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"Framing Texaco"

[Originally appeared in The American Spectator, February, 1997]

It happened that the New York Times broke the Texaco tapes scandal the same week West Coast voters passed the California Civil Rights Initiative, and for many fans of affirmative action the combination of news stories was enough to renew their faith in the Almighty. “The Texaco crisis is God’s response to California’s Proposition 209,” declared the Rev. Joseph Lowery, president of the Southern Christian Leadership Conference. Boston Globe columnist Derrick Z. Jackson agreed: “Somebody up there is trying to keep white people honest.”

Miraculous or not, the Texaco case followed a script seen many times before. The first charges of bigoted remarks cleared the room: once managers stood accused of that offense, virtually no one took an interest in going to bat for them, least of all the company, which from first day to last kept up a flow of anguished apologies that seemed only to goad its critics into raising their demands. Even the revelation that many of the charges were false did nothing to alter the tone on either side.

The uniformity of coverage and opinion was in many ways a tribute to the Times and its reporter Kurt Eichenwald, who kept the pressure up day after day with relentlessly accusatory coverage. And it worked: in less than two weeks, paper and reporter managed to bring one of the nation’s largest businesses to its knees and terrify the employer community into renewing its flagging commitment to “diversity,” not to mention break the momentum of CCRI supporters.

That the reports contained serious inaccuracies would have been troubling enough, given the explosive status of racial matters in America today. But the real scandal of the Texaco story is how little actual investigation the Times did and how avidly it appears to have accepted a prepackaged account concocted by shrewd plaintiffs’ lawyers. Those lawyers are now apparently on their way to cashing in fees that may amount to tens of millions of dollars from Texaco’s $176 million settlement -- and it doesn’t seem to matter to the Times or anyone else that to get this money they fed the paper a story which later turned out to be full of falsehoods.

Eichenwald broke the story of the tapes on November 4, but the story of how he got the story begins well before that. For some years, lawyers have been suing the giant oil company on behalf of a number of black employees around the country, filing demands for company documents and engaging in other “pre-trial” activities. Last fall, dismissed Texaco manager Richard Lundwall apparently took it upon himself to bring to the lawyers secret tape recordings he’d made, in which his colleagues discussed many topics -- among them how to respond to the lawyers’ document demands. The recordings’ sound quality was very poor in many places, but some of the passages that were relatively clear showed managers talking about withholding or even destroying documents that would have been of interest to the plaintiffs.

That sort of conduct could constitute a serious legal offense, so the story was definite news, albeit perhaps of an inside-page variety. But the transcript of the tapes that the lawyers helpfully furnished to Eichenwald contained a second and far more explosive tale. According to these transcripts, which purported to explicate various passages on the tape that were hard to make out by ear, managers had referred to black employees as “f---ing n---ers” and “black jelly beans.”

The alleged racial epithets took a somewhat interesting news story and blew it wide open. Eichenwald quoted one of the black plaintiffs in the suit as saying the remarks “sounded like a Klan meeting.” In subsequent articles, he quoted Wade Henderson, head of the Leadership Conference on Civil Rights, as saying the tapes were “the functional equivalent of the Rodney King video” and made the case “far more significant than most complaints of employment discrimination.”

After the first day, both the news and editorial sides of the Times dropped modifying words like “alleged,” and began reporting the charges as simple fact; other papers followed suit. The paper held up for special contempt retired Texaco treasurer Robert Ulrich, who had supposedly used the “f---ing n---ers” epithet; it repeated this profoundly defamatory assertion again and again, with nary an “allegedly” in sight. Texaco promptly stripped Ulrich of his health benefits, as well as disciplining other employees. Yet there were plenty of questions that should have occurred to editors at the Times:

-- Sound quality. Journalists are supposed to know the quality of pocket audiotapes is dubious. These tapes were especially bad, having been made while hidden in the renegade manager’s clothing. And the most sensational material seemed to come from the ambiguous if not inaudible sections.

-- Context. One of the few journalists who sat down in the story’s early days and actually listened to the tapes was Wall Street Journal columnist Holman Jenkins, who not only found the alleged slurs inaudible but also noted Ulrich “remarking with satisfaction on the advancement of women and minorities” and heard discussions of how the company could best recruit blacks while laying off white employees. Jenkins later found a lawyer who’d crossed swords in an earlier case with the plaintiffs’ lead attorney, and said that in that case also his opponent had come up with a self-serving and disputable transcript of taped conversations.

-- Mysterious candy references. Eichenwald presented as racial slurs the tapes’ numerous references to jelly beans, black and of other colors; yet those familiar with corporate diversity training recognized the imagery as that used by Roosevelt Thomas, Jr., a widely known diversity expert who had instructed Texaco executives.

-- Privacy issues. The Times straightfacedly reported Lundwall’s claimed motive in making the secret tapes (to insure that his minutes were accurate) and prudently refrained from raising questions about the role of covert surveillance as a litigation tactic.(1)

Texaco finally obtained a copy of the tapes from the government and gave them to Carl Ginsburg, the audio-enhancement expert who deciphered the FBI’s recordings of the Branch Davidians. After applying enhancement techniques to the tapes, he reported back that the alleged epithets were nothing of the kind. The “f---ing n---ers” remark, which was uttered amid a discussion of winter holidays, turned out to be a reference to St. Nicholas. Ginsburg said that the attorneys’ transcript was riddled with other errors as well. One widely condemned remark -- “you know how black jelly beans agree” -- was instead “we don’t have black jelly beans and green,” he reported. Another supposedly odious remark about how the black jelly beans appeared “glued to the bottom of the bag” came from the secret taper himself, and appeared to deplore, rather than ridicule, minorities’ trouble in winning promotions.

