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

Judge Posner similarly dismissed the clinic's claim of fraud, which was based on the clinic's alleged reliance upon a series of assurances by the defendants.104 The court characterized the network's statements as puffery, not to be taken seriously by intelligent professional physicians such as Dr. Desnick.105 The court concluded that the "so-called fraud was harmless."106

Although the court concluded that the network had not engaged in tortious conduct, it nevertheless discussed the relationship between the First Amendment and investigative reporting. The court noted that the investigative process is entitled to the same constitutional protections that the Supreme Court provides for defamation, "regardless of whether the tort suit is aimed at the content of the broadcast or the production of the broadcast."107 Judge Posner further noted that if the content of the segment is not defamatory and "no established rights are invaded in the process of creating" the story, the targets of such investigative news reports have no legal remedy "even if the investigatory tactics used by the network are surreptitious, confrontational, unscrupulous, and ungentlemanly."108 Thus, because ABC violated no state tort laws, the plaintiffs could not recover for the damages caused by the network's activities.

Judge Tilley distinguished the media's conduct in Desnick from the conduct in Food Lion because in the latter case, the reporters' misrepresentation granted them access to areas where only Food Lion employees were allowed.109 Unlike Desnick, in which the reporters only entered public areas, the reporters' presence could be found to be "purely incidental to their jobs with PrimeTime Live and that they hoped to be admitted to areas of the store not open to the general public to 'steal' that which was otherwise not available to them-the images of those areas."110

This argument is not persuasive and ignores the constitutional implications of the purpose of the reporters' conduct. The reporters, as employees of ABC, could not benefit from "stealing" images from Food Lion, apart from contributing those images to a successful broadcast. To examine the reporters' actions apart from their newsgathering function ignores Desnick's principle that absent a violation of an established right, the First Amendment protects the media from liability.

Because the Food Lion court appears to have misread the Desnick decision, the court would have been on firmer analytical grounds if it had rejected the approach altogether, rather than attempting to limit its holding. It could have subjected the network to liability without ignoring constitutional implications. An approach imposing compensatory damages on the media for tortious conduct, if coupled with other protections, provides the best balance between protecting the rights of the media to gather information, and the rights of their targets not to have their possessory and personal rights violated. As discussed infra, the best means for providing these protections is not by providing a limited constitutional immunity for the press, but by limiting the damages recoverable to compensation for the direct harm caused by the tortious conduct, and barring the recovery of punitive damages.