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Food Lyin’?

January 15, 1997 at 12:00 AM EDT

ELIZABETH FARNSWORTH: On November 5, 1992, the ABC News Magazine “Prime Time Live” broadcast one of its high profile investigative reports. The story accused Food Lion, an 1100-store grocery chain, of selling old food, cheese gnawed by rats, and spoiled meat washed in bleach to kill the odor. ABC used some controversial techniques to learn about Food Lion. Two producers worked undercover in two North Carolina supermarkets, lying on their resumes to get the jobs. They each wore a wig hiding a tiny lipstick-sized camera, and each carried a concealed microphone. Citing the ongoing case, ABC declined to allow the NewsHour to show any of the footage.

Food Lion did not deny the undercover report’s allegations, but two months before the story aired, the company filed suit against ABC, charging the network with fraud, trespassing, and other deception. On December 20th last year a Greensboro, North Carolina jury ruled against ABC. Ten days later the jury awarded Food Lion $1,402 in compensatory damages. Their grocery chain had sought twice that amount as compensation for wages paid to producers, plus the company’s costs to train them. But that’s not the end of the story. Food Lion is also seeking up to $2 billion in punitive damages to “deter illegal conduct” by news organizations.

A jury has been deliberating the punitive damages in this case for two days. Today jurors told the judge they were deadlocked. He asked them to try again tomorrow. Now, a debate on the issues raised by this case. We’re joined by Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, a non-profit association that provides legal defense and research assistance to journalists, and Martin London, an attorney with the New York firm Paul Weiss. He has tried a number of cases involving media news gathering practices. Mr. London, in your view, what’s the significance of the ABC-Food Lion case?

MARTIN LONDON, Attorney: (New York) Well, I think the significance is very great. I think that the jury has already spoken, even though we don’t have a verdict on punitive damages, and this jury may not be able to reach a verdict on that. But what the jury has already said is that ABC has violated the privacy rights of a citizen of the state of North Carolina, and the jury doesn’t like it. We all enjoy privacy rights. We insist on privacy rights. And it’s not enough to say, well, I’m trying to find the truth. We don’t allow the policemen to break into our bedroom. We don’t allow the policemen to break in our office, and we don’t allow ABC to do that either. What happened in this case is that the jury found that ABC used fraudulent techniques to gather information. ABC has no right to use fraudulent techniques.

ELIZABETH FARNSWORTH: Okay. I’ll come back to that. I just want to get to the significance of the case, and then we’ll come back to the specifics. What do you think? What’s the significance of this case, Ms. Kirtley?

JANE KIRTLEY, Reporters Committee for Freedom of the Press: I think the long-term significance is that we’re going to have a lot of news organizations that will think long and hard before they take on their local industry, their local business because they will be concerned that they’ll be dragged through the courts with spurious claims such as the ones that have been brought by Food Lion in this instance, trying to take tort law, wrongful conduct, civil law, and twist it around to cover behavior that in my mind was clearly justifiable by the motive that ABC had. And the motive was to uncover serious hazards concerning public health and safety.

ELIZABETH FARNSWORTH: We’re used to seeing or hearing about libel cases, defamation cases that deal with the content of the case. This was all about news gathering techniques. Why?

JANE KIRTLEY: I think primarily because Food Lion knew that as a public figure it would have an almost insurmountable burden of proof in the court to show that ABC knew or had reason to know that what it was publishing was untrue. The fascinating thing about this is as a legal matter in court Food Lion has not challenged the accuracy of the story. They’ve certainly done some very creative spin doctoring to get in people’s mind that it’s inaccurate, but as a legal matter it has not been challenged in court.

ELIZABETH FARNSWORTH: Mr. London, we’re seeing more cases that challenge the news gathering techniques, aren’t we?

MARTIN LONDON: Yes, we are.


MARTIN LONDON: Well, I think that the prime cause in my own personal view is tabloid journalism. The television news magazines are programs that the courts have recognized as being shrill, one-sides, often defamatory. They’re part of the marketplace. They’re in a desperate search for ratings, and they do things that are important in order to get more viewers. They do so, and in the process, they step on the rights of all the rest of us. I think what Jane says is interesting, that in her view what ABC did was entirely justified. I’d like to know who it is that makes the decision of when you’re allowed to lie, cheat, when you’re allowed to invade people’s offices, when you can come into their homes.

Is Jane Kirtley going to make that decision? Is some producer at ABC going to make that decision? A policeman couldn’t have done what ABC did. The issue here is not truth. The issue is conduct. We are a society that considers that we have a liberty interest in the dignity of the places in which we expect privacy. You cannot break into my office with a crow bar. If I invite you to my office, you’re welcome to come. If I don’t consent to your coming, then don’t come in there. If you come in there, you’re trespassing. Now, it matters little to me whether you trespass in my office either by using a crow bar to break down the door, or whether you use fraud and deceit to gain entrance. In either case, you have done the same thing.

ELIZABETH FARNSWORTH: Okay. Let’s let Ms. Kirtley answer the question that you put.

