Trash tort or trash TV?: Food Lion, Inc. V. ABC, Inc., and tort liability of the media for newsgathering

St. John's Law Review, Winter 1998 by Scheim, Charles C

I don't like to hurt people. ... I really don't like it at all. But in order to get a red light at the intersection, you sometimes have to have an accident.

Jack Anderson, Investigative Journalist1

Although criticism of the press is certainly not new,2 the media3 has recently come under increasing scrutiny for what critics see as a more intrusive style of tabloid journalism.4 The First Amendment5 generally immunizes the press against liability to public figures for damages resulting from the publication of unfavorable material.6 Critics assert that this protection has emboldened the press to use unlawful and tortious means in newsgathering.7

Subjects of unfavorable or intrusive media investigations have changed legal tactics and have brought actions against the media under tort theories that differ from the traditional suits in defamation and libel.8 Media supporters have called these suits a "wave of `trash torts.' "9 Rather than seeking damages for the publication of injurious reports, plaintiffs have claimed that the newsgathering activities of the media prior to publication were tortious.10 Such plaintiffs have argued that the media does not have any special constitutional protections in gathering news, seizing upon the Supreme Court's general statement that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."11 In a recent federal action, a North Carolina jury awarded Food Lion, Inc.12 ("Food Lion") over $5.5 million in punitive damages from Capital Cities/ABC13 ("ABC") and certain reporters for trespass, fraud, and breach of loyalty.14 The damages stemmed from a 1992 PrimeTime Live undercover story which exposed unsanitary food conditions at Food Lion supermarkets in North and South Carolina.15

The litigation was sparked in 1992, when ABC's legal department and management approved proposals by two PrimeTime Live producers to conduct an investigation of Food Lion.16 Once management approved the use of undercover cameras for the investigation, the producers sought employment at various Food Lion stores.17 To ensure that the producers were hired, they "utilized means including the mails and interstate wire facilities to create false identities and backgrounds, complete with supporting documentation," including fake resumes and false references demonstrating previous experience.18 Two separate Food Lion supermarkets eventually hired both producers as atwill employees.19 While working, the producers wore hidden cameras20 and filmed the activities of fellow employees.21 Portions of the film were recorded in areas not open to the general public.22Their hidden cameras captured images of other Food Lion employees bleaching and selling out-of-date meat and fish, as well as repackaging and reselling food that had been thrown in garbage bins.23After filming approximately forty-five hours of video footage, the producers quit their positions under false pretenses.24

Food Lion did not seek an injunction to prevent the broadcast of the PrimeTime Live report.25 However, prior to the November 1992 scheduled air date, Food Lion filed a suit for damages against ABC. The complaint set forth fourteen different causes of action, but did not allege defamation.26District Court Judge N. Carlton Tilley refused to dismiss most of these claims 27 and rejected ABC's arguments that the producers' actions were protected by the First Amendment.28 Citing the Supreme Court's decision in Cohen v. Cowles Media Co., the court held that the laws that applied to Food Lion's claims of fraud, trespass, and breach of loyalty were "generally applicable laws which do not target the press."29 The court, however, relied on the Supreme Court's decision in Hustler Magazine, Inc. v. Falwell30 and held that Food Lion could not recover damages to its reputation arising out of the broadcast of the PrimeTime Live report.31

This Comment examines the two issues that the Fourth Circuit will likely address in the Food Lion appeal. Part I considers ABC's claim that the network is constitutionally privileged to engage in routine newsgathering practices and is therefore not liable to Food Lion. Although the Supreme Court has not directly ruled on the issue, this Comment examines the case law leading up to the Food Lion case. Additionally, Part I asserts that there are other means to ensure that the media is not unduly burdened and concludes that a better way of balancing the competing interests is to refrain from immunizing the press for non-publication related damages. Part II argues that the district court correctly applied traditional defamation jurisprudence by denying Food Lion damages for loss of reputation allegedly caused by ABC's report. Part III discusses various proposals to reconcile the rights of those targeted by investigative reports, and how such proposals would impact the right of the public to receive information without undue regulation. This Comment supports an approach which would allow an aggrieved party to recover all compensatory, non-publication damages arising from the tortious conduct, but prevent plaintiffs from recovering punitive damages unless the conduct is criminal or reckless. Such an approach would prevent a chilling effect on speech.