Does the First Amendment's guarantee of press freedom shield journalists who employ deceit to get a story?
That question still hangs in the air after the Oct. 21 federal appeals court decision throwing out all but $2 of a hefty punitive damages award against ABC News for its 1992 investigation of Food Lion supermarkets.
ABC's "Primetime Live" had two of its reporters apply for jobs with Food Lion. They gave false information on their applications, then used hidden cameras to record wrapping, storage, and food dating practices in the store's meat department. Defending its methods, the network argued that its minor deception of Food Lion - which violated state fraud laws - enabled it to expose the store's major deception of the public by allegedly selling tainted meat.
The appellate panel went most of the way toward ABC's position, agreeing that Food Lion's attack on news- gathering methods, leaving the truth of the report unchallenged, amounted to an "end run" around the First Amendment.
The court's majority added, however, that they were convinced that the news media can do its job without resort to breaking the law.
That concern had proven decisive for the jury that originally awarded Food Lion $5.5 million in damages. A federal district court judge later reduced that to $315,000. The jury was bothered by ABC's methods, and ventured such comments after the trial as, "You can't misrepresent yourself to get the news."
Some critics of the press agreed and wrote columns pointing out that the grandest practitioners of investigative journalism - George Seldes or I.F. Stone, for example - didn't resort to subterfuge, but patient, determined digging into records. Just as many commentators defended ABC, arguing that undercover tactics may sometimes be the only way to get an important story.
Such circumstances must be extremely rare. It's not clear they existed in the Food Lion story. ABC was reported to have had some 70 interviews with employees of the stores, implicating the chain's sanitary practices. Still, the tactic of lying to get reporters inside the stores may have been judged by ABC's producers to be the best way to confirm such allegations. It was almost certainly judged the best way to grab viewers' interest.
Those sometimes conflicting motives make the ABC-Food Lion story one that will be analyzed for a long time to come. It touches on ethical issues in today's journalism. Straightforward reporting, diligent digging through interviews, and the mining of documents are usually the best ways to build a story that will withstand scrutiny and serve the public. The use of deception, while it sometimes may enable reporting that can save lives or expose atrocities, can risk undermining the public's trust in the reporter.
(c) Copyright 1999. The Christian Science Publishing Society