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

Food Lion and Cohen are similar in some respects and different in others. In both cases the claims did not arise from the publication of the harmful material. Thus, the plaintiffs could have alleged both claims without publication or broadcast.75 In Food Lion, the actual broadcast of the report was not relevant to the liability of the network.76 The district court analogized the producers' conduct to the publisher's breach of its promise of confidentiality in Cohen, and determined that the producers' conduct violated "generally applicable criminal or civil laws in the name of newsgathering."77 However, the court failed to recognize that gathering news is fundamentally related to the publication of the results of the investigation, thus holding the media liable for such conduct may potentially chill speech. By contrast, the enforcement of plaintiffs promissory estoppel claim in Cohen can be distinguished because it may actually give confidential informers more confidence that their identities will be protected, thus beneficially increasing the flow of information to the public.78

B. Lower Court Cases

An early, widely influential case attaching tort liability to newsgathering conduct is Dietemann v. Time, Inc.79 Two reporters employed by Life magazine, acting with the authority of the Los Angeles District Attorneys Office, used a ruse to gain entry into plaintiffs home, where defendants and authorities believed he was running a fraudulent medicinal "healing" practice.80 The defendants surreptitiously photographed the plaintiff "examining" one of the reporters, and recorded their conversation with a hidden microphone.81 Police officers eventually arrested the plaintiff for practicing medicine without a license.82 The plaintiff later sued Time, Inc. claiming that the defendant's employees invaded his privacy when they entered his home without permission. The trial court awarded the plaintiff general damages of $1000.83

The Ninth Circuit rejected Time, Inc.'s claim of constitutional protection based merely on the subsequent publication of improperly acquired information.84 The court held that defendant's use of subterfuge to gain entry into plaintiff's home to photograph him without his consent gave rise to a cause of action.85 The court interpreted Time, Inc. v. Hill to support the proposition that the Constitution affords no protection to media defendants for unlawful pre-publication acts.86 The court noted "[publication] is not the foundation for the invocation of a privilege. Privilege concepts developed in defamation cases and to some extent in privacy actions in which publication is an essential component are not relevant in determining liability for intrusive conduct antedating publication.87

The Dietemann court's reading of Time v. Hill is suspect. As previously discussed, in Hill the Supreme Court specifically refused to offer a view on whether the Constitution affords protection to reporters for improper newsgathering tactics.88 Dietemann did, however, state the underlying principle upon which courts, including the Cohen and Food Lion Courts, have upheld plaintiffs' claims against the media: