WASHINGTON — Undercover techniques used by journalists are increasingly coming under scrutiny in the nation's courts.
Those targeted by investigative news operations are challenging the methods rather than the accuracy of the reporting - and often winning sympathy from jurors. Lawyers and media experts who specialize in First Amendment issues say such lawsuits are already exerting a "chilling effect" on investigative reporting in the United States.
It is a trend that came into sharp focus this week when a 12-member jury in North Carolina decided that ABC television should pay $5.5 million in damages to the Food Lion grocery chain because ABC's reporters posed as employees and used hidden cameras to uncover alleged sales of spoiled meat at some of its stores.
Food Lion disputed the claims aired in a 1992 "PrimeTime Live" report. But the accuracy of the report was not contested in the suit.
Instead, lawyers for Food Lion argued that two of the network's reporters engaged in fraud, trespassing, and breach of loyalty by completing job applications and working at Food Lion when the entire time they were really employed by ABC.
The lawyers said that as Food Lion employees, the ABC reporters had an obligation to prevent spoiled meat from being sold, rather than permitting the potential sale of spoiled meat while filming it for a news report.
The jury deliberated for more than 30 hours over six days. It rejected Food Lion's request for up to $1.9 billion in punitive damages, but found that ABC used improper and illegal techniques while uncovering the story.
Even within journalistic circles, an ethical debate exists over whether it is justifiable for a news organization to misrepresent itself while newsgathering. Some in the industry say it isn't, but others note American journalism's tradition of using such techniques - dating even before muckrakers such as Upton Sinclair - to expose corruption and wrongdoing.
"Americans are uncomfortable with misrepresentation and uncomfortable with the idea of deceit even if the goal is a positive one," says Sandra Baron of the Libel Defense Resource Center in New York. "At the same time, I think the population generally respects and is interested in the kinds of information generated by investigative reporting including undercover techniques."
Paul McMasters, First Amendment ombudsman at the Freedom Forum in Arlington, Va., says the verdict is an indication of one jury's priorities. "There probably weren't any members of this jury who had gotten sick from buying bad food from a supermarket," he says. "They seemed to be more offended by the subterfuge used by the media than the subterfuge used by the grocery store chain."
These are the kinds of juror concerns that plaintiffs' lawyers hope to exploit when they file suits challenging news organizations. They also count on mistrust of the media in general.
One case that greatly contributed to that mistrust involved NBC "Dateline" producers who rigged a pickup truck with detonators to ensure a fiery result during what was billed as a test crash for a 1992 televised report on truck safety. After disclosure of the rigged test, the network apologized and several officials resigned under pressure.
Several pending cases involve using undercover cameras or instances when news reporters accompanied police and were later charged with trespass and violation of privacy by police suspects.
"Most of the recent cases involve television magazine journalism, and what you are really seeing in those jury verdicts is fairly overt hostility to television news magazine reporting as sensational," says Bob Vanderet, a Los Angeles-based First Amendment lawyer. "I think it is commentary on the public's perception of the press."
Such technique-oriented suits are largely a phenomenon of the 1990s. In the past, corporations or individuals seeking to challenge a press report would often file a defamation suit, claiming the report unfairly damaged a reputation. A string of pro-media rulings by the US Supreme Court since the 1960s has made such suits difficult to win.
Technique suits, on the other hand, are not governed by the same restrictive court precedents. The legal tactic is new enough that judges and juries in similar cases may rule differently.
That means investigative journalists cannot be certain that the techniques they use today will withstand the scrutiny of a jury in the future. "As a lawyer who represents journalists, this puts me in a very uncertain situation. I'm not sure what the parameters are now for deceptive news gathering," says Jane Kirtley of the Reporter's Committee for Freedom of the Press in Arlington, Va. She adds, "In North Carolina it is not against the law to use hidden cameras, but presumably that had a role in the [Food Lion] verdict."
Experts say one thing is certain: The North Carolina verdict will encourage similar suits. "Every major verdict sends out a siren heard particularly by plaintiff's lawyers," says Ms. Baron.