Outtakes, Hidden Cameras, and the First Amendment: A Reporter's Privilege

Article excerpt

On November 5, 1992, the ABC investigative journalism show PrimeTime Live broadcast a segment about Food Lion, then the fastest-growing supermarket chain in the nation.(1) PrimeTime Live, relying on undercover film footage, reported that Food Lion employees regularly used unsanitary food handling practices.(2) Food Lion's stock fell sharply the next day,(3) and its net profits dropped from $178 million in 1992 to $3.8 million in 1993.(4)

The television segment broadcast approximately five minutes out of fifty-five hours of footage(5) from a camera smuggled into the store by an ABC producer working undercover as a meat wrapper.(6) Even before the show aired, Food Lion executives filed suit in federal court in an attempt to block the telecast.(7) They charged that the ABC producer had obtained her job under false pretenses, and that ABC's First Amendment rights "do not allow it to use illegal means to invade the privacy and property rights of businesses and people."(8) After the district court judge denied the initial request to block the broadcast,(9) Food Lion sued again, this time alleging common law fraud, trespass, and civil conspiracy, and seeking $30 million in damages.(10)

On June 30, 1995, ABC filed a motion asking for a protective order to prevent Food Lion from using the fifty-five hours of videotape footage outside of the case.(11) The magistrate judge refused to grant the network's protective order, stating that ABC had not made "a clear showing of confidentiality, privilege, or copyright infringement."(12)

Finally, in August 1995, Food Lion attorneys screened the outtakes(13) for the first time, after which Food Lion claimed that the footage did not support the broadcast segment.(14) ABC's lawyers insisted that the program was fair.(15) Furthermore, they argued that ABC News should be able to keep the footage confidential because it was similar to notes taken by print reporters, and therefore protected by the First Amendment.(16) Nevertheless, the jurors were allowed to view some of the outtakes.(17)

This Note focuses on investigative journalism and hidden cameras and examines the implications of constitutional protection for reporter work product in the forms of both standard and hidden camera outtakes. This Note posits that the courts are biased against television reporter work product, and that this bias arises from a general prejudice against television as a medium. Arguing that such bias is inappropriate, this Note concludes that interference with the editorial process is a less appropriate control on media than other currently available controls.

THE REPORTER'S PRIVILEGE: A CONSTITUTIONAL PERSPECTIVE

Underlying Rationales

Although the Constitution does not provide explicitly for a reporter's privilege, the media have argued successfully that the First Amendment mandates a privilege protecting confidential news sources.(18) At least two strands of reasoning have developed in support of such a privilege grounded in the First Amendment.(19) The first falls under the rubric of the "public's right to know,"(20) an argument invoked by Justice Brennan in Herbert v. Lando.(21) A second grounding of the privilege, the "structuralist" view, was most notably advanced by Justice Stewart in a speech given at Yale Law School.(22) Justice Stewart's structuralist view of the privilege has, perhaps, a firmer constitutional foundation, while Justice Brennan's argument for the public's right to know relies more on overarching public policy rationales. Although both arguments appear in the case law discussing the reporter's privilege, Justice Brennan's view has greater appeal, and often has been invoked in subsequent First Amendment decisions.(23)

Branzburg v. Hayes--The Seminal Case

Branzburg v. Hayes(24) involved four consolidated cases in which reporters claimed a First Amendment privilege to withhold testimony before a grand jury. …