Last Updated: May 26, 1999
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Press and the law
Editors hear the roar of the Food Lion case
By Linda Lightfoot
On Jan. 22 a jury in federal court in Greensboro, N.C., awarded Food
Lion $5.5 million in punitive damages after finding that ABC committed
fraud, trespass and breach of loyalty in a 1992 "Prime Time Live" broadcast
dealing with conditions in the meat-handling departments in three Food
Lion supermarkets.
The latest round of handwriting over the use of hidden cameras and other
undercover tactics by journalists is now in full sway.
The truth or falsity of the "Prime Time Live" broadcast was not an issue
in the trial. In fact, the presiding judge told the jurors they had to
assume the broadcast was accurate. The case centered on ABC’s tactics.
Two network producers lied on applications for entry-level jobs in three
Food Lion stores. While at work they concealed tiny cameras in their wigs
and microphones in their bras.
The jury concluded that Food Lion proved its allegations of fraud, trespass
and breach of loyalty, but awarded a mere $1,402 in compensatory damage.
The jury then had to decide whether to punish the television network for
its tactics by awarding punitive damages. Food Lion’s lawyer suggested
an award in the range of $52.5 million to $1.9 billion.
In post-trial interviews, jurors have said they were badly split. At
least on juror said he wanted to award no punitive damages, while another
juror held firm to a $1 billion award. The jury appeared deadlocked, but
eventually arrived at a compromise verdict of $5.5 million.
Recently, ABC News, as expected, appealed the verdict.
The American Editor asked several prominent editors, many of whom
pride themselves on their paper’s investigative reporting, to reflect upon
whether the verdict in the Food Lion case will affect what they do at their
own paper and the extent to which the verdict will affect the print media
in general.
Here is what those editors had to say:
John Carroll, Editor and Senior Vice President, The Baltimore Sun
It is unlikely that The Sun would be involved in litigation similar
to the Food Lion case because we have a policy against misrepresenting
ourselves in pursuit of a story. There may be a once-in-a lifetime story
in which the need to expose wrongdoing is so great and the means at our
disposal so limited that we would misrepresent ourselves, But under almost
any circumstance I could imagine we wouldn’t do it.
Gene Foreman, Deputy Editor, The Philadelphia Inquirer
I am troubled by any jury verdict that punishes journalists for doing
their jobs. If the North Carolina jury wanted to establish boundaries for
journalists’ behavior that exclude fraudulent employment applications and
trespassing, I can understand. But the jury did not stop at staking out
boundaries, it went well beyond by assessing punitive damages that were
clearly exorbitant. One does not have to agree with the TV reporters’ methods
to appreciate their public service in exposing a health hazard.
Having said that, I don’t believe the jury verdict will have much effect
on how newspaper journalists operate, I think most newspapers already have
a strong aversion to deception and would resort to it only when there is
no other way to report a vitally important story. There are ways newspapers
could have reported a Food Lion story without deception.
David Hall, Editor, The Plain Dealer, Cleveland, Ohio
The ABC-Food Lion case created the usual analytical babble about what-it-all-means.
As we took at our news operations, however, Plain Dealer editors yawn.
For several years our investigative reporting has expanded. Expansion
has brought higher and tighter standards. We insist not only on accuracy,
but also fairness to readers as well as targets. Fairness to readers means
reporting they can trust: named sources, clear rebuttal, documented information,
ethical reporting.
In recent months our reporters have investigated the Federal Aviation
Administration regarding airline safety, two corrupt public officials,
both out of office, and the Food and Drug Administration over illegal drug
tests on humans. In every case, the subjects were confronted head-on, and
early.
Mel Opotowsky, Managing Editor, The Press-Enterprise, Riverside,
Calif.
The Press-Enterprise has had a strong predilection against misleading
sources, even against the simple practice of a reporter’s failing to identify
him/herself In fact, we have a policy against telephone, taping an interviewee
without his/her knowledge even though California law has an interpretive
loophole. So this decision against the network would not change our practice,
which is to rarely, reluctantly use any subterfuge to gather information.
But we also hold that circumstances may, in fact, lead us to conclude that
subterfuge is the only way to get at important information so the technique
is not ruled out. And if we did, it would have to be with the enthusiasm
of the reporter and editors directly involved, including the managing editor
and the editor (Editor-Publisher Marcia McQuern), after having discussed
all the implications.
Let me add that I also would be very reluctant to let reporters take
other jobs in such a scheme because they would got used to the coffee breaks.
The decision, however, will chill those who tend to use subterfuge more
easily, and this generally would be TV outlets who rely so heavily on moving
pictures to tell a story. To get these pictures they face a tougher challenge
than reporters or even still photographers in most cases. And the chill
here resulting from the decision will be so bad they’ll have to wear gloves
when operating the cameras.
Chris Peck, Editor, The Spokesman-Review, Spokane, Wash.
Journalists in all media today need to be mindful and concerned over
the public’s distrust of us,
A story built on hidden cameras and reporters posing as employees of
a company works against the ethics of fairness and adds to the public’s
distrust. Even if the facts of a story are substantially true, as it appears
in this case, the damage done by employing tools of secrecy and deception
work against the story and probably negates its impact.
Perhaps there is an appropriate time to use hidden cameras and undercover
journalists — times of national crisis or when a significant danger is
present.
Using these techniques to expose a couple of rotten fish and a pound
of ripe ground beef isn’t worth the damage done to the credibility of journalism.
Sandy Rowe, Editor, The Oregonian, Portland, Ore.
Like most newspapers, we do not believe it’s necessary to use deceptive
practices to do investigative reporting. I think most newspapers in most
situations strenuously avoid the use of misleading or deceptive practices.
However, I’m troubled by rulings like this that effectively remove certain
tools from our hands. This particular decision is another sign that we
didn’t need of the cynicism — even disdain — the public has for our perceived
intrusiveness. So, decisions that should be purely journalistic and/or
ethical now end up having a legal and a public relations component.
Jacqueline Thomas, Washington Bureau chief, The Detroit News
The case involving Food Lion and ABC points to the importance of separating
the use of hidden cameras and misrepresentation as journalistic practices.
In certain circumstances, hidden cameras may be an appropriate method of
documenting information being gathered for a story. Deception and misrepresenting
rarely are. Moreover, it is not clear whether ABC explored all other, reasonable
reporting avenues before it opted to resort to deception.
Lightfoot, executive editor of the Baton Rouge (La.) Advocate, is
co-chair of The American Editor Committee and an ASNE board member.
