PART I
Misrepresentation and deception
In the past decade, high-profile lawsuits, primarily against television newsmagazines, have resulted in criticism of the news media. Unfortunately for the majority of the media community, the deceptive practices of these organizations also have reinforced the negative stereotype that journalists will lie, cheat and steal to get a story, boost ratings or sell newspapers. That stereotype calls into question not only the credibility of the organization, but also the truthfulness of what is reported. If the public believes that a news story was reported using untruthful or unethical methods, the public is less likely to believe in the veracity of the report’s content. In addition to the ethics involved when journalists lie in the reporting of a story, they may also face legal sanctions when they lie to sources or to the target of an investigation to get information. In a case that garnered national attention, a federal jury in North Carolina ordered Capital Cities/ABC to pay $5.5 million to Food Lion grocery chain in 1997. That eventually was reduced to the nominal amount of $2 in punitive damages and $1,400 in compensatory damages by an appeals court, but the jury’s message came through clearly – it was not happy with ABC. And journalists and media lawyers worry that other plaintiffs will try to use these approaches in the future, tying up news organizations in litigation. JUST BE YOURSELF
In 1992, producers of ABC’s “PrimeTime Live” created fake resumes to plant journalists in Food Lion’s grocery stores to gather evidence to support reports by a food-handlers’ union of “stomach-turning food-handling practices in deli and meat departments of the grocery chain… .” The journalists found what they were looking for, and they aired a piece that exposed the unsanitary practices in several Food Lion stores. But during the 1996 trial, the jury was not allowed to watch the broadcast, because Food Lion’s claims didn’t address the content of information – only how that information was obtained. U.S. District Judge Carlton Tilley Jr. instructed the jurors to assume that the facts alleged in the broadcast were true. Even assuming that Food Lion’s practices were threatening the health of the community and that everything ABC reported was true, the jury decided “PrimeTime Live’s” tactics in reporting the story were illegal. ABC was convicted of fraud, trespass (because the journalists were allowed in non-public areas as employees of the grocery chain) and breach of the duty of loyalty. The third claim was novel in that it argued that the two journalists, Susan Barnett and Lynne Dale, worked at Food Lion stores while working for ABC and therefore violated their responsibility to Food Lion as their employer. After ordering compensatory damages of $1,402 in an earlier phase of the trial, the jury deliberated for six days before they returned a punitive damages verdict of $5.5 million on the fraud verdict. On motions after the trial, the judge decided those punitive damages were too high and ordered Food Lion to accept $315,000 or face a completely new trial. The 4th U.S. Circuit Court of Appeals reversed the costly fraud verdict. The only disputed element of that claim was whether Food Lion was injured by its reliance on Dale and Barnett’s conduct. The appellate court applied North Carolina’s at-will employment law, which states that no assumptions can be made about how long an employee will stay with an employer, and said Food Lion’s claim for retraining costs after Dale and Barnett quit were not recoverable. That left the only substantial part of the verdict on which ABC won a reversal turning not on First Amendment law but on a specific state’s employment law. The result of the case was Food Lion received $1,404, including the $2 in compensatory damages, but ABC and the profession suffered damage to its reputation that far exceeds the payout ordered by the court. Five years after the trial and two years after the appeals court’s ruling, law reviews and media industry publications are still examining the impact of the jury’s verdict and its message on the media and on newsgathering in general. The appeals court determined that applying such tort laws to the press has only an “incidental effect” on newsgathering and therefore doesn’t trigger First Amendment protection: “We are convinced that the media can do its important job effectively without resort to the commission of run-of-the-mill torts.” Because of that finding, many in the legal and media professions fear that other plaintiffs will try a similar approach with no constitutional barriers to victory. The case also has spawned many discussions about the ethics involved in lying to get a story, both within the media and among media critics and the viewing public who believe journalists go too far. Privacy lawyer Neville L. Johnson, who represented a psychic in an invasion of privacy action against ABC’s “PrimeTime Live,” wrote in Los Angeles Lawyer: “Driven by society’s seemingly insatiable voyeuristic desires as well as fiercely competitive battle for higher ratings, the media have dramatically increased their use of hidden cameras and shotgun microphones. But at what price? Is the use of such sophisticated technology … just an extension of the news media’s firmly entrenched First Amendment right to a free press, or have the media gone too far?” Sanford, who serves as legal counsel to the Society of Professional Journalists, said damage verdicts like