JANE KIRTLEY: Well, I think that the trespass issue–and there certainly is a technical trespass here, or appears to have been, because the consent Food Lion gave to ABC was presumably procured with Food Lion thinking that they were meat employees when, in fact, they were not, but the interest that trespass is intended to protect is basically the inviolability of property. Primarily, as Marty knows, we’re talking about personal kinds of property, I mean, your home. This was not their home. This was a place of business. And, granted, that the ABC employees did get access to parts of the building that were not typically open to the public, but I simply don’t see that the damage to them was so severe that it would justify a lawsuit of this magnitude. And I would add that I think the jury has agreed at least so far by giving them exactly what they’re entitled to under a breach of contract claim, which is to get back the money that they paid to ABC employees who didn’t know what they were doing when they were cutting meat.

ELIZABETH FARNSWORTH: Just one second. Is it your argument that what ABC found in this place or alleged to have found in this place and showed is worth the–the–it makes sense because of the worth of what they found that the producers lied about who they were, wore wigs, used hidden cameras?

JANE KIRTLEY: I don’t think that it’s possible for me to justify every editorial decision that every news organization makes, but what I do know is that a court of law is not the place to make those decisions. Courts are not constituted to become ethics tribunals for journalists.

MARTIN LONDON: This isn’t a matter of ethics. Excuse me, Jane. It’s not a matter of ethics. It’s a matter of rights. I disagree with your view of the law and happily, the Supreme Court does too. The Supreme Court has specifically said–let me read a sentence to you–“The press may not with impunity break and enter an office or dwelling to gather news.” It is, therefore, beyond dispute that the publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. That’s the end of the quote.

ELIZABETH FARNSWORTH: You’re making the argument that because you can’t break and enter, you also can’t lie about who you are?

MARTIN LONDON: Well, of course. What ABC did in this case was they gained entrance to a facility, and they conducted themselves not by sneaking in at night by breaking the lock, but they gained a consent by fraud and deceit. They went through an elaborate process of false resumes, fictitious entries on job applications. They cheated their way into the premises. Now, the jury has already found that. And on the issue of damage, there’s a long story to be told here, and we don’t know what the end is going to be. They only asked for, as I understand it, and correct me if I’m wrong, Jane, some $2,000 in compensatory damages, and the jury gave them $1,000. Now there’s a punitive damage phase in which the jury may or may not be able to reach a decision. But the fact is this jury found that this broadcast network violated the rights of this company. They violated their privacy rights.

JANE KIRTLEY: To the tune of $2, Marty.

ELIZABETH FARNSWORTH: Mr. London, briefly, would you answer this question for me. There’s a long history in the press of using false identities. In the 1880’s a “New York World” reporter went into a woman’s asylum and revealed terrible mistreatment in the asylum. She got herself committed to the asylum. Is there no case that would warrant these false identities, or in this case a hidden camera?

JANE KIRTLEY: Well, it’s a very, very slippery slope. My view is that–and the law, I believe, is that a newspaper cannot break and enter, and if gaining entrance by fraud and deceit is the functional equivalent of breaking and enter, then the newspaper does not–does not have a right to do it. And the truth is that for the most part newspapers don’t do it. The “New York Times” doesn’t do it. The “Wall Street Journal” doesn’t do it. Let me read you a sentence that A.M. Rosenthal wrote recently. He said–

ELIZABETH FARNSWORTH: He’s a “New York Times” columnist.

MARTIN LONDON: From the “New York Times.” Correct. He said, “It demeans journalism to insist on the right of reporters to do in professional life something they would never willingly allow done to themselves, or to their news operations.” It is demeaning. It’s demeaning to the press, and it’s demeaning to the victims of the fraud and deceit. This program that we’re talking on now, this “NewsHour,” has a long and valued tradition of covering foreign affairs, domestic affairs, economic affairs, political affairs. It makes a wonderful contribution to our First Amendment right to know. They don’t need, so far as I’ve been able to observe, they don’t need the trickery and deceit. They don’t need masks. They don’t need hidden cameras in order to report the truth and to enlighten the public. These hidden camera techniques are very, very popular now because they tickle the fancy of the television audience, and they drive up ratings in an area of journalism that is rapidly sinking into sleaze.

ELIZABETH FARNSWORTH: Ms. Kirtley, are they demeaning these techniques?

JANE KIRTLEY: Well, I think that what we see, of course, is that the public loves them, and that’s part of the reason that they are done. We also have an electronic–

ELIZABETH FARNSWORTH: Some of the public doesn’t love them because the jury decided against them.

JANE KIRTLEY: Well, the fact is I think that they have kind of a love-hate relationship. They dislike them in the abstract, but they enjoy watching the stories, as the ratings demonstrate. But I think when we talk about slippery slopes, I’d like to emphasize that while many journalists do not use the techniques that ABC used, many journalists are not always completely forthcoming with their sources about what kind of story they’re going to write, or what their agenda is. Many journalists go where they are not welcome. And it seems to me that it is only a very short step from this particular suit against ABC to all kinds of nuisance actions about any journalist who is trying to uncover a story about an important matter that the subject doesn’t wish to have uncovered. I understand Mr. Martin is very concerned about the sensibilities of Food Lion. I’m a lot more concerned about its customers who were eating that rotten food.

ELIZABETH FARNSWORTH: Okay. I’m sorry, Mr. London. We have to go now, but thank you very much. I imagine we’ll come back to this sometime. Thank you.