Open in TheBrain

Food Lion case


http://www.washingtontimes.com/topics/joseph-c-goulden/ mostly book rev (spy?)

wiki punked

no byline: https://web.archive.org/web/20081017042217/http://www.aim.org/publications/special_reports/foodlion.html

Goulden, Joseph C. (1997). "ABC's Food Lion Lies: A Study in TV Deception". aim.org. Accuracy in Media. Archived from the original on October 17, 2008. Retrieved 11 July 2016.

 Goulden, Joseph C. (1997). "ABC's Food Lion Lies: A Study in TV Deception". aim.org. Accuracy in Media. Archived from the originalon October 17, 2008. Retrieved 11 July 2016.


later:

Food Lion verdict reversal has lessons for both sides

Commentary

By Kenneth A. Paulson

Senior vice president, the Freedom Forum

Executive director, First Amendment Center

11.15.99

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When ajury awarded $5.5 million to Food Lion in a lawsuit filed against ABC News, it changed the rules of American newsgathering.

That 1997 federal court jury award was subsequentlyreduced by a judge to $315,000, but the message was clear: A jury was ready to severely punish illegal or unethical newsgathering even if the reporting was in the public interest.

Now a new decision from the Fourth U.S. Circuit Court of Appeals has reduced the award once again, giving Food Lion just $2 in damages, but reasserting that the nation's news media are not above the law.

The case stems from a 1992 "Prime Time Live" report that some Food Lion stores engaged in highly questionable food handling practices, including therepackaging and sale of spoiled meat. Documentation for the report was obtained by two ABC reporters who applied for jobs with Food Lion and taped the company's employees with hidden video cameras.

Food Lion chose not to challenge the truthfulness of the reporting. In order to prevail, it would have had to prove the reporting was false or that ABC acted in reckless disregard of the facts, a difficult burden.

Instead, Food Lion attacked the gathering of the news, charging that by lying on their applications and proving fake references, the ABC reporters engaged in fraud and trespass. The original jury verdict shocked many in the news media because it punished the process of reporting rather than the report itself. Food Lion had found a way to bypass the press' constitutional protection, winning a verdict without challenging the facts of the case.

That suggested to many editors and news executives that undercover reporting could no longer be a part of their newsgathering arsenal. Although not a common practice, there's a long history of courageous and public-spirited reporting in which reporters misrepresented their identities. Bending the rules was justified by the overall benefit to the public.

As a brief filed by news organizations in the appeal of the case noted, "The jury's verdict in this case casts a long bone-chilling shadow over the future of undercover reporting, which has played an integral role in the history of American journalism."

That "bone-chilling shadow" has been tempered considerably by the new decision by The Fourth U.S. Circuit Court of Appeals.

The appellate court certainly didn't exonerate ABC News. The court's decision points out that thepress has to obey the same laws as the rest of society, absent some showing of a substantial impact on the First Amendment right to gather news.

The court found that the reporters were indeed guilty of trespass and of violating a breach of loyalty as Food Lion employees."We are convinced that the media can do (their) important job effectively without resort to the commission of run-of-the-mill torts," the court wrote.

But there's a world of difference in damages recoverable for "run-of-the-mill torts" and damage to reputation. Food Lion had sought to recover millions of dollars for damages to its business without proving the falsity of the news report that harmed its image.

The court refused to accept that approach, noting that "such an end-run around First Amendment strictures is foreclosed."

The decision — which may be appealed by Food Lion — holds lessons for both the press and potential plaintiffs.

For the news media, there's a reminder that the First Amendment doesn't give reporters a license to break the law. Juries — drawn from a general public that doesn't hold the news media in high regard anyway — can and will punish illegal conduct.

For companies like Food Lion, there's a different lesson. If you're the subject of an unflattering investigative piece, you may well want to protect your reputation in court, demonstrating that the reporting was false.

But if there's some merit to the reporting, you may find a public apology and renewed commitment to quality control a better strategy than an "end run" around the First Amendment. For its substantial investment in litigation, Food Lion walked away with $2 and years of news coverage linking the supermarket chain to tainted meat. Payback may not be worth the price.

http://www.freedomforum.org/templates/document.asp?documentID=6635


wowmedia res ctr:  shepard bros, bozell

February 1997

http://archive.mrc.org/medianomics/1997/mn19970201c.asp

:{Issue Review: Food Lion vs. Prime Time Live 

Muckraking -- or Muckfaking?}:

A North Carolina jury set off a media firestorm last month when it fined ABC News $5.5 million in punitive damages for its news gathering techniques in a 1992 under- cover Prime Time Live story about Food Lion. The case brought out into the open a long-simmering debate about the propriety of using hidden cameras and deception to get stories.

