ABC and Food LionInvestigative journalism and ethics*

*Some information for this presentation from: The Reporters Committee for Freedom of the Press http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-spring-2012/landmark-food-lion-case.edu/comm/comm403_jsb15/foodlion.html

The Story

• The landmark Food Lion case• Kristen Rasmussen (• Journalists who lie on employment applications to

gain access to private facilities for newsgathering activities are not protected by the First Amendment and may be liable for trespass or other offenses, a federal appellate court ruled more than a dozen years ago in a ruling that remains the leading case on the issue.

The Reporters Committee for Freedom of the Press

The Story

• In November 1992, two ABC News producers obtained jobs at Food Lion grocery stores in North and South Carolina by submitting applications with false references, misrepresenting their educational and employment experiences on their résumés and omitting their current employment with the network.

• ABC broadcasted a report on “PrimeTime Live” alleging that Food Lion’s meat department at those stores required employees to engage in unsafe, unhealthy or illegal practices, including selling old meat that was washed with bleach to kill odor, selling cheese that had been gnawed by rats and working off the time clock.

What Reporters Did at Food Lion• Each worked undercover only one or two weeks at

the store, and while there used hidden cameras to secretly record grocery store employees treating, wrapping and labeling meat, cleaning machinery and discussing meat-department practices.

Lawsuit• Food Lion sued ABC in July 1995 in federal court in

Greensboro, N.C., alleging fraud, breach of the duty of loyalty, trespass and unfair trade practices under North Carolina law. The chain argued that ABC used illegal newsgathering methods to obtain the information for the report.

• In December 1996, a jury found ABC liable for fraud, trespass and disloyalty. The next month, the same jury awarded Food Lion $1,400 in compensatory damages and $5.5 million in punitive damages for fraud, along with $2 in nominal damages for breach of loyalty and trespass. But the U.S. District Court found the punitive award excessive and reduced it to $315,000.

Appeals Court Conclusions

• Perhaps more significantly, though, the appeals court concluded that the ABC producers trespassed.

• The court explained that the journalists had permission to be in the stores where they worked because Food Lion had hired them, but they did not have permission to secretly videotape footage in non-public areas of the store for use on ABC because Food Lion had not consented to their presence for that purpose.

What the Courts Decided

•The court held that the lower court correctly declined to apply a First Amendment analysis to Food Lion’s breach of loyalty and trespass claims.

•The laws regarding employee loyalty and trespass were laws of general application, from which the press could not be exempt, and the application of those laws to the media would have merely “an ‘incidental effect’ on newsgathering,” the court found.

Jury Award•The jury refused to award punitive

damages against the reporters, Dale and Barnett. In post-trial proceedings the district court ruled that the punitive damages award was excessive, and Food Lion accepted a remittitur to a total of $315,000.

Proving

• To prove fraud under North Carolina law, the plaintiff must establish that the defendant (1) made a false representation of material fact, (2) knew it was false (or made it with reckless disregard of its truth or falsity), and (3) intended that the plaintiff rely upon it. In addition, (4) the plaintiff must be injured by reasonably relying on the false representation.

• It is undisputed that Dale and Barnett knowingly made misrepresentations with the aim that Food Lion rely on them. Thus, only the fourth element of fraud, injurious reliance, is at issue. Food Lion claimed two categories of injury resulting from the lies on the job applications: the costs associated with hiring and training new employees (administrative costs) and the wages it paid to Dale and Barnett.

Another Side of this Story• ABC's own admissions showed that profits, not

public service, motivated the segment. ABC aired the segment during the "sweeps period," the week in which viewership determines advertising rates. ABC vice president Richard Wald testified that "one rating point of the evening news is worth millions to the bottom line.“

• Economics is paramount in the news business, Wald said. Since World War II "the news was distributed to the public, but it was sold to an advertiser. And what the advertiser bought was not the quality of the news but the quality of the audience.““

Accuracy in Media: http://www.aim.org/publications/special_reports/foodlion.html

Other Testimony• Important dollars-and-cents testimony came from Robert

Lissit of the S. I Newhouse School of Public Communications at Syracuse University, a expert on TV content analysis.

• Under questioning by Michael J. Mueller of the Akin, Gump trial team, Professor Lissit testified that he found that PrimeTime Live aired 141 segments involving hidden cameras from August 1989, when the program began, through May 1996--80 original shows, 50 reruns and updates,and 11 miscellaneous.

• The highest concentration, 35 of the 80, came during the so-called "sweeps period" of September through November. October and November, he said, "are the two months generally believed to provide the greatest return, the highest earnings for a network." November is the most important month for ratings for local stations. He said, "The higher the rating the higher the [advertising]rate. The more they can charge for the commercials.

The Question of

• The debate over ethics in this case continues in the court of public opinion, as well as in newsrooms and corporate boardrooms across the country. While there are legitimate questions to pose about the morality of Food Lion’s actions, most of the discussion focuses on journalism ethics and issues of honesty, accuracy and fairness.

• There is a pivotal question: Is it ever justifiable for a journalist to violate the principle of honesty to honor the principle upon which journalism is founded, a duty to provide the public with meaningful, accurate and comprehensive information about significant issues?

See this website for more information:http://www.poynter.org/uncategorized/2125/abc-and-food-lion-the-

ethics-questions/

The Question of

Timothy Lynch, assistant director of the Cato Institute’s Center for Constitutional Studies, says this: The media should expose corporate misconduct. But journalists must respect the rights of others and operate within the bounds of the law. That’s the moral of Food Lion v. ABC News.

http://www.cato.org/publications/commentary/food-lion-case-are-journalists-above-law