Advisory Opinion

The Food Lion Case: Are Journalists Above the Law?

by Timothy Lynch

Timothy Lynch is assistant director of the Cato Institute’s Center for Constitutional Studies.

Last January, a federal jury in Greensboro, North Carolina slammed ABC News with a $5.5 million judgment in a suit brought by Food Lion Stores, Inc., a supermarket chain. The case began when ABC producers got a tip about unsanitary food handling practices at Food Lion. The producers decided to look into the charge by going "undercover" as Food Lion employees. Once they were on the "inside," the producers used hidden camera video to portray malfeasance by Food Lion employees. After the exposť aired on Prime Time Live, Food Lion sued ABC for trespass and fraud. The jury’s whopping verdict against ABC has touched off a wide-ranging debate on free speech, property rights, and journalistic ethics.

To cut through the cacophony surrounding the Food Lion case, one must sort through the issues carefully. The first issue is whether the judgment against ABC represents a danger to "freedom of the press." Some journalists and lawyers claim the jury verdict against ABC will have a "chilling effect" on news organizations that are anxious to expose corporate misconduct. Before proceeding any further, an important distinction must be drawn between "news reporting" and "news gathering." The trial judge in the Food Lion case threw out billions of dollars in damage claims based upon the actual broadcast of the segment on Prime Time Live. However, the trial judge decided that Food Lion could proceed to trial with damage claims based upon trespass and fraud. And since those were the claims upon which the jury ultimately assessed damages against ABC, the Food Lion verdict concerns news gathering techniques, not free speech.

The second issue is whether ABC was properly held liable for trespass and fraud. Since Food Lion was not likely to give reporters and camera crews unfettered access to company property, ABC’s employees submitted phony resumes. ABC did not want Food Lion to know that routine store practices were being scrutinized– that would have prompted managers to cover up any improprieties, at least temporarily.

ABC’s deception worked like a charm. Food Lion hired the faux food preparers. ABC’s undercover agents proceeded to use hidden camera techniques to gather incriminating evidence against Food Lion and its legitimate employees.

A trespass action is a fairly simple matter. Any unauthorized entry onto another’s property constitutes trespass. Perhaps the most basic right enjoyed by owners of real property is the right of exclusive use of the realty. According to one legal treatise, the right to physically exclude others is "the most nearly absolute of the many property rights that flow from the ownership" of land. Trespass laws protect every property owner’s freedom of association by denying access to unwelcome visitors. Indeed, since ABC expects trespassers on its property to be held accountable, ABC’s lawyers could not launch a frontal assault on Food Lion’s property rights without appearing duplicitous.

ABC attempted to counter the trespass accusation by arguing that Food Lion authorized entry. Food Lion attorneys countered that ABC’s agents deliberately misrepresented themselves in order to gain access. Food Lion maintained that it never authorized reporters and camera crews to come on to its premises. The jury agreed.

Many commentators have lauded the motives of ABC’s investigative reporters. They argue that reporters are driven not by money, but by the public welfare. Other commentators point out that network "news pro-grams" are in fierce competition. The struggle for good TV ratings has lowered journalistic standards (gross exaggeration, half-truths, misleading film footage, etc.) Both observations have merit, but we must ultimately address one of the unspoken contentions underlying the Food Lion controversy: Should the journalistic profession enjoy a privileged status in civil society?

The Food Lion jury properly rejected the idea of a media license to snoop; even if the snooping uncovers wrongdoing. The motivations of the trespasser and the circumstances surrounding the trespass are appropriate factors to consider when assessing damages in specific cases, not in assessing whether a trespass took place. The media should expose corporate misconduct. But journalists must respect the rights of others and operate within the bounds of the law. That’s the moral of Food Lion v. ABC News.

 


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