But this was only one aspect of the Food Lion/ABC News case. There were also serious questions about whether or not ABC News producers, working undercover at Food Lion grocery stores, had misused hidden cameras to create a sensational story rather than simply reporting the facts. In their frenzy to defend the use of hidden cameras, reporters didn't seem to care about these alleged inaccuracies. Reporters simply ignored them.

After the jury verdict, most in the media were quick to defend ABC. But they only wanted to talk about the issue of hidden cameras, not the accuracy of the report. CBS's Dan Rathersaid it was "important to note that the truth of the report was never at issue in the lawsuit, not even challenged, only the journalistic techniques."Newsweek's Jonathan Alter insisted that "this is an alarming case because what it suggests is that you can do a report that issubstantially accurate and still be penalized for it." The lesson NBC Nightly News Anchor Tom Brokaw drew from the whole affair was that reporters "have to work a little harder at getting the public to understand just what we do and why we do it."

Alter's Newsweek colleague, Evan Thomas, asserted: "It was pretty scary for the press because the story was basically right." National Public Radio's Nina Totenberg said hidden cameras were "a time-honored way of getting a story you can't get otherwise." And Time Managing Editor Walter Isaacson claimed that it was "a very valuable, important story that ABC did and the truth of the story was never contended in court."

These reporters were merely repeating what ABC News President Roone Arledge had established as the journalistic party line: "From the beginning, Food Lion has never been able to attack the story itself. They have gone about attacking us because of the way we gathered it."

But was the story really entirely accurate? Despite the claims of the press, Food Lion did -- vehemently -- challenge the accuracy of the story, just not in court because, they said, proving libel is almost impossible.After viewing ABC's 45 hours of outtakes for the story, the grocery chain put together a video which showed some practices they don't teach in journalism school. It shows an ABC producer working in the meat department and speculating that the "sell-by" date on some chicken had expired, then putting the chicken on sale anyway and telling a cameraman to film it. The outtakes also showed a producer, after filming a dirty meat slicer, muttering obscenities when a Food Lion employee cleaned up the slicer.[note no evidence]

ABC's editing techniques were also called into question. While ABC aired video of a Food Lion employee complaining she had cooked chicken she thought might be spoiled, for instance, Food Lion's tape showed that in therest of the conversation the employee said a manager had told her to throw the chicken out.This last part didn't make it into the Prime Time Live segment. ABC also aired footage of an employee working quickly and saying that he runs out of time each day. But the outtakes show that when the producer then asks whether "they" give him enough time to do his work, he replies, "Oh, yeah. We get enough time." Again, only the first part, without the employee's clarification, made it into the segment. And the outtakes show that ABC edited some footage to make an employee's horse play look like an example of unsafe working conditions.

These are serious charges. When ABC decided to devote both its February 12 Prime Time Live show and a special 90-minuteViewpoint show to the Food Lion case, many observers expected the network to answer these objections, point by point. They were disappointed. The entire Prime Time Live show -- with the exception of a brief response from Food Lion -- was about whether journalists should be able to use deception to get a story and whether hidden cameras themselves are ethical. ABC's Ted Koppel, host of the Viewpoint special, did his best to keep that show focused on the same issues. In two and a half hours of airtime devoted to the case, ABC never answered or even discussed Food Lion's criticisms specifically.

ABC didn't want anybody else talking about its accuracy, either. When theFox News Channel aired Food Lion's video of ABC's original footage, the network was furious. ABC Television President David Westin said, "I find it outrageously unfair that a news organization would proceed that way. The tape that Food Lion presented is a gross distortion of what actually occurred." Asked about the incident on CNN, Sam Donaldson told Larry King: "I think [Fox] was irresponsible." But at no point did ABC actually bother to discuss any of these alleged "gross distortions" in the Food Lion tape.

