CBS steps into Lion’s den with undercover report

Thursday, April 29, 1999

At the least, you have to admire CBS’s chutzpah.

Less than two years ago, a North Carolina federal jury slapped ABC with a $5.5 million punitive damages verdict for using undercover newsgathering techniques. The unprecedented verdict probably received more attention than the underlying report, which used hidden cameras to expose Food Lion’s unsanitary meat-handling practices. Even the trial judge’s decision to throw out all but $315,000 of this verdict was bad news for the media, as he rejected ABC’s argument that its conduct was protected by the First Amendment.

So, when CBS decided to use a hidden camera to expose alleged patient mistreatment in a psychiatric hospital, one might have thought it would select a hospital in one of the 49 states that hadn’t so clearly repudiated investigative reporting.

Think again.

At issue last week was CBS’s right to broadcast a “60 Minutes II” expose about the conditions of a psychiatric hospital in Charlotte, N.C. Charter Behavioral Health Systems, which operates 91 hospitals in 32 states, sued to stop the broadcast, claiming that the network’s use of a tiny hidden camera constituted a crime and unlawfully invaded patients’ privacy. U.S. District Judge Graham Mullen denied the request just six hours before the program was to air, holding that the First Amendment prevented him from stopping the broadcast, even if CBS violated the law in preparing it.

“It appears to this court that the Supreme Court has elevated press powers to the point where prior restraint is all but impossible to obtain, even when the press sets out to commit a crime,” the Associated Press reported Mullen as saying. “Certainly, the press is not free to commit a crime or set people out to commit a crime. But even if they did, it does not give me the opportunity to shut it down.”

Mullen’s statements obviously are not ringing endorsements of CBS’s reporting techniques. CBS admitted that it equipped a clinical worker with a tiny camera on his eyeglasses and sent him into the hospital to gather evidence of alleged falsification of records and patient mistreatment. During the hearing before Mullen, CBS claimed that it blurred the faces and altered the voices of patients recorded with the hidden camera, but the hospital argued that the patients still would be recognizable to families and friends.

While Mullen’s ruling allowed the report to air, it will not stop the hospital’s lawsuit against CBS for damages. Indeed, the broadcast of the story undoubtedly will increase the amount of damages that the hospital will seek.

The amount of damages, if any, that the hospital ultimately will recover likely will depend on a 4th U.S. Circuit Court of Appeals decision in Food Lion v. Capital Cities/ABC Inc., which is expected before summer. If the appeals court upholds the trial judge’s ruling or reinstates the full jury verdict, CBS looks to be in trouble. If the court throws out the Food Lion verdict, CBS may be able to obtain a dismissal of the case before trial.

Although the Food Lion case appears to have made the three major networks more careful when using hidden cameras, CBS’s “ends-justify-the-means” defense was remarkably bold. The message sent loudly and clearly by the Food Lion jury, after all, was that the importance of a story does not allow a news organization to place itself above the law.

Those of us who hope that the Food Lion appellate ruling will be the final, favorable word in this area probably are hoping for too much. Finding the appropriate balance between the interests of the media and those of the subjects of undercover reporting is not easy, especially because First Amendment protection for newsgathering traditionally has been limited. Striking this balance therefore becomes a political exercise, one in which the media asks judges and juries to excuse varying degrees of deceptive conduct for a larger good.

Unfortunately for the media, judges and juries lately have not been terribly receptive to such requests, at least in North Carolina.

Maybe it’s time to try somewhere else.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.