Smashing Undercover Journalism

Did you hear about the big civil rights organization that sent two undercover "testers" to work as a meat-wrapper and a deli clerk in a huge supermarket chain, after being tipped off by union activists about racial bias there?

Using fake resumes and concealing their true identities to get jobs, the testers carried hidden cameras and microphones to document a pattern of crude racial epithets and other racial harassment by supervisors and fellow workers.

When confronted with the evidence, the supermarket chain counterattacked by hitting the civil rights organization with a $7.5 billion lawsuit in the chain’s home state of North Carolina, with claims for racketeering, mail fraud, common law fraud, and trespass, among others. The trial judge let some of these claims go to a jury, which slammed the civil rights group with $5.5 million in punitive damages for using fraudulent tactics to obtain evidence.

Actually, I made the case up. But the facts closely track those leading to the Jan. 22 jury award of $5.5 million in punitive damages against ABC for the 1992 hidden-camera expose" of Food Lion Inc. by "PrimeTime Live." The main differences are that ABC broadcast some of the hidden-camera tapes-in a program the truthfulness of which Food Lion chose not to challenge in court-and that ABC was not exposing racism, but the alleged mislabeling and selling of out-of-date foods, including spoiled meat and fish that had been bleached and food rescued (at management’s direction) from garbage dumpsters. Food Lion says the broadcast was inaccurate and unfair.

Anyone who would be alarmed by the implications of my civil rights hypothetical should be alarmed by the $5.5 million penalty against ABC. If upheld on appeal, it would clear the way for similar awards against others who use undercover investigative techniques, whether to expose racism, or the selling of spoiled meat, or other wrongdoing. It might also lead to liability for the types of deception more routinely employed not only by civil rights testers, but also by restaurant critics and others who conceal their true identities or purposes in order to gain information.

But even some journalists applaud Food Lion and the jury for giving "PrimeTime Live" its comeuppance. Jonathan Yardley of The Washington Post, for example, celebrated the punishment of ABC for "self-evidently deceptive, dishonest tactics" and "cheap entertainment masquerading as investigative reporting."

I don’t like journalistic deception either, except when essential to getting important stories-like Nellie Ely’s undercover expose of mental asylums a century ago, or Upton Sinclair’s expose of Chicago’s slaughterhouses in The Jungle in 1906. Nor do I much like tabloid TV.

But punitive damages are not the right remedy for journalistic bad taste-certainly not when (as here) the undercover news gathering is not clearly illegal, and the plaintiff does not prove any falsehood or defamation. And juries should not be deciding whether such an expose should be hailed as a public service or punished as sensationalism.

Chief Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit-no pro-press patsy he-put it well in dismissing fraud and trespass claims against ABC under Illinois and other state laws for another "PrimeTime Live" hidden-camera expose, in J.H. Desnick, M.D., Eye Services v. ABC, 44F3d 1345 (1995):

[T]o protect a vigorous market in ideas and opinions… "tabloid" style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market… although it is often shrill, one-sided, and offensive, and sometimes defamatory … is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation…. If the broadcast itself does not contain actionable defamation, and no established rights are invaded in the process of creating it…, then die target has no legal remedy even if the investigatory tactics used by the network are surreptitious, confrontational, unscrupulous, and ungentlemanly. In short, the First Amendment protects schlock journalism too, just as the Supreme Court’s 1988 decision in Hustler Magazine v. Falwell protected the scabrous Larry Flynt’s publication of an "ad parody" depicting Jerry Falwell having sex with his mother in an outhouse.

Of course, Posner disclaimed the notion that the First Amendment privileges reporters in search of scoops to violate generally applicable laws. Nor does ABC claim any such privilege in the Food Lion case.

Some kind of limited news-gathering privilege might be supportable in theory. The First Amendment does bar laws "abridging the freedom of speech, or of the press," and those last four words should be construed to add something.

But in practice, any such claim of privilege would be a sure loser, both because the media are not loved and because of Supreme Court precedents like Cohen v. Cowles Media (1991), which held that the press "has no special immunity from the application of general laws."

ABC’s main arguments against any damage award to Food lion are that (1) ABC’s undercover techniques broke no law, no matter how sleazy they may seem to some jurors and journalists; (2) even if ABC did violate some North Carolina law, Food Lion could not recover any of the billions of dollars it claimed to have suffered as a result of the broadcast, because Food lion did not sue for defamation or challenge the truthfulness of the broadcast in court; and (3) the trial judge should have barred any punitive award for reasons including the danger of chilling constitutionally protected speech.

The first of these arguments is reasonable, if unlikely to prevail in this case; the second was properly upheld by the trial judge: the third is compelling and should be a winner.

As to the legality of ABC’s conduct, not every deception amounts to fraud. That ton typically involves use of deception to deprive the victim of money or property. Nor does every deception to gain access to commercial premises amount to trespass.

ABC’s deception of Food Lion was, to be sure. relatively elaborate: In addition to using phony resumes and lies to get their jobs, the two ABC investigators also spent more than a week as Food n employees, working harder at poking around hi hidden mini-cameras for ABC than at wrapping meat for Food Lion.

But it is at least debatable whether U.S. District Judge N. Carlton Tilley Jr.. of Greensboro, was correct in holding that this conduct could be found to be fraud, trespass, and breach of fiduciary duty under North Carolina law.

Thus, ABC and its employees cannot be said to e acted in deliberate disregard of any clear legal duty. That’s one of the reasons the punitive award should be overturned, both under state law and under the Supreme Court’s holding last year in BMW v. Gore that the Constitution bars grossly excessive punitive awards, especially for conduct clearly unlawful.

A second reason for striking down the punitive award is its wild disproportion-a 3,900-to-1 ratio, compared with 400-to-1 in BMW v. Gore-to the award of a mere $1,402 in actual damages. Since judge had precluded any award of "broadcast damages," the only compensatory damages were $1,400 that the jury found to be the cost to Food Lion of hiring, training, and paying employees who were secretly working for ABC. plus $2 in nominal damages for trespass and breach of fiduciary duty.

A third reason for striking down die punitive award is the danger to First Amendment values in allowing juries to punish the publication of truthful exposes, under die pretext of punishing unlawful news-gathering techniques that, in fact, do relatively little harm. The Supreme Court has long recognized the need for safeguards against punitive awards in defamation suits that could chill protected speech; similar safeguards are necessary in suits like this one.

Food Lion’s best argument for a punitive award was that it is the only way to deter ABC and others from doing the same thing again, and again, in pursuit of ratings and profits. Such an argument might be minimally plausible (if not convincing) in a future case-if and when ABC or someone else does do it again (in North Carolina). But it doesn’t make much sense in this case, given the absence of prior notice that such undercover techniques were unlawful in North Carolina.

Nor was there anything so malicious or oppressive about ABC’s conduct as to warrant a punitive award. ABC did not kill or batter anyone. It did not defraud anyone of money or property. It did not break and enter. It did not invade the privacy of anyone’s home, or eavesdrop on private conversations, or publish intimate details of anybody’s life. It was not found to have defamed anyone, or to have broadcast anything inaccurate or unfair.

ABC did expose some practices at Food Lion that prompted many viewers to do their shopping elsewhere. And that’s what this case is really about.