Others of have been more discerning. "These hidden camera investigations are costly, and it's hard for producers to go back to the office and say the sorts of things newspaper reporters tell their editors all the time: `the story didn't really pan out,'" argued William Powers, Senior Editor of the New Republic. "Unlike newspapers, the networks don't have subscribers who will be back for the next edition no matter what, and they can't bury a less than fab story on page B-19. They have to draw in a large audience for every show, or risk losing ratings and advertisers. And they do so by painting broad, sensational strokes," Powers asserted.

There's also another issue that neither ABC, nor its journalistic defenders addressed. If ABC thought they were truly exposing a health hazard, why did it wait six months, until a "sweeps" period, to air the Food Lion segment? Was ABC putting profits ahead of public safety, as it accused Food Lion of doing? This issue wasn't mentioned until near the end of the Viewpoint segment -- by Food Lion's Chris Ahearn -- and no one at ABC answered the criticism. None of ABC's defenders within journalism addressed the topic, either.

The ABC vs. Food Lion case has implications for the First Amendment, and it's legitimate for reporters to discuss and defend the use of hidden cameras. But this wasn't the only issue. The case also raises fundamental questions about the accuracy of television magazine reporting, questions which ABC News and much of the rest of the media have chosen to supress.

— Rich Noyes

===


The landmark Food Lion case | Reporters Committee for Freedom of ...

https://www.rcfp.org/browse-media-law-resources/.../landmark-food-lion-case

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1.

:{The landmark :{Food Lion case:(style="font-weight:bold"):}:. Cover Story. Page Number: 8. Kristen Rasmussen. Journalists who lie on employment applications to gain access to private ...:(style="word-wrap:break-word"):}:

Food Lion fraud award against ABC thrown out | Reporters Committee ...

https://www.rcfp.org/browse-media-law...law/.../food-lion-fraud-award-against

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2.

:{... ABC in the fraud :{case:(style="font-weight:bold"):}: brought by the :{Food Lion:(style="font-weight:bold"):}: grocery chain was thrown out by ... :{Food Lion:(style="font-weight:bold"):}: sued ABC in July 1995 in federal District Court in Greensboro, .... The court held that such recovery of damages against the :{press:(style="font-weight:bold"):}: is precluded by ...:(style="word-wrap:break-word"):}:

Food Lion | Wikipedia

https://en.wikipedia.org/wiki/Food_Lion

:{:(style="border-color:#006621;;border-style:solid;border-width:5px 4px 0px;width:0px;height:0px;margin-left:3px;top:7.5px;margin-top:-4px;position:absolute;left:0px"):}:

2.

:{:{Food Lion:(style="font-weight:bold"):}: LLC is a grocery store company headquartered in Salisbury, North Carolina, that .... Lion and ABC, over 40 hours of unused footage were released that helped :{Food Lion's case:(style="font-weight:bold"):}:. ... Asheboro, North Carolina: Down Home :{Press:(style="font-weight:bold"):}:. pp.:(style="word-wrap:break-word"):}:

History · ‎Former Banners · ‎Store brand · ‎Slogans

YIKES, DIANE SAWYER'S DOWNSTAIRS! WHEN ABC'S PRIMETIME ...

archive.fortune.com/magazines/fortune/fortune_archive/1996/12/23/.../index.htm

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2.

:{Dec 23, 1996 - But this is more than a story about contaminated food, the :{press:(style="font-weight:bold"):}:, and a ... In the :{Food Lion case:(style="font-weight:bold"):}:, ABC could have first checked state or federal ...:(style="word-wrap:break-word"):}:

The Food Lion Case: Are Journalists Above the Law? | Cato Institute

https://www.cato.org/publications/.../food-lion-case-are-journalists-above-law

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1.

:{To cut through the cacophony surrounding the :{Food Lion case:(style="font-weight:bold"):}:, one must sort through ... the judgment against ABC represents a danger to “freedom of the :{press:(style="font-weight:bold"):}:.:(style="word-wrap:break-word"):}:

Revisiting the Food Lion Case | The New York Times

www.nytimes.com/1997/02/17/opinion/revisiting-the-food-lion-case.html

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1.

:{Feb 17, 1997 - ''Primetime Live'' and a special 90-minute panel debate moderated by Ted Koppel focused on :{Food Lion:(style="font-weight:bold"):}: v. ABC, the :{case:(style="font-weight:bold"):}: in which a North ...:(style="word-wrap:break-word"):}:

Food Lyin'? | PBS NewsHour

www.pbs.org/newshour/bb/business-jan-june97-lion_1-15/

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2.

