Putting Food Lion in perspective

An ABC report involving deception of consumers that led to a huge jury verdict against the network was recently overturned on appeal.

And in an unrelated case, ABC also (mostly) prevailed in its appeal of the Food Lion case.

Why is it that ABC’s successful attempt to overturn a $10 million verdict in Levan v. ABC was hardly noticed, while the Food Lion win — overturning all but $2 of a $316,402 verdict — made the front page of The New York Times?

The explanation has to do with the relative novelty of the cases. Food Lion was an attempt to make the media liable for what are being called “newsgathering torts” — claims for trespass, breach of duty of loyalty, and fraud, arising from techniques used while preparing a story. This would allow large jury awards even when the complaining party doesn’t even attempt to prove that the story was false, much less that the media party knew it was false or acted with reckless disregard for the truth. The Food Lion jury initially slapped ABC with a $5.5 million damages award. And although that was reduced by the judge soon after trial, it was only because the amount of punitive damages were disproportionate to the actual damages — the $1,400 that Food Lion said it cost to train new employees.

The Levan case, on the other hand, was what we’ve come to expect in traditional libel cases. A jury didn’t like how a story on questionable real estate transactions was prepared and felt that it harmed someone’s reputation, and therefore decided that it was false and that the network knew it was false. On appeal, judges determined that the evidence offered by the financier and the bank he ran was not sufficient to support such a conclusion, and threw out the award.

Journalists need to remember that libel claims, even if overturned on appeal, represent a much greater burden on the First Amendment rights of journalists than any emerging newsgathering torts do. It was clear to the appellate court in Levan that ABC had no reason to know that anything it said was false, based on the overwhelming research and interviewing the 20/20 producers did in preparing their story. So why wasn’t the jury verdict set aside by the trial judge? Even better, why wasn’t this case dismissed before trial? In the end, the legal principles put in place to allow the media to do their jobs prevailed, but only after ABC spent untold resources, countless hours and undoubtedly high legal fees to defend itself.

Equally important, it is necessary to know that even in suits over newsgathering torts, courts are unlikely to uphold large damage awards. The trial court hearing the Food Lion case found that the grocery chain could not show that the fraud and other claims were the proximate cause of the damage suffered by Food Lion after the story aired — the cause was the public’s perception of how food is handled at the stores. But the appellate court didn’t even review whether there was such a causal link, finding that U.S. Supreme Court precedent stops the claim even sooner. Looking back to the high court’s decision in Hustler Magazine v. Falwell, the appellate court noted that a public figure or someone engaged in a public controversy cannot sue for non-reputational tort damage — damage arising from things like fraud and trespass — and expect to recover for harms from subsequent publication of a story.

In the wrong hands, undercover reporting, like any other journalistic technique, can be abused. But if the only “deception” involved concerns getting the reporter into the workplace, and then honestly documenting a compelling story, can we really say that the deception negates the public service performed? Certainly not.

There seems to be a common thread in the lawsuits we see filed against journalists for their reporting techniques; the litigants find fault in the process because they can’t argue with the results.

A California “telepsychic” surreptitiously videotaped by an ABC reporter in 1993 sued after he was shown admitting that he used to be a stand-up comic. (California’s Supreme Court ruled in June that this telepsychic comic’s privacy may have been invaded, and sent the case back to trial. Never mind that his “gifts” should have tipped him off about the taping going on.)

A North Carolina psychiatric hospital in 1999 tried to stop CBS from airing videotape showing mistreatment of patients.

And Food Lion itself did not itself allege in court that ABC knew the report was false or recklessly disregarded the truth.

What interests are being preserved by allowing these suits? The interest in freely running a telepsychic service, hospital or, yes, meat department, are legitimate. But when serious allegations arise about defrauding and endangering the public, the important public interests served by truthful, accurate undercover reporting should always prevail.