Aside from a highly obscure passage supposedly involving St. Nicholas’s beard -- not on its face racially oriented and almost certainly a corruption of an original statement -- the only crumb remaining for the outrage-mongers was pretty mild: Ulrich’s “I’m still having trouble with Hanukkah -- now we have Kwanzaa.”

Oddly, once the company had evidence in hand dramatically calling into question the credibility of the Times’s reporting, it then proceeded to make that evidence public by releasing it to the Times itself. A source close to the company believes part of the explanation was that the company is a local institution -- it has been in Westchester County for twenty years and was in New York City before that -- and feels it’s “going to have to live with this newspaper.”

The Times did run a reasonably prominent article on the second transcript November 11 -- but put that article in only some of its editions. The next day, a tiny page-two item advised readers who missed the previous day’s article that they could write in for it. When the Times omits a story from some editions, even a light human-interest story, it often re-runs it the next day at the risk some readers will see it twice. But it didn’t bother to do so with an article implicitly retracting large parts of its most sensational civil-rights story of the year. Among readers who get early editions of the Times and never saw the corrective piece are many in the New York suburbs, including Texaco’s own Westchester County, and in places like Washington, D.C.

Standard journalistic procedure, when a secondary story begins to emerge about a newspaper’s coverage, is to assign that second piece to another reporter. But the Times left Eichenwald to report on the reaction to the revelations about his own misreporting. His new articles proceeded to push the theme that the new revelations really weren’t important. “With or without” the epithet, he quoted Wade Henderson as saying, it was the overall episode that was damning. The changes “made little difference” to civil-rights groups or plaintiffs’ lawyers, he wrote in the paper’s “Week in Review.” The plaintiffs’ lawyers variously called the new transcript “much ado about nothing” and said it changed things not “one iota.” This was of course wildly self-serving on all sides, yet it soon was in place as the official line: it didn’t matter after all whether or not white managers used phrases like “f---ing n---ers.”

The rest of the American press did no better. The Wall Street Journal, which had trumpeted “racist remarks” in big headlines, buried its correction in the sixth paragraph of a related story. Business Week found space for a piece headlined “Get Serious About Diversity Training,” but none to mention that its previous week’s report of “blatantly racist” epithets had been in error. Indeed, four days after the new transcript the Associated Press was again referring to “racial slurs” by Texaco executives. The November 18 Wall Street Journal reported that the “derogatory comments” on the tapes had “shocked” most whites while confirming black fears. Everyone had agreed to proceed as if the original charges were true.

So -- readers must wonder -- can Mr. Ulrich sue for defamation, and wind up replacing the Sulzbergers as owners of the paper of record some day down the road? Probably he’ll run into trouble if he tries this, and one major reason is that -- it’s one of the nastiest secrets of litigation journalism -- papers can print all sorts of defamatory allegations with impunity, including those that later prove false, so long as those allegations have previously appeared in official court documents. In this instance, lawyers had filed the transcripts the Friday before Eichenwald’s Monday morning piece.

The doctrine granting reporters immunity in printing the contents of court documents is an extraordinarily convenient one for lawyers, of course, because they naturally enjoy so much of a hand in shaping what will become official court documents: they draft affidavits, elicit deposition testimony, describe their opponents’ supposed conduct in the course of filing complaints, and so on; they also arrange for the transcribing of recordings. It makes them the perfect negative source: not only does a lot of material damaging to their opponents fall into their hands naturally, but they can generate more such material simply by arranging for factoids to make their way into a court record. Once they do, their friends in the press can print them.

USA Today, virtually the only paper to question this kind of manipulation in the Texaco case, asked Times business editor John Geddes whether the paper had been “used by plaintiffs in the case to promote a faulty but more inflammatory transcript.” His response? “Not unless the court was used.” You might think it had never occurred to the business editor of the New York Times that lawyers interested in promoting dubious information in the press might long ago have discovered the best carom-shot technique for getting it there: promote it in a court paper first.

“Genuine or not,” Newsweek said with fine indifference when publishing the Hitler diaries hoax, “it almost doesn’t matter in the end.” Maybe, as Derrick Jackson of the Globe would have it, the Texaco case signifies that someone up there is trying to keep white people honest. Too bad no one down here is doing the same for trial lawyers and journalists.

(1.) There was a wider story here too, about the epidemic of secret taping by litigious employees in the American workplace. A few years back a West Coast lawyer who represents fired employees suing their bosses told the Wall Street Journal that about one in five of his clients tell him they’ve secretly taped conversations. Many courts have encouraged the trend by letting workers pocket awards based on covert taping (“exclusionary” rules generally apply only to prosecutors, not private litigants). Thus a federal appeals court approved a wrongful-firing award to a Connecticut paper-company executive who’d worn a wire into meetings with his supervisors, although dissenting judge Ellsworth van Graafeiland thought it unfortunate that “every disgruntled employee in the Second Circuit henceforth will feel free to report for work with a tape recorder hidden on his person.” (Judge van Graafeiland also said he thought it unlikely that his fellow judges would be so understanding were their clerks to begin surreptitiously bringing in recorders to monitor their deliberations.)