HBO Defends Its "Responsible Journalism" at Defamation Trial

Bryant Gumbel

Sportscaster Bryant Gumbel co-hosted The Today Show for 15 years, starting in 1982.

On Tuesday, HBO finished opening statements at a New York trial with a vigorous defense of its journalism practices and a pointed counterattack on Mitre Sports International, which is suing the Time Warner subsidiary for allegedly tarnishing the soccer brand's reputation through a Real Sports With Bryant Gumbel report in 2008 about child labor in India.

Arguing on HBO's behalf is Dane Butswinkas, who had to sit for more than two hours on Monday as the other side brutally pummeled the broadcaster for allegedly producing a "hoax" child labor report containing a "pack of lies." Finally given an opportunity to present HBO's defense before a jury comprising 10 women and two men, Butswinkas worked hard to soothe the sting of proceedings a day earlier, when the broadcaster was nearly accused of killing a baby to get footage that tainted the plaintiff.

If Butswinkas had remarks prepared in advance of the trial, which spent more than five years getting to this point, he clearly made overnight edits to respond to inflammatory comments like Bernie Goldberg being a "clueless correspondent."

HBO's lawyer spoke about how Goldberg had worked in the industry for 40 years, starting out under Walter Cronkite. He praised Bryant Gumbel for a "long history of taking journalism to places it has never been." He told the jury how Real Sports coordinating producer Joe Perskie, who oversaw the piece, was a "full-time warrior," and commended associate producer Zehra Mamdani as being an "extraordinarily detailed woman" who spoke five languages and was a graduate of Cambridge. Not stopping there, he went into the names of the camera crew, listing their professional bona fides as well.

Responding to Mitre attorney Lloyd Constantine's opening, Butswinkas said the evidence would show that HBO's Sept. 16, 2008, segment titled "Children of Industry" was the result of "responsible journalism in action." Further, he said the "evidence will not support the notion that [HBO] relied on unreliable and seedy folks."

A day earlier, the jury heard Mitre's forceful opening and saw a mixture of clips from depositions taken, outtakes from HBO's report and harrowing scenes of child abuse in one of the world's most populous nations. The intended effect of the presentation was to show HBO staffers ignoring monitoring efforts of the Sports Goods Foundation of India, implicating Mitre for the abuse by "cleverly" crafting a report, leaning on Indian researchers to come up with phony footage of kids stitching soccer balls, duping internationally renowned experts, and more.

In his rebuttal, Butswinkas could have attacked Mitre's defamation theories by questioning whether viewers would really understand the report to be about the company, rather than about a problem in general. Butswinkas also might have attacked Mitre for not showing particular statements in the Real Sports report that were presented as fact rather than opinion. But those are nuances perhaps left for a judge rather than a jury.

So instead, Butswinkas defended a report that had taken two years to make it from conception to broadcast while showing some of the evidence in dispute in a more favorable light. For example, when Goldberg wrote of an early version of the segment, "I think this is unfair to Wal-Mart and Mitre," and demanded edits, that showed extreme carefulness, in the attorney's eyes. And when Mamdani admitted in her deposition to not having recalled watching the "Children of Industry" report, Butswinkas added that she only meant that she couldn't recall watching it at the time it was aired. "Because she had already seen it," he added.

But that's only part of the strategy to defend a show that allegedly contained fabrications, doctored interviews and tricky editing.

There's also HBO's arguments that its report was substantially true. Butswinkas told the jury that HBO's researchers originally looked at other brands including Nike, Kodak, Adidas, Fuji and Pepsi, but they turned up eight times as much footage on Mitre as any other. He said that early write-ups of "Children of Industry" included some of these brands, but they fell away because there wasn't enough corroborating evidence and the journalists were being responsible. Meanwhile, "Perskie named Mitre because he had more and better evidence of them," said HBO's lawyer.

The counterattack continued with Butswinkas showing the jury extended footage of children stitching soccer balls while nodding toward intimidation efforts by the plaintiff. Regarding some of the children who are said to have come forward with stories quite different than the one presented in HBO's show, Butswinkas told the jury, "You'll learn from evidence they initially denied meeting with Mitre's lawyers before they eventually came clean."

Butswinkas also talked about how independent monitoring of child labor stopped in 2003, how the math may have been manipulated on proclaimed inspections from the Sports Goods Foundation of India, how budgetary cuts have impacted the situation, and how there are policies in place to disallow cameras from seeing what's happening in factories.

From the tenor of each side's summary, the case will be about who's exploitative and who's socially responsible.

Is Mitre the dishonorable one for allegedly allowing child laborers to stitch its soccer balls for pennies or nothing? Or is HBO the shameless one for allegedly paying children to pretend to be stitching and standing idly by as sick children died nearly right before their cameras?

Is Mitre the righteous multinational that led international efforts to virtually eradicate child labor even if a zero-tolerance policy couldn't eliminate all instances of it? Or is HBO the hero in this story for taking two years to find distressing evidence that others wouldn't and still won't admit?

The truth might lie somewhere in the middle. But in a trial that's expected to take up to four weeks to complete, a jury is being asked to pick a side.