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

The benefit of a rule that does not limit the media's exposure to liability for tortious conduct is that it provides a bright-line rule to remedy aggrieved parties. There is popular appeal in holding the media to the same standard as the general public. Essentially, this is the standard that the Food Lion court used.127 Proponents of this view feel that there is no need for the media to break laws in order to investigate a story.128 However, if plaintiffs use these causes of action to recover from the media without being required to meet the strict requirements of defamation claims, the potential exists for an erosion of the existing protections for the media. The cases that follow this approach fail to recognize the impact that "neutral laws" have on the transmission of important information, and the chilling effect they might have on speech if applied blindly to the press.

If the Dietemann approach is followed, allowing Food Lion to recover reputation damages out of the PrimeTime Live broadcast risks an even greater suppression of speech. In New York Times, Co. v. Sullivan, the Supreme Court held that a rule imposing unlimited liability on the press for defamation of public officials would not merely inhibit false speech, but chill all speech.129 Similarly, a rule imposing unlimited liability for newsgathering would not only inhibit tortious conduct, but would inhibit legitimate investigation of information clearly in the public's interest to be disclosed.

The Desnick approach, which gives the media immunity unless an "established right" is violated, has the same advantage of providing a bright-line standard. This approach recognizes that the media does not have the same motivation as the general public in committing tortious conduct when the media commits tortious acts incidental to newsgathering. Therefore, imposing liability only when an established right is violated ensures that journalists do not desist from pursuing truthful investigative reporting.130This approach would require the adoption of a set of ethical standards for the media that could be enforced if the conduct violated "established rights."131 However, unless these rights are clearly and uniformly defined under state law, there is a risk of having rights defined by the arbitrary predilections of individual courts, thus losing the advantage of certainty of application.

Another standard would allow courts to use its decisionmaking capacity to determine liability while considering public policy factors. Under this approach, "[c]ourts ... balance the state interest that is served by the legal rule sought to be applied against the representative of the press arising out of the newsgathering activity against the First Amendment interest that is served by the acquisition of the information through that activity."132 The primary public policy cited for using this balancing test is that often there are areas of public concern which the government is unable or unwilling to investigate, or is itself suspected of wrongdoing.133 Under this method, the courts factor in the newsworthiness of the investigated matter to determine whether there is an overriding justification for the techniques used by the media to gather the information.134 This approach does not have the advantage of providing a bright-line standard for the courts to judge the media's conduct. As one critic argues, "[b]y measuring the newsworthiness of the subject matter against the plaintiff's right to privacy, courts will surely be creating dangerously subjective and ad hoc exceptions."135 The fundamental problem is the difficulty of determining what constitutes a public issue important enough to justify granting the media immunity for tortious conduct.136 A risk associated with the balancing test approach is that courts may second-guess the media as to whether the investigation under scrutiny is an important issue. It does, however, adequately protect private individuals who might suffer injury as a result of the pursuit of a clearly unnewsworthy story.