Weekly Wire
Weekly Alibi Exactly how far can a reporter go to get a story?

By Erica Ford

DECEMBER 7, 1999:  Exactly how far can a reporter go to get a story? According to a recent U.S. Court of Appeals opinion, reporters might be able to lie a little, but they can't break everyday laws.

The court's ruling arose out of a lawsuit between ABC and Food Lion grocery stores. In 1992, two ABC reporters got jobs at Food Lion by using falsified job histories. The reporters wore hidden cameras to work and got footage of Food Lion employees selling old meat. ABC aired an exposé and won a journalism award for the story. Food Lion was displeased and sued ABC.

Food Lion claimed that ABC and its employees had committed fraud because the reporters had obtained their positions at Food Lion by misrepresenting their identities. Food Lion also charged that the reporters breached their duty of loyalty to their employer and trespassed on company property.

Food Lion did not sue for libel, a traditional claim for victims of unfavorable news coverage. Libel suits attack the substance of a story, which is protected by the First Amendment. Thus, someone suing for libel must prove that the substance of the story is false and that the media published the story with reckless disregard as to whether it was false. Unfortunately for Food Lion, ABC's footage was pretty clear, and it would have been unlikely that Food Lion could have met the First Amendment challenges presented by a libel claim. So rather than attack the substance of the story, Food Lion attacked the methods used to get the story.

A jury agreed that ABC and the reporters committed fraud, trespass and breach of loyalty, and awarded Food Lion $1,402 in compensatory damages, and $5.5 million in punitive damages on the fraud claim. Food Lion had also asked for reputational damages, which would include lost sales, loss of good will, and damage to the store's reputation. The jury did not allow reputational damages, and the $5.5 million was cut by the trial judge to $315,000.

ABC appealed, arguing that First Amendment protections should have barred all of Food Lion's claims. Food Lion cross-appealed, arguing that it should have been entitled to reputational damages.

In October, the appellate court reversed the fraud verdict because Food Lion could not prove that the damages it claimed were caused by the reporters' misrepresentations. However, the Court of Appeals did affirm the verdicts for trespass and breach of loyalty, finding that the reporters were working for one employer (ABC) that required them to injure another employer (Food Lion).

Most importantly, the court rejected ABC's argument that all of Food Lion's claims should have been subjected to First Amendment scrutiny because of the importance of news gathering activities. The U.S. Supreme Court had already determined that members of the media are required to abide by generally-applicable laws as they go about their news gathering business. For example, a reporter cannot promise anonymity to an informant and then use the informant's name in a story without being subject to liability if the informant loses his job as a consequence. Thus, the Appellate Court determined that Food Lion had a right to bring suit against ABC for its violation of generally-applicable laws like trespass and breach of loyalty.

The court also rejected Food Lion's claim for reputational damages, finding that such damages could not be collected without meeting the reckless disregard standard, which Food Lion could not do. The court felt that it is important for the media to disseminate information to the public, even if a reputation is damaged by an unfavorable story.

The opinion left Food Lion with only $2 in damages, nominal damages awarded by the jury to represent trespass and breach of loyalty.

However, a dissenting opinion by Judge Paul Niemeyer made some interesting points. Niemeyer expressed concerns about the media's tendency to sensationalize stories and believed that "ABC employees baited fellow [Food Lion] employees to say and do things that [the reporters] knew would undermine Food Lion's standing food-handling practices." For example, when one of the reporters saw food that was expired, she sold it to a member of her camera crew rather than throw it away. Also, a reporter who saw a dirty meat grinder just filmed it, rather than cleaning it. Such conduct makes it difficult to determine how bad Food Lion's practices would have been if the reporters hadn't been trying to make it look bad.

Judge Niemeyer's dissent is both troubling and refreshing. Troubling because it strips away the illusion that the news media is a benevolent, truth-seeking force in our society. It's refreshing for the same reason.

News is often not about truth or journalistic integrity. It's sometimes about money. Getting money requires high ratings, and TV news is notorious for sensationalizing stories to get higher ratings.

It is the fear of sensationalism that makes the Food Lion case difficult. If we could be sure that the ABC exposé was 100 percent true, then it would be much easier to say that the news media should be protected from lawsuits, even when reporters misrepresent their identities to those they are investigating. But as soon as we distrust the media, as soon as we fear that, maybe, the Food Lion employees did gross things only because they were encouraged and egged on by undercover reporters and not because it was standard procedure, then support for the First Amendment goes down the tubes.


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