the Food Lion jury’s $5.5 million award might be a bellwether of change. “That’s the way the law tends to develop – people get to talk back to the media through such verdicts and say we don’t really like this unbridled use of hidden cameras,” he said. “Juries don’t like saturation coverage; they don’t like hidden cameras. They don’t like things that don’t seem fair to them or that smack of being overbearing. “And it’s our job to explain to them why that [technique] is necessary. If you can’t justify it very well, then we don’t have a lot to talk about.” Melanie Henry, special projects director at KJRH-TV in Tulsa, Okla., said the public often doesn’t distinguish between tactics used by national reporters, such as those employed by ABC in the Food Lion story, and local news reporters. Henry’s station is an NBC affiliate. “When mistakes are made on the national level, like with Food Lion, it is going to impact us. Often [the public] can’t clearly differentiate between national or local,” Henry said. FALSE PROMISES
In another recent example of a broadcaster employing less-than-honest tactics in reporting a story and being taken to court to defend those tactics, National Broadcasting Co. (NBC), one of its reporters and a free-lance producer faced a lawsuit filed by a trucking company and a long-haul trucker. The story originated when producer Alan Handel proposed a segment for “Dateline NBC” on the dangers of long-distance drivers after four teen-agers were killed in a collision with a trucker who admitted falsifying his driving hours. A month before approaching driver Peter Kennedy for permission to accompany him on a cross-country trip, “Dateline” crews had interviewed the co-founders of a group called Parents Against Tired Truckers (PATT) that was lobbying for stronger trucking regulations. But Kennedy’s boss, Raymond Vielleux, claimed he specifically asked the producer whether the group would be represented in the report. According to Vielleux, Handel told him PATT had already received enough publicity and that Handel said he “wanted to show the other side of the coin.” Vielleux said he would have never agreed to participate if he had known that PATT would be included in the story. When the report was broadcast in two parts, the second part featured interviews with members of PATT. Handel disputed Vielleux’s characterization of their discussion, but the jury believed Vielleux and returned a verdict against NBC. The appellate court said that, because the claims involved the First Amendment and a mixed question of fact and law, it was required to apply an “independent review,” giving less deference to the jury verdict than is usual. When it applied that standard, it reversed jury verdicts totaling $375,000 against NBC on claims of invasion of privacy, defamation and negligent infliction of emotional distress. All those issues had been related in some way to the content of the broadcast. But the court allowed a verdict based partly on a misrepresentation claim – linked to NBC’s false promises to exclude PATT from the story – and sent the case back to review the $150,000 damages award for that claim. An interesting twist to Vielleux’s claims against NBC indicates that courts may be more likely to protect a reporter’s vague promise about the posture of a story than to protect a specific promise about the use of particular sources. Vielleux claimed NBC had broken two promises in misrepresenting itself, but the court ruled that only one of those justified legal punishment. The promise that PATT would not be included was specific enough to warrant liability, the court said. But the second promise – that the trucking industry would be shown in a “positive light” – was too vague and too subjective to be enforceable. In discussing the specificity required for a journalist’s misrepresentation or broken promise to be actionable, the court quoted from 7th Circuit Judge Richard Posner’s opinion in Desnick vs. Am. Broad. Cos. , Inc.: “Investigative journalists well known for ruthlessness promise to wear kid gloves. They break their promise, as any person of normal sophistication would expect. If that is “fraud,” it is the kind against which potential victims can easily arm themselves by maintaining a minimum of skepticism about journalistic goals and methods.” Ironically, Posner supported First Amendment protection for some undercover reporting techniques, but only because a reasonable person shouldn’t trust a journalist’s word with regard to intentions or motives. Even if the tactics are “surreptitious, confrontational, unscrupulous, and ungentlemanly,” the subject has no legal remedy unless the journalist invades an established right or defames him. He may therefore have perpetuated the negative perception many have of journalism and broadcasters in particular. Just this past summer, ABC News again faced potential litigation and allegations of misrepresentation when parents revoked permission for children’s interviews for a show on environmentalism, called “Tampering with Nature.” The program, which aired June 29, raised questions about whether educators are unduly scaring children about environmental issues. The network had received consent from a number of parents of children at a California school, but the parents said later that the participation of John Stossel, a controversial ABC journalist, in the project was concealed until just before the interview. They said they also learned afterwards that Stossel had been behind a 2000 ABC