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Journalists who lie on employment applications to gain access to private facilities for newsgathering activities are not protected by the First Amendment and may be liable for trespass or other offenses, a federal appellate court ruled more than a dozen years ago in a ruling that remains the leading case on the issue.
In November 1992, two ABC News producers obtained jobs at Food Lion grocery stores in North and South Carolina by submitting applications with false references, misrepresenting their educational and employment experiences on their résumés and omitting their current employment with the network. ABC broadcasted a report on “PrimeTime Live” alleging that Food Lion’s meat department at those stores required employees to engage in unsafe, unhealthy or illegal practices, including selling old meat that was washed with bleach to kill odor, selling cheese that had been gnawed by rats and working off the time clock.
Each worked undercover only one or two weeks at the store, and while there used hidden cameras to secretly record grocery store employees treating, wrapping and labeling meat, cleaning machinery and discussing meat-department practices.
Food Lion sued ABC in July 1995 in federal court in Greensboro, N.C., alleging fraud, breach of the duty of loyalty, trespass and unfair trade practices under North Carolina law. The chain argued that ABC used illegal newsgathering methods to obtain the information for the report.
In December 1996, a jury found ABC liable for fraud, trespass and disloyalty. The next month, the same jury awarded Food Lion $1,400 in compensatory damages and $5.5 million in punitive damages for fraud, along with $2 in nominal damages for breach of loyalty and trespass. But the U.S. District Court found the punitive award excessive and reduced it to $315,000.
Both ABC and Food Lion appealed the judgment to the U.S. Court of Appeals in Richmond, Va. (4th Cir.), which rejected the fraud claim, and the nearly $317,000 in damages that accompanied it, but upheld the $2 award for breach of loyalty and trespass.
The Fourth Circuit in Food Lion, Inc. v. Capital Cities/ABC, Inc. rejected the fraud damages because it found that the grocery chain failed to prove it suffered any injury as a result of its reliance on the misrepresentations the producers made on their job applications.
Perhaps more significantly, though, the appeals court concluded that the ABC producers trespassed. The court explained that the journalists had permission to be in the stores where they worked because Food Lion had hired them, but they did not have permission to secretly videotape footage in non-public areas of the store for use on ABC because Food Lion had not consented to their presence for that purpose.
The court held that the lower court correctly declined to apply a First Amendment analysis to Food Lion’s breach of loyalty and trespass claims. The laws regarding employee loyalty and trespass were laws of general application, from which the press could not be exempt, and the application of those laws to the media would have merely “an ‘incidental effect’ on newsgathering,” the court found.