the correspondent on the story, declined to comment.

“60 Minutes” executive producer Don Hewitt also declined to comment on the Wall Street Journal story, saying, “We’ve already said what we’re going to say on the air,” referring to the broadcast last Sunday that reported on the interview having been squashed.

Wallace--who said on “60 Minutes” that he and his colleagues were “dismayed” by the decision of CBS’ attorneys--told the Wall Street Journal that, although he did not know about the indemnity agreement, it did not change his opinion that this was a First Amendment issue.

“What is the sanctity of a contract when that contract hides information from the American public that deals with the health of American citizens?” Wallace said.

Others agreed. “CBS should not have made such an agreement with their source, but what this further illustrates to me is the new central role of lawyers in determining the content of TV news,” said Marvin Kalb, director of the Shorenstein Center for the Press and Politics at Harvard University. “In the old days, producers could tell the lawyers to go jump in the lake if they were sure of their story.”