Can this media marriage be saved?
Given that the separation has been prompted by the cancellation of a documentary on the gambling industry, the odds are probably less than 50 to 1.
Meanwhile, a once-devoted partnership is—like many divorces—devolving into recriminations, anger and injured feelings.
The petitioner is swashbuckling investigative reporter Lowell Bergman, a star professor at the University of California at Berkeley’s Graduate School of Journalism and director of UC Berkeley’s Investigative Reporting Program; he was famously portrayed by Al Pacino in The Insider, the Oscar-nominated 1999 movie that dramatized how Bergman, as a producer for 60 Minutes, brought Big Tobacco to its knees.
The respondent is Frontline, the 32-year-old award-winning public television series that regularly speaks truth to power, along with its founder, David Fanning, and its executive producer, Raney Aronson-Rath.
Bergman and his team of producers, cinematographers, reporters, film editors, and fact-checkers had made a 90-minute documentary, Bigger Than Vegas—the result of a two-year investigation into the shrouded activities of Chinese organized crime figures and money-launderers, and their alleged ties to American-owned casinos, awash in billions of dollars that apparently violated Chinese currency restrictions in China’s special administrative region of Macau.
A former Portuguese colony on the Pearl River Delta, Macau boasted only around 640,000 permanent residents, yet its gambling and hospitality businesses threw off an estimated $80 billion a year.
For the past quarter-century, Bergman, 69, has worked prolifically with Frontline, toiling as a producer, writer, director, or correspondent on 27 Frontline investigative documentaries, notably A Dangerous Business, a collaboration with The New York Times about a multibillion-dollar pipe manufacturer’s rampant safety and pollution violations—for which Bergman shared the 2004 Pulitzer Prize for Public Service.
Most recently—just last week—Frontline aired Rape on the Night Shift, a joint production with Univision, for which Bergman is credited as director and writer and also appeared as a correspondent. But that, by most accounts, was his swan song.
Bigger Than Vegas (originally titled The Gods of Gambling) had been planned as the Frontline series’ season finale in May 2014, then was postponed until the following September 30 season premiere, which was advertised in a promotional trailer shown on PBS stations a couple of weeks beforehand.
Then, after much handwringing and many disagreements between Frontline and Team Bergman over various edits of the film, it was delayed once again, tentatively rescheduled, and finally cancelled for good on January 22 of this year.
“I don’t think that that’s unusual in journalism,” Frontline’s Aronson-Rath told The Daily Beast in her only comment for this story. “Journalists and editors have editorial disagreements. You’ve been in the field long enough to know that that’s the case.”
But Team Bergman contends that Frontline, which owns the footage and funded the film to the tune of $700,000, killed it mainly out of a fear of litigation from billionaire gambling titans Steve Wynn and Sheldon Adelson.
Fanning and Aronson-Rath had already decided to postpone the documentary last September when Wynn, 73, slapped a slander suit on hedge fund manager James Chanos, who was interviewed on camera for the film.
Wynn sued for remarks Chanos made at Bergman’s annual investigative reporting symposium in April 2014 on the Berkeley campus, where excerpts of the rough cut were screened for an invited audience.
Chanos, who famously made a killing in 2001 by shorting Enron stock before that fraudulent energy company collapsed in scandal, told the crowd, according to court papers, that he “got a little nervous the deeper we dug into Macau”—by far the planet’s largest gambling venue, churning money at six or seven times the rate of Las Vegas.
Chanos added that he “began to really get concerned about the risk I was taking with clients’ money under the Foreign Corrupt Practices Act and a variety of other, you know, aspects of exactly how business is done there.”
Mentioning “U.S. operators like Mr. Adelson and Mr. Wynn,” Chanos argued that while “they might be adhering to every aspect of legal requirements in what they were doing, there was still an attempt to mislead and an attempt to obfuscate,” according to court papers.
“Almost any company doing meaningful amounts of business in China,” Chanos continued, “probably could be found in violation of the FCPA.”
Federal Judge William Orrick ultimately dismissed Wynn’s lawsuit with prejudice, declaring that Chanos’s carefully parsed comments could not be construed as defamation, and ruled last month that the casino mogul was liable for $422,380 of the hedge fund manager’s legal fees.
Still, Team Bergman and Frontline considered Wynn’s lawsuit a “shot across the bow”—a warning that the billionaire would be ready to drag them into costly litigation, even frivolous litigation, at the slightest provocation.
The 81-year-old Adelson, meanwhile, has repeatedly filed lawsuits against nosy journalists who dare criticize his casinos, although he’s better known as an extravagantly generous donor to Republican candidates who pledge their support for Israel.
“We at the Investigative Reporting Program believe that the story was killed for two reasons—their editorial concerns and their concerns about the legal consequences,” Bergman told an audience of fellow journalists who attended this year’s symposium in late April.
He added that Frontline’s decision to cancel the documentary, and the refusal of another public television outlet to carry it, were symptomatic of “the chilling atmosphere that exists today when you have potential deep-pocket litigants.”
