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

By Tuley, Alison Lynn | William and Mary Law Review, July 1997 | Go to article overview

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


Tuley, Alison Lynn, William and Mary Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.