How Free Can the Press Be?

Legal Privilege: Above the Law? (Food Lion v. ABC)

232 how free can the press be? Story 8 Legal Privilege: Above the Law? Food Lion v. ABC 194 F.3d 505 (4th Cir. 1999) In fall 1992, ABC’s Prime Time Live did a “hard-hitting” undercover report on the safety of food-handling practices employed in stores owned by Food Lion, a large grocery chain located in southeastern United States.1 Based on allegations of unsafe and unhealthy practices lodged by a number of former and current Food Lion employees, ABC decided in early 1992 to run a story in its news magazine, Prime Time Live. Many current and former employees were interviewed. Food Lion was then in the midst of a labor dispute. Many, though not all, of the employees ABC interviewed were supporters of the United Food and Commercial Workers Union, which was engaged in a battle with the nonunionized Food Lion chain. The employees’ allegations, if true, were serious: unsanitary food handling, repackaging and redating old meat, and selling spoiled food. ABC decided to film the practices. The network assigned two Prime Time Live producers, Lynne Litt (then Lynne Dale) and Susan Barnett,to apply for positions in Food Lion stores,with the purpose of filming the food-handling practices with hidden cameras secreted in their wigs. Each applied, giving false employment backgrounds,false references,and other false information. They were hired and worked for a period of time in different Food Lion stores. Altogether the two undercover producers shot forty-five hours of tape,which Prime Time Live edited down to about ten minutes of footage that was used in the Prime Time Live broadcast. The Prime Time Live report aired on November 5, 1992, more than nine months afterABC began its investigation of Food Lion’s food-handling practices . The report was powerful and, for Food Lion, devastating. It showed redating of meat for which the sale date had passed,unsanitary practices,and the trimming of apparently rotten meat or produce and its repackaging for 1. Portions of this story are drawn from a speech entitled “Means and Ends and Food Lion,” given by me as a Thrower Lecture at the Emory University School of Law in February 1998 and later published in expanded form as “Means and Ends and Food Lion: The Tension between Exemption and Independence in Newsgathering by the Press,” Emory Law Review 47 (1998): 895ff. sale. The piece was graphic. It was hard-hitting. It was right there on film, which meant, to virtually every viewer, that it was real. It spoke for itself. But wasABC’s segment really real? Marshall McLuhan warned us,long ago, to be careful about “the real.” What appears real may only be the message of the medium. And Walter Lippmann implored journalists to strive to represent reality, by which he meant not events themselves but events in perspective and in a context that would lend them meaning. ABC’s Food Lion segment appeared on the surface to do just that: the film of Food Lion’s practices gave the events meaning—indeed all the meaning that was necessary. There they were, in full color, before our very eyes. The medium and the message conspired to declare reality, not to report it. Further questioning was made stillborn. The picture was all the perspective and context needed. As it turns out, there was more to the Food Lion broadcast than met the eye,more than ABC and Prime Time Live chose to reveal.In part,the “more” consisted of the tactics that Food Lion challenged in the lawsuit it brought against ABC: the deception used by the producers to get their jobs; their unauthorized entry into nonpublic areas within the Food Lion stores; their use of hidden cameras, secreted in their wigs; the untrained efforts of Litt and Barnett in whose unschooled hands healthful and safe food practice rested for a time; the more than occasional hints of “staging” in the camera work; or the sometimes overenthusiastic efforts of the producers to get an admission or a good “shot.” These additional facts were disclosed, if at all, only by inference and silent implication and thus only to the critical and very knowledgeable viewer. They were thoroughly explored in the trial. But the “more” consisted also,and more fundamentally,of other facts that bear on ABC’s newsgathering practices but lurk in the deeper background of the case. These facts concern the news decisions made by ABC: not what ABC did, but why. Why did ABC...