Bergman had provided Frontline with an advance copy of his remarks; Fanning pleaded with him not to make the cancellation of the documentary an embarrassing public issue.
When Bergman went ahead anyway, that was enough to send the Frontline folks to battle stations.
Fanning, who stepped down last month to become Frontline’s executive producer at large, and Aronson-Rath, who succeeded him in the top job, responded with a blistering press release that essentially accused Team Bergman of sloppy journalism.
Bergman “is suggesting that we acted out of fear of litigation from powerful entities,” they wrote in an unprecedented airing of dirty laundry. “To be clear: our reasons for canceling the film were editorial…“[W]e tried over many iterations to reach an acceptable final edit. We postponed the broadcast twice because we didn’t believe it was ready, including finding out about serious factual issues less than two weeks before air last fall.”
They continued: “Despite more time, Lowell and his team were not able to provide strong enough sourcing and reporting to support key elements of the film.
“In the end we had to make a difficult decision about whether the film as constructed met our editorial standards. It did not…[U]nfortunately, the film did not live up to the journalistic obligations to accuracy, fairness and proof that Frontline demands.”
The press release amounted to a declaration of war—a strange and upsetting circumstance for both sides, considering their impressive journalistic credentials and long history of friendship and collaboration.
Members of Team Bergman told The Daily Beast that they were deeply offended and outraged by Frontline’s public statement.
They said their film had been “triple fact-checked,” in the words of one Bergman partisan who accused Frontline of “managerial incompetence” and vowed never to work with the PBS series again.
Others said Fanning and Aronson-Rath, after months of hesitating, took on the project having been explicitly cautioned by Bergman that a lawsuit from Adelson, Wynn, or both, was a near-certainty.
Worse—according to Bergman’s legal advisers—Frontline’s harsh public critique could easily become evidence in potential litigation concerning not only the Macau exposé, but also any other lawsuit prompted by Team Bergman’s future investigative projects.
Any prospective plaintiff, they argue, would likely subpoena Fanning and Aronson-Rath to testify against their former collaborators.
“I don’t think people are well served on the side of investigative reporting by throwing charges at one another,” said prominent First Amendment attorney Gary Bostwick, who had been counseling Bergman for the better part of a decade.
“I started as a plaintiff’s lawyer—I have that sensibility,” Bostwick added, noting that he represented convicted murderer Jeffrey MacDonald against writer Joe McGinnis in one famous lawsuit, and baseball star Steve Garvey against Newsweek in another.
“Just from a law professor’s point of view,” Bostwick said, “I can tell you that as a plaintiff’s lawyer, if I looked at statements like that [such as Frontline’s], I would agree…that opens you up. You’ve just said, ‘I’m a witness. I’m a witness to possible actual malice.’”
Fanning, for his part, told The Daily Beast: “I find this really so unseemly—we are being accused of chickening out in the face of litigation.”
Noting that Frontline has a distinguished history of taking on powerful figures and corporations, and is a regular recipient of threatening letters from white-shoe law firms, he defended their forceful press release. “When Lowell pursued this and made a point of it, he drew us into a much larger conversation than the threat of legal action.”
Fanning added: “There was a disagreement editorially about something that directly affected the actual evidence in the film, and that was something we discovered less than two weeks before air date”—a reference to the scheduled September 30 season premiere. “We were unsatisfied with the evidence, and we were concerned enough that we decided at that point to postpone the film.”
The sticking point, according to both sides, was the documentary’s treatment of Hong Kong businessman and film producer Charles Heung, who, along with his father and brothers have been publicly linked to the Triads—as China’s shadowy and often violent organized crime gangs are called—and whether Heung has secretly been involved with high-roller junkets at Wynn’s Macau gambling operation.
A working version of the film script had suggested as much—an allegation that could have caused trouble for Wynn, who was seeking a license for a new casino from gambling authorities in Massachusetts, where Frontline is headquartered.
Alarm bells went off at Frontline’s offices, inside Boston’s WGBH-TV, when investigative reporter Matt Isaacs, a member of Team Bergman tasked with fact-checking the documentary, told them Heung’s alleged relationship with Wynn couldn’t be confirmed beyond all doubt.
Frontline’s general counsel Dale Cohen and senior editor Andrew Metz had the impression that Isaacs was “nervous,” according to Fanning.
The perception was that he was backing away from a central element of the story, a feeling the Frontline team took seriously, given Isaacs’s groundbreaking work for Reuters dating back to 2009 on organized crime’s role in Macau’s insanely profitable gaming industry.
On September 21, nine days before the widely-promoted documentary was scheduled to air, Fanning and Aronson-Rath summoned Isaacs, Bergman, and London-based filmmaker Bill Cran, who had been toiling on the script, to an emergency meeting in Boston.
By that time the film had already been corrected to account for the ambiguity of Heung’s connections and the shadowy nature of the Macau business model, in which U.S. casino operators could never be sure who exactly they were in bed with.
But the meeting in Boston did not go well.
