Only 2 bucks for Food Lion, but journalists still feel the chill

Friday, October 22, 1999

Responsible journalists believe it is important to tell readers of newspapers and viewers of television the truth in reporting news about important public policy issues.

That seems so obvious it hardly is worth writing a column about. But because ABC-TV News used deception in reporting that Food Lion, the supermarket chain, sold tainted chicken, cheese, beef and fish, the statement about journalists telling the truth is mired in controversy.

What deception? Well, two ABC ‘PrimeTime Live’ journalists lied about who they were in order to get jobs as food handlers at Food Lion, then took video pictures of the food with cameras concealed on their persons.

And what did the cameras show? A federal judge described it this way: ‘Employees (of Food Lion were) repackaging and redating fish that had passed the expiration date, grinding expired beef with fresh beef and applying barbecue sauce to chicken to mask the smell and sell it as fresh.’

Other employees of the food chain had told ABC that Food Lion was selling the public rat-gnawed cheese and rotten meat. In order to get pictures to prove this, the two reporters assumed roles as workers for the grocery chain, all the while acting as undercover reporters.

After the story — anchored by Diane Sawyer — was telecast, Food Lion’s stock dropped by 20%. Sales fell by more than 9% in one month. So Food Lion sued ABC.

It was not a libel suit. The giant food chain did not contest the truth of the story. The suit said that the journalists had used deception to get their jobs and had trespassed on Food Lion property to get the damaging story. Lawyers for the supermarket asked a North Carolina jury for almost $2 billion in damages from ABC.

In January 1997, that jury found that Food Lion had suffered $1,402 in actual damages. This was a tap on the wrist for ABC, so after further deliberations, the jurors decided to add $5.5 million in punitive damages. The jury foreman said this was intended to send a message to the media to be responsible.

The trial judge said $5.5 million was too much and cut the award to $315,000. Compared to the $2 billion the lawyers had asked for, that was a slap on the wrist.

But ABC appealed. And this week a federal appeals court in Richmond, Va., struck down all but $2 of the judgment. That’s right: not 2 billion, but two bucks. One dollar for the trespass and another dollar for violating a North Carolina statute that requires an employee to be loyal to the company.

Early on, as the case was making its way to the court of appeals, controversy swirled around ABC’s actions in this case. Opinion polls indicated that the public agreed overwhelmingly with the jury that journalists should not lie to get news.

Professional journalists argued among themselves about ABC’s tactics. Some critics complained that ABC had not telecast the story to alert the public about the sale of tainted food, but to build audience ratings. Others argued that the story reflected journalism of the highest quality because it alerted the public to an important public policy issue: the sale by Food Lion of unsanitary food.

Considering the fact that the public currently looks on journalists with the same jaundiced and suspicious eye that it focuses on politicians, lawyers and used-car salesmen, the public attitude revealed in the poll results should not have been surprising.

The controversy inside journalism, however, reflected something of a change on the part of those whose profession is the gathering and disseminating of news.

There was a time when ‘underground journalism’ — undercover reporting — was a rare but respected practice in newsrooms. If the wrong to be exposed and righted by the news media was substantial, many news executives — and I was one of them — approved of it.

In a famous case, the Chicago Sun-Times cooperated with a citizens’ organization to buy a bar and grill, then planted journalists as bartenders and waiters in order to expose local government bribery and corruption. The Mirage Bar story was a sting — not unlike undercover operations conducted by police. For a time, it cleaned up the evil in Chicago.

As an editor and publisher of The Tennessean at Nashville for 30 years, I approved three major undercover news enterprises that I felt were of great benefit to readers. A couple of others were wasted efforts, uncovering and disclosing nothing.

Before launching the three projects, our paper established a three-point policy on when such projects were permissible: First, the evil had to be of compelling interest to our community of readers; next, the placement of reporters in deceptive roles within an institution or organization had to be the only way to get the complete story; finally, there had to be disclosure of the deceptive practice when the story exposing the evil was published.

In one case, I asked Jerry Thompson, a Tennessean city editor, to leave his job and go underground as a member of two Ku Klux Klan groups, one headquartered in Alabama and the other in Louisiana. It was a tough and dangerous assignment. When it was over, the reporter and his family were provided police protection for most of two years.

Prior to making the assignment, I had assigned a team of three journalists to try in conventional ways to expose the true nature of these Klan groups under their leaders, David Duke and Bill Wilkinson. Both men insisted that they had no ill will for African-Americans or Jews, saying they were merely interested in using the KKK to promote the cause of white people.

Inside the Klan, Thompson found both organizations to be racist, armed camps. On one occasion, his presence in the Klan defused a possible outbreak of violence. Later, when Duke became a major political candidate in Louisiana, reporters from across the nation relied on Thompson’s series of stories and his book, My Life in the Klan, to help them portray Duke’s character accurately.

Thompson, today a columnist for The Tennessean and ill with cancer, says he would not hesitate to take on the assignment again — despite the danger.

The second project involved Frank Sutherland, then a Tennessean reporter and now the paper’s editor. After receiving unconfirmed reports of abuse of mentally ill patients at Central State Hospital, Sutherland was assigned to have himself admitted to the institution as potentially suicidal. Prior to his admission, interviews with relatives of patients, former and present employees and medical professionals had failed to confirm suspicions about maltreatment of patients.

Sutherland remained in the hospital for 30 difficult days. While there, he found that half the doctors on the staff were not licensed to practice medicine in Tennessee. The neglect and abuse of patients and the physical condition of the hospital were scandalous. His series of articles created a demand for legislative action to correct the problems inside the facility. Major reforms resulted.

The third project involved a Pulitzer Prize-winning reporter, the late Nat Caldwell, who posed — much as Sutherland had done — as an elderly nursing-home patient. His stories put the spotlight on some outstanding homes — and some where treatment was outrageous. Again, his work helped correct the worst of them.

As editor, Sutherland said recently that because of current negative public attitudes toward the news media, he would not assign another reporter to do what he once did. The Gannett Co., owner of The Tennessean, recently approved a set of ethical standards and principles that would make journalistic misrepresentation impermissible, Sutherland said.

I know many other journalists who agree with him. Their attitude is understandable. They are convinced that there probably are other ways journalists can expose and right wrongs. I hope so.

Still, I know that Klan violence remains in some remote places. And abuse of patients is a problem in some hospitals and nursing homes. And tainted food is sold in a few supermarkets.

Perhaps the appeals court ruling in the Food Lion case will serve to remind the public that sometimes journalists should be allowed to tell a small lie in order to expose a large evil.