:{Jan 15, 1997 - In the context of the :{Food Lion case:(style="font-weight:bold"):}: involving undercover reporting of ... for Freedom of the :{Press:(style="font-weight:bold"):}:, a non-profit association that provides legal ...:(style="word-wrap:break-word"):}:

===https://en.wikipedia.org/wiki/Food_Lion

Primetime Live controversy

In the 1990s, Food Lion gained a degree of notoriety when it was the subject of an ABC News investigation. ABC had received a tip about unsanitary practices at Food Lion. Two ABC reporters had posed as Food Lion employees, and witnessed the unsanitary practices at Food Lion. Much of what they had seen was videotaped with cameras hidden in wigs that they were wearing. The footage was then featured in a segment on the news magazine Primetime Live, in which Food Lion employees described unsanitary practices, which included bleaching discolored, expired pork with Clorox and repackaging expired meats with new expiration dates, and the use of nail polish remover to remove the expiration dates from dairy item packages.

The company responded by suing ABC for fraud, claiming that the ABC employees misrepresented themselves; for trespassing, because the ABC employees came on to Food Lion property without permission; and for breach of duty of loyalty, the ABC employees videotaped nonpublic areas of the store and revealed internal company information. During the court battles between Food Lion and ABC, over 40 hours of unused footage were released that helped Food Lion's case. In the unused footage, two undercover producers are seen trying to encourage violations of company policy; however, employees resisted and correctly followed sanitary practices.[34]

Food Lion was awarded US$5.5 million by a jury in 1997. The award was later reduced by a judge to $316,000. The verdict was then largely overturned by the U.S. Court of Appeals Fourth Circuit in Richmond, Virginia. According to the court: even though ABC was wrong to do what they had done, Food Lion was not suing for defamation, but rather for tort as a way to get around the strict First Amendment standards for defamation. Food Lion did this because at the time of the lawsuit they were unable to prove that ABC acted with malice--- which would be required to prove defamation.[35] However, the appellate court upheld the finding that the producers involved breached their duty of loyalty as employees to Food Lion, and had trespassed, including a nominal $2 fine.[36]

===

Fall 1999

Fall 1999 issue of *The News Media & The Law*, page 3.

The nearly $317,000 judgment that remained against ABC in the fraud case brought by the Food Lion grocery chain was thrown out by a federal appellate court in mid-October, leaving only a $2 award for trespass and employee disloyalty intact.

Hidden cameras were used by ABC producers investigating allegations of improper food handling at Food Lion stores. The chain sued ABC and the reporters, who lied on job applications to get jobs in a store’s meat department, for fraud, trespass, and breach of employee loyalty in July 1995.

*

ABC broadcast a report on “PrimeTime Live” in November 1992 alleging that Food Lion’s meat department required employees to engage in unsafe, unhealthy or illegal practices, such as 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. In order to gather information for the report, two ABC producers, Lynne Dale and Susan Barnett, obtained jobs at Food Lion stores in North Carolina and South Carolina by falsifying grocery store experience on their resumes and omitting their current employment with ABC.

Each worked only one or two weeks at the stores, and while there, they used hidden cameras to secretly record Food Lion employees treating, wrapping and labeling meat; cleaning machinery; and discussing meat department practices.

Food Lion sued ABC in July 1995 in federal District Court in Greensboro, N.C., for fraud, breach of the duty of loyalty, trespass, and unfair trade practices under North Carolina statutory provisions. It argued that ABC used illegal newsgathering methods in obtaining the information for the report, but did not allege libel.

Food Lion alleged that the ABC producers fraudulently gained employment by lying on their job applications and giving false references, and then used hidden cameras to “stage” events in order to create footage that fit ABC’s version of Food Lion’s sanitary practices. Food Lion claimed that it lost $2.5 billion after the broadcast when its sales and stock price plummeted.

In late December 1996, a jury found ABC liable for fraud, trespass, and disloyalty. In late January 1997, 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. However, the federal 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 (4th Cir.), which heard arguments in early June 1998.

ABC argued that the lower court should have rejected the jury’s fraud verdict because Food Lion failed to show it suffered any injury as a result of the misrepresentations made by Dale and Barnett on their job applications.