report about organic food safety that was criticized in the environmental community, and they questioned what seemed to be his anti-environmental bias. Two months after the interview was conducted, the parents, coordinated by a group of environmental activists, wrote to ABC to withdraw their consent, threatening litigation for the misrepresentation if the children or their comments were included. ABC defended the group interview and said “it was conducted in a professional and responsible manner” but agreed to cut the children from the broadcast. Similar to the Vielleux case, the parents had claimed that they were misled about the report’s perspective. They understood it would be a positive overview about environmentalism rather than what seemed to them to be an attack on environmental activism in which the children were “manipulated” into giving answers that supported Stossel’s view. One father said he was “happy they don’t have to be part of this manipulation”- after ABC agreed to pull the segments with the children. PROTECTED SOURCES
Broken promises relating to a “verbal contract” between reporter and source – vaulted into prominence by Cohen – have re-emerged recently in two high-profile situations. The first suit, which is scheduled for a January 2002 trial at the time of this writing, was filed by George Ventura, former Chiquita lawyer, against The Cincinnati Enquirer and its parent company, Gannett Co. Ventura, who was a confidential source for a May 1998 series about Chiquita, says he was fired and suffered “great harm” when his identity was revealed by an Enquirer reporter. The Enquirer fired the reporter, Michael Gallagher, after it was revealed that he had illegally accessed the voice-mail system of Chiquita in researching his story. When Gallagher was prosecuted for breaking into Chiquita’s voice mail, he avoided jail by cooperating with authorities and named Ventura as his source. Ventura then was prosecuted and pleaded no contest to four misdemeanor counts. Two other journalists who were involved with the stories, Cameron McWhirter and David Wells, say they have not identified any confidential sources. In August 2001, a federal magistrate ruled they cannot be compelled to testify in Ventura’s trial against the Enquirer about his involvement as a source. The court ruled that McWhirter and Wells can invoke their protection under the Ohio shield law, and Ventura can’t waive that protection, even if his identity as a source already has been revealed. Jack Greiner, an attorney for Gannett and The Enquirer, told The Associated Press, “We think that the court correctly ruled on the broad issue of who owns the privilege to withhold source identity. I think this ruling strengthens the idea of confidentiality.” In the second high-profile case, Julie Hyatt Steele sued Newsweek reporter Michael Isikoff for identifying her in 1997 and 1998 as a source in stories about Kathleen Willey’s alleged relationship with President Clinton. Steele was a friend of Willey and had spoken to Isikoff only with the understanding that their conversation was “off the record.” The U.S. District Court in the District of Columbia applied Virginia law to claims about his promises because Isikoff’s interviews with Steele occurred in Virginia. Because that state does not recognize a moral obligation as creating a binding contract, the court ruled that no contract existed. Steele’s claim of “promissory estoppel,” in which she said she relied on Isikoff’s promise to her detriment, was also dismissed. Virginia does not recognize that cause of action. The court concluded, “Steele’s suit cannot be completely dismissed on First Amendment grounds, but that each of the individual claims merits dismissal … under the applicable state law.” NEWSROOM STANDARDS
Journalists at both print and broadcast organizations say stories can and should be reported without the use of undercover tactics or dishonesty, which not only annoy the public, but also lessen the credibility of the media in general. “There’s a lot of anger out there about our methods and the way we are considered to be fair,” said Detroit’s Carey, of WXYZ-TV (an ABC affiliate). Carey, who also has worked at news stations in New York and Chicago, believes the Food Lion scare may have a positive effect if it causes reporters to find more up-front ways to report a story. “They were trying to find out what the practices were. Is there any way to get that besides being dishonest? … There are other ways to skin a cat without putting your own credibility at risk,” he said. He added, “As journalists, as soon as you represent [that you are] somebody you’re not, you’re walking a slippery slope.” That slippery slope applies to ethical as well as to legal realms. Even if journalists aren’t sued for misrepresenting themselves, the breach of behavior can have repercussions. Jim Dyer, a reporter for the San Jose Mercury News, quit his job this summer after being criticized for not identifying himself while researching a story. Dyer, who is also a master’s degree candidate at the University of Iowa, identified himself only as a graduate student to gain access to an archive that wasn’t open to journalists. He verified the information he received through other sources, but Mercury News Executive Editor David Yarnold said Dyer’s actions were inappropriate. “There will be some who argue that Dyer did nothing improper or that the outcome justified the means. We disagree,” Yarnold told the San Francisco Chronicle. Part II
