ABC and Food Lion Case

1. ABC and Food Lion
Investigative journalism and ethics*
*Some information for this presentation from: The Reporters Committee for Freedom of the
Press http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-
law-spring-2012/landmark-food-lion-case.edu/comm/comm403_jsb15/foodlion.html

2. The Story
• The landmark Food Lion case
• Kristen Rasmussen (
• Journalists who lie on employment applications to gain
access to private facilities for newsgathering activities
are not protected by the First Amendment and may be
liable for trespass or other offenses, a federal
appellate court ruled more than a dozen years ago in a
ruling that remains the leading case on the issue.
The Reporters Committee for Freedom of the Press

3. The Story
• In November 1992, two ABC News producers obtained
jobs at Food Lion grocery stores in North and South
Carolina by submitting applications with false
references, misrepresenting their educational and
employment experiences on their résumés and omitting
their current employment with the network.
• ABC broadcasted a report on “PrimeTime Live” alleging
that Food Lion’s meat department at those stores
required employees to engage in unsafe, unhealthy or
illegal practices, including selling old meat that was
washed with bleach to kill odor, selling cheese that had
been gnawed by rats and working off the time clock.

4. What Reporters Did at Food Lion
• Each worked undercover only one or two weeks at the
store, and while there used hidden cameras to secretly
record grocery store employees treating, wrapping and
labeling meat, cleaning machinery and discussing meat-
department practices.

5. Lawsuit
• Food Lion sued ABC in July 1995 in federal court in
Greensboro, N.C., alleging fraud, breach of the duty of
loyalty, trespass and unfair trade practices under North
Carolina law. The chain argued that ABC used illegal
newsgathering methods to obtain the information for the
report.
• In December 1996, a jury found ABC liable for fraud,
trespass and disloyalty. The next month, the same jury
awarded Food Lion $1,400 in compensatory damages and
$5.5 million in punitive damages for fraud, along with $2 in
nominal damages for breach of loyalty and trespass. But the
U.S. District Court found the punitive award excessive and
reduced it to $315,000.

6. Appeals Court Conclusions
• Perhaps more significantly, though, the appeals court
concluded that the ABC producers trespassed.
• The court explained that the journalists had permission
to be in the stores where they worked because Food Lion
had hired them, but they did not have permission to
secretly videotape footage in non-public areas of the
store for use on ABC because Food Lion had not
consented to their presence for that purpose.

7. What the Courts Decided
• The court held that the lower court correctly
declined to apply a First Amendment analysis to
Food Lion’s breach of loyalty and trespass
claims.
• The laws regarding employee loyalty and
trespass were laws of general application, from
which the press could not be exempt, and the
application of those laws to the media would
have merely “an ‘incidental effect’ on
newsgathering,” the court found.

8. Jury Award
• The jury refused to award punitive damages
against the reporters, Dale and Barnett. In post-
trial proceedings the district court ruled that the
punitive damages award was excessive, and
Food Lion accepted a remittitur to a total of
$315,000.

9. Proving
• To prove fraud under North Carolina law, the plaintiff
must establish that the defendant (1) made a false
representation of material fact, (2) knew it was false
(or made it with reckless disregard of its truth or
falsity), and (3) intended that the plaintiff rely upon it.
In addition, (4) the plaintiff must be injured by
reasonably relying on the false representation.
• It is undisputed that Dale and Barnett knowingly made
misrepresentations with the aim that Food Lion rely on
them. Thus, only the fourth element of fraud, injurious
reliance, is at issue. Food Lion claimed two categories
of injury resulting from the lies on the job applications:
the costs associated with hiring and training new
employees (administrative costs) and the wages it paid
to Dale and Barnett.

10. Another Side of this Story
• ABC's own admissions showed that profits, not public
service, motivated the segment. ABC aired the segment
during the "sweeps period," the week in which
viewership determines advertising rates. ABC vice
president Richard Wald testified that "one rating point
of the evening news is worth millions to the bottom
line.“
• Economics is paramount in the news business, Wald
said. Since World War II "the news was distributed to
the public, but it was sold to an advertiser. And what
the advertiser bought was not the quality of the news
but the quality of the audience.““
Accuracy in Media: http://www.aim.org/publications/special_reports/foodlion.html

11. Other Testimony
• Important dollars-and-cents testimony came from Robert Lissit of
the S. I Newhouse School of Public Communications at Syracuse
University, a expert on TV content analysis.
• Under questioning by Michael J. Mueller of the Akin, Gump trial
team, Professor Lissit testified that he found that PrimeTime Live
aired 141 segments involving hidden cameras from August 1989,
when the program began, through May 1996--80 original shows, 50
reruns and updates,and 11 miscellaneous.
• The highest concentration, 35 of the 80, came during the so-called
"sweeps period" of September through November. October and
November, he said, "are the two months generally believed to
provide the greatest return, the highest earnings for a network."
November is the most important month for ratings for local
stations. He said, "The higher the rating the higher the
[advertising]rate. The more they can charge for the commercials.

12. The Question of
• The debate over ethics in this case continues in the
court of public opinion, as well as in newsrooms and
corporate boardrooms across the country. While there
are legitimate questions to pose about the morality of
Food Lion’s actions, most of the discussion focuses on
journalism ethics and issues of honesty, accuracy and
fairness.
• There is a pivotal question: Is it ever justifiable for a
journalist to violate the principle of honesty to honor
the principle upon which journalism is founded, a duty
to provide the public with meaningful, accurate and
comprehensive information about significant issues?
See this website for more information:
http://www.poynter.org/uncategorized/2125/abc-and-food-lion-the-
ethics-questions/

13. The Question of
Timothy Lynch, assistant director of the Cato
Institute’s Center for Constitutional Studies, says
this: The media should expose corporate
misconduct. But journalists must respect the rights
of others and operate within the bounds of the law.
That’s the moral of Food Lion v. ABC News.
http://www.cato.org/publications/commentary/food-lion-case-are-
journalists-above-law