September/October 2000 | Contents

POINT OF VIEW:
'If Journalists Want to Test the Law, I'll Be There to Meet Them'

BY NEVILLE L. JOHNSON

It is no longer business as usual for journalist-spies. The supposed great tradition of undercover journalism is a shattered myth. Nellie Bly was a self-aggrandizing stunt journalist held in disrepute by many of her peers. Upton Sinclair's The Jungle was a novel -- and he didn't break any laws writing it.

Over the past seven years, I developed quite a nice legal practice by bringing lawsuits against ABC's PrimeTime Live. The courts spoke most loudly in Sanders v. American Broadcasting Companies, Inc., a 1994 case in which ABC News used professional hidden camera operatives -- who did not reveal their real intentions -- to secretly tape at the office of a psychic hotline.

Last February, the network finally paid out nearly $1 million (almost half of it in punitive damages), but there is no evidence that ABC News ever bothered to report the case's resolution, or to apologize to Mark Sanders, the psychic reader -- or to the viewers who were deceived by the broadcast. The Sanders case, tried before Food Lion, is significant because it was the first time in broadcast history where substantial actual damages, based on intrusion, were levied and upheld on appeal -- significant, too, because it was the first reported case where punitive damages also were upheld. Moreover, it was quite a rare unanimous opinion by the California Supreme Court, in June 1999.

Sadly, there are no standards in place at any TV network that require an on-air report of a judicial defeat. Law professor David Logan of Wake Forest University believes that journalists cannot call themselves members of a profession because no formal training is required, there is no sublimation of self-interest to the public good, and no self-regulation.

One startling, apparently never-reported fact about the Sanders case was that the massed forces of media -- the newspaper Publishers Association, the National Association of Broadcasters, the Newspaper Association of America, the Reporters Committee for Freedom of the Press, CBS, NBC, CNN, and other media giants -- filed an amici curiae brief in the California Supreme Court arguing there should be no right of privacy in many of the workplaces of America; that citizens should go to their jobs with the understanding they might be secretly taped for broadcast. Why wasn't the public advised of this radical position -- which the justices rightly rejected?

When the press loses in court, it has a moral obligation to report that news. It is only fair to the victim of the unethical or wrongful conduct. The public has a right to know if journalists broke the law while researching the story -- and to hear that from the news organization that made the tainted information public.

Mark Sanders's reputation remains besmirched. A theme of the trial was that he was such a low-life that he didn't deserve much in the way of damages. Since then, the producers of that piece, Ira Rosen (also a defendant in Food Lion) and Thomas Albert Oetgen (now at Dateline NBC), are still gainfully employed as TV journalists.

Journalists writing or broadcasting negative stories should allow full and fair rebuttal by their victims. That would ensure robust debate. The Minnesota News Council is an excellent forum for holding journalists accountable, yet media organizations elsewhere eschew such a concept. Why? Because journalists are allergic to public self-examination.

If journalists cannot create and live up to a serious code of ethics, but want to test the law, I'll be there to meet them when they err. I consider it an important public service: to proclaim that journalists must not break the law to gather the news.

Neville L. Johnson, an entertainment and media lawyer specializing in privacy and libel law, is a partner in the Los Angeles-based firm Johnson & Rishwain.