Furthermore, ABC argued that it should not have been held liable for disloyalty to Food Lion under North Carolina or South Carolina law because the producers did not compete with Food Lion, misappropriate any of its profits, or breach its confidences. Additionally, it asserted that the producers had not trespassed on Food Lion’s property because, by hiring them to work in the grocery stores, Food Lion had consented to their presence in those stores. Moreover, ABC argued that the lower court should have subjected Food Lion’s claims to First Amendment scrutiny.

Food Lion argued that as a result of the misrepresentations Dale and Barnett made on their job applications, it suffered losses due to hiring and training costs, and paid wages to the two producers. Furthermore, Food Lion argued that the lower court should have allowed recovery of compensatory damages for reputational harm, not just training costs and wages, that resulted from the broadcast.

In mid-October, the appellate court 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 appellate court also held that Food Lion was not entitled to recover damages for reputational harm without meeting the First Amendment based “actual malice” — knowledge of falsity or reckless disregard for the truth — standard for recovery of such damages.

The appellate court rejected the fraud damages because it found that Food Lion had failed to prove it suffered any injury as a result of relying on the misrepresentations made by Dale and Barnett on their job applications.

Since the two producers did not make any representations about how long they would work, they were “at-will” employees who could quit at any time, the court noted. With at-will employment, Food Lion has no right to presume that any worker will remain employed long enough for the grocery chain to recoup its training costs. As a result, the court ruled, Food Lion could not establish that the false resumes, rather than the general risks of at-will employment, caused it to lose the value of training the producers.

Furthermore, the appellate court held that Food Lion failed to show that it paid wages to Dale and Barnett because of their misrepresentations. The reason for issuance of the paychecks was not the misrepresentations, but rather the performance of the two producers in their capacity as Food Lion employees, the court held.

Because Food Lion could prove no injury as a result of the misrepresentations, it could not recover any compensatory damages for fraud, the court concluded. Without a tenable basis for compensatory damages for fraud, Food Lion could not recover punitive damages for that alleged fraud, the court held.

The court also found that because Dale and Barnett were employed by Food Lion, they owed Food Lion a duty of loyalty. The court held that since the two producers intended to “act against the interests of their second employer, Food Lion, for the benefit of their main employer, ABC,” they breached that duty of loyalty to Food Lion.

In addition, the appellate court concluded that the ABC producers trespassed. The court explained that Dale and Barnett had permission to be in the stores where they worked because Food Lion had hired them, but that they did not have permission to secretly videotape footage in non-public areas of the stores 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 court found that the laws regarding employee loyalty and trespass were laws of general application, from which the press could not be exempt, and that the application of those laws to the media would merely have “an ‘incidental effect’ on newsgathering.”

Thus, the court reversed the $1,400 in compensatory damages and $315,000 punitive award based on Food Lion’s fraud claim, but upheld damages of $2 for breach of loyalty and trespass.

In addition, the appellate court affirmed the lower court’s denial of damages Food Lion sought for injury to its reputation, such as loss of good will and lost sales, based on the content of ABC’s broadcast. The court refused to analyze whether the broadcast caused Food Lion to lose sales and stock value because “an overriding (and settled) First Amendment principle precludes the award.”

The court said that Food Lion had “attempted to avoid the First Amendment limitations on defamation claims” by seeking damages to its reputation based on the broadcast, but not alleging libel and not offering any proof of falsity or reckless disregard for the truth — which is what public figures must prove to recover for reputational harm in libel cases. The court held that such recovery of damages against the press is precluded by the U.S. Supreme Court’s decision in *Hustler Magazine v. Falwell*.

Under *Hustler*, a public figure must prove actual malice — knowledge of falsity or reckless disregard for the truth — when seeking damages in non-libel claims against parties protected by the First Amendment. The appellate court concluded that Food Lion could not meet the actual malice standard for libel, and therefore, could not receive damages for harm to its reputation as a result of the broadcast.

Judge Paul Niemeyer dissented from the part of the panel’s holding that found Food Lion suffered no injury as a result of the falsified resumes. Niemeyer asserted that because Food Lion would not have hired the producers had they not lied about their experience and failed to disclose that they already were employed by ABC, the misrepresentations caused Food Lion to incur training expenses for which it should be compensated. *(Food Lion, Inc. v. Capital Cities/ABC, Inc.)*

The News Media and The Law, Fall 1999