In a day-long marathon session, Aronson-Rath, a champion of Frontline’s investigative journalism who had worked closely with Bergman on a variety of projects over the past decade, aggressively grilled the Investigative Reporting Program team on their sources and reporting.
Isaacs acknowledged to the increasingly anxious Frontline producers that he wouldn’t have been able to definitively allege a Heung-Wynn connection if he were writing the story for Reuters—a statement that did nothing to increase their confidence.
But, as Isaacs wrote weeks later in a memo requested by Bergman, there was ample evidence suggesting that such a relationship might exist—the results of various private investigations, comments by former Nevada Gaming Control Board investigators, an assertion by a former Wynn executive, and a phone interview with the secretary of Macau’s gambling industry trade association.
Confronted with a direct question about their alleged connection to Heung, Wynn’s spokespeople had given various non-denial denials.
It just wasn’t a slam dunk.
“I was not nervous,” Isaacs emailed The Daily Beast about the meeting and his interactions with Frontline. “I was not in any way backing away from the reporting. I was there to make sure we got it right.”
He added: “Frontline has no basis to criticize our reporting. There were no errors. And any suggestion to the contrary is plain wrong.”
Members of Team Bergman argue that it was never their goal to prove a Triad-Wynn connection, and for Frontline to insist on such proof was “a red herring,” in the words of one participant.
Instead, the haziness of Heung’s status, and the clandestine nature of the junkets, were “emblematic” of the difficulties faced by U.S. companies attempting to follow the law.
At dinner in Boston after the September 21 meeting, the dispirited Bergmanites predicted that their documentary would once again be delayed; their fears were quickly confirmed, and Frontline took control of the final edit.
During an October 8 conference call, the two sides argued back and forth over Frontline’s decision to drop any mention of Charles Heung, to say nothing of other deletions—for instance, of an on-camera interview with Las Vegas Journal-Review columnist and Daily Beast contributor John L. Smith, who had been targeted in lawsuits by both Adelson and Wynn; and of President Obama’s joke at the 2013 White House Correspondents’ Dinner that he would have considered not running for reelection if only Sheldon Adelson had offered him $100 million.
“They were gumming it to death,” said a member of Team Bergman.
At one point during the conference call, according to contemporaneous notes taken by Bergman associate Zachary Stauffer, David Fanning ruminated on the negative impact of a potential lawsuit from Steve Wynn on the future of Frontline and its overworked staff.
The burden of producing 26 hours of television a year was already demanding enough, Fanning said.
Wynn’s lawyers, operating without budgetary constraints, could tie up Fanning and Aronson-Rath for months in discovery proceedings and depositions.
Addressing Bergman, Fanning pointed out that a story about gambling and organized crime in far-away Macau is very different from Bergman’s 60 Minutes investigation of the tobacco industry—a report that was followed by lawsuits and billions of dollars being paid in settlements to victims of lung cancer and other illnesses caused by their addiction to cigarettes.
Does Bigger Than Vegas serve the public interest enough to make it worth all the trouble and risk? Fanning asked.
Millions of people won’t be affected by Triads in Macau, the way they are from smoking, he argued.
According to Stauffer’s notes, Fanning added: “A Steve Wynn lawsuit would be a huge fucking hassle.”
Fanning later explained in an email to The Daily Beast: “This is all getting rather tedious to spell out, but it’s perhaps not surprising that in subsequent discussions, in the face of a litigious subject, we discussed the high cost of getting it wrong...Ultimately, we made a decision not to publish based on a much wider set of concerns. The film overall simply relied too much on innuendo and assumptions to be journalistically defensible. We didn’t believe we could recast the film (and frankly, at the expense of more reporting and filming, none of that would have happened in a collegial manner).”
Still, the two sides continued to tweak the film even as the facts on the ground were beginning to change; the authoritarian government on Mainland China was preparing to crack down on Triad-fueled fueled currency violations and money laundering in Macau. Various gambling junket operations shut down; arrests were being made.
By last month, a once-exploding industry was contracting violently. The Macau gaming bubble had begun to burst. The revelations in Bigger Than Vegas, as presented and edited, were slipping past their sell-by date.
“Lowell has been obsessed by this story for many, many years,” Fanning said. “He’s been on it a long time. It may have passed him by.”
He added: “One is certainly concerned about whether or not it rises enough to the public interest and that certainly goes to American corporations.
“But if you can’t raise significant issues about them, then it just becomes a piece of explanatory journalism about the nature of Macau—which is a reasonable story to tell. It’s colorful. There is a large part of the film that is really quite enjoyable to watch.
“But there’s nothing particularly surprising about the film. In some ways, it’s just not that provocative, if you will.”
Bergman, who since the documentary was scrapped has been partnering with The Guardian, NBC News, and even NPR on Macau gambling stories, said in a statement to The Daily Beast: “I am saddened by David’s statement. I have conferred with our team. We all believe the story was solidly reported, as demonstrated by the stories we have done with the Guardian and NBC News.”
Asked if he now wishes he never agreed to the documentary in the first place, Fanning sighed and conceded: “You could say that.”