Message to Journalists More about Trust Than Law

Article excerpt

The explicit conclusions reached by the judge and jury in the ABC/Food Lion case are narrow in scope. Basically, the case established, at least for now in central North Carolina, that journalists shouldn't lie about their past experiences to get jobs at a company they're investigating.

But lawyers familiar with the case say there's a subtext to Food Lion. If you read it, they say, you'll find warnings to the entire journalism trade.

The message, these lawyers say, basically comes down to this: The public does not like us, does not trust us and does not understand us. If we don't start explaining our work better to the public-and, where appropriate, cleaning up our ethical decision-making-we can expect more large punitive damage verdicts in the future.

"Jurors make decisions based on whatever values they bring into the courtroom;' said Robert D. Richards, director of the Pennsylvania Center for the First Amendment at Penn State University. "I think the biggest lesson that the news media can take from the Food Lion case is that the American public is fed up, and they (journalists) need to be careful with how they report stories. This is just one example of a long string where the media is getting slammed in court cases. It's unfortunate, but it's a reality we all have to face:'

Richards said he thinks the jury was willing to award a large punitive damage award because ABC came off as arrogant. This appearance of arrogance made ABC's otherwise small sins-like using fake references on a Food Lion employment application-seem much worse, Richards said.

Food Lion's lead attorney agrees. Until the Food Lion case, Andy Copenhaver spent much of his career representing newspapers. He has defended successfully reporters from libel suits and advised editors on what they can and can't do to get a story. He still represents the Winston-Salem Journal, North Carolina's fourth-largest newspaper. But to his mind, there is little common ground between the kind of journalism practiced by his newspaper clients and the kind undertaken by ABC against Food Lion.

ABC argued during the trial that its undercover producers were just "flies on the wall," but Copenhaver argued that they were actively out to get Food Lion. To illustrate this point, he showed the jurors hidden-camera out-takes in which the producers muttered swear words under their breath after, for example, a deli manager said some spoiled chicken should be thrown away and not resold. In that case, the producer, Susan Barnett, told the jury she swore because her back hurt under the weight of her concealed tape deck, battery pack and other hidden camera equipment, but Copenhaver doesn't think the jury believed that explanation.

"I argued that ABC was arrogant and I believe that," said Copenhaver, a partner with one of the South's largest law firms, Winston-Salem-based Womble Carlyle Sandridge & Rice. "Had they been in there working hard and just letting the tapes run ...and not saying 'damn' under their breath, ... it would have made a tremendous difference.

"The (job-application) lies got us to the jury," Copenhaver said, but added: "I don't think the jury would have given that large a punitive damages award if they (ABC's producers) had just been flies on the wall."

Bruce Sanford, the Washington-based media lawyer, said the Food Lion case shows that journalists need to be sure that they conduct themselves with the utmost professionalism.

"We have to remember that how we do our jobs, not just what we publish or broadcast, is legally vulnerable to attack," Sanford said. "Since what's under attack is the way we do our jobs, the way we do our jobs should be looked at. We should ask ourselves, `Would this look good in 20/20 hindsight?"'

Things like the way journalists talk about a project, even the way they dress, can come back to haunt them in a courtroom someday, said Sanford, whose law firm, Baker & Hostetler, represents the Society of Professional Journalists. …