U.S. District Court Judge Carlton Tilley Jr. spoke softly, as did the attorneys, so the assembled television, radio, and print reporters had to strain to hear every word in the low-ceilinged, carpeted, sound-muffled courtroom in Greensboro, North Carolina. As hard as it was to hear, it was even harder to remember sometimes what the ballyhooed Food Lion v. Capital Cities/ABC case was really about - and not about.
 It was not about the merits of ABC's 1992 PrimeTime Live report, which chronicled what appeared to be a range of stomach-turning food-handling practices in deli and meat departments of the grocery chain, based in Salisbury, North Carolina. Food Lion v. ABC was not a libel case. Although the 1,100-store chain has maintained that the report was false, it did not sue over the question of truth.

 Neither was the case about ABC's use of hidden cameras - lipstick-size lenses that, in this case, were worn under the wigs of two PrimeTime producers working undercover in three Food Lion stores, battery packs strapped to their backs and microphones concealed in their clothing.

 Technically, the trial revolved around whether producer Lynne Dale and associate producer Susan Barnett had improperly obtained their jobs in North and South Carolina Food Lion stores, essentially duping the company into thinking they were experienced, enthusiastic deli and meat department workers. The grocer's aggressive lawyers - a team from North Carolina and another from the powerful Washington, D.C., firm of Akin, Gump, Strauss, Hauer &AMP Feld - spotted a hole in the way PrimeTime got the story and drove a truck full of dynamite through it.

 Devising a comparatively new strategy, Food Lion managed to transform a business catastrophe into a public relations triumph, winning a $5.5 million award and leaving journalists with a whole new set of problems.

 The Food Lion case, at its core, is really about the extent to which journalists must be candid about who they are. Thus it has potential implications for any journalist, print or broadcast, attempting an Upton Sinclair - temporarily taking a job inside an organization to flush out deplorable conditions and practices, corruption, or other malfeasance. Floyd Abrams, the First Amendment lawyer, says that there is "nothing intrinsically unique about broadcast journalism as opposed to print journalism which makes the principles in this case more applicable to one than another."

 The jury found that the producers, their bosses, ABC News, and its parent had committed fraud, trespass, and breach of loyalty (an obscure concept that says every employee is expected to do right by his or her employer - in this case, ever so briefly, Food Lion).

 Judge Tilley, an amiable man who gave out awards to people in the courtroom for the best neckwear worn during the trial, barred the jurors from watching the actual PrimeTime broadcast, and instructed them to assume that the facts presented on television were true. They were only to weigh the legality of the methods used to get inside the castle, and the immediate effect of those methods.

 ABC said its own lawyer had cleared the operation as legal. The network also asserted that fraud requires intent to injure, and said it had assumed if the producers performed their Food Lion jobs there would be no such injury. Almost comically, the ABC producers were reduced to swearing that they tried to do their best as deli clerk and meat handler. The jury didn't buy.

 Since the trial was not about the PrimeTime segment itself, the compensatory damages could not cover the sharp drop in the price of Food Lion stock after the enormously persuasive show aired. It had previously been falling and promptly plunged another 25 percent. Nor could those damages make up for the eighty-eight stores Food Lion closed in the wake of the show, or the $174 million drop in net income in 1993. Hence, the compensatory damages - the costs associated with hiring and training two employees who never intended to stick around after they got their tape - were placed at $1,402.

 So how did we get from that paltry sum to $5.5 million in punitive damages, a figure 4,000 times greater?

 Credit the plaintiffs' lawyers. Their own fraud-and-trespass strategy required them to deal only with the facts of the two producers' employment, not the broadcast. But no sooner had the jury resolved guilt based on this incredibly narrow set of parameters, than the ace legal team began wildly expanding the horizons before the panel met again to consider the punitive figure.

 "Reporters all over the country need to know," boomed a confident Food Lion attorney, Tim Barber, in his riveting closing argument, "when you cross the line, you're going to get punished." At this point the plaintiffs transformed the jury into a kind of focus group on the real motives behind television journalism. The handsome, dark-haired North Carolina lawyer, together with his colleagues, portrayed a network hell-bent on ratings and profits, and willing to lie, stage evidence, and invade people's privacy to get them.

 The plaintiffs rolled outtake footage that at least raised doubts about whether ABC was scrupulously dedicated to the truth. Like didacts, the lawyers underlined, in a dozen different ways, how profitable the show and ABC's news division is, and how well-rewarded is its staff - Ira Rosen, PrimeTime's senior producer for investigations, made $215,000 in 1993, they pointed out - for delivering popular episodes. They connected hidden-camera television to that profit motive. PrimeTime Live was breaking laws in order to rake in the bucks, an end that hardly justified the deceptive means.

 After ABC's outside counsel - William Jeffress, Jr., from the Washington firm of Miller, Cassidy, Larroca &AMP Lewin - suggested that journalists have special rights, Food Lion's Barber jumped on the notion: "At heart, ABC is saying there are some stories so important the press ought to be allowed to break the law to pursue them. Who decides which stories justify it, and which don't? Who decides where that line is drawn? They have appointed themselves the ones to decide when it's all right to cross the line. Do you want to let the press decide when it's all right for them to break the law to protect us?"

 Of course, the debate looked very different from the other end of the lens. "What bothers me is: Who are the bad guys here?" asks PrimeTime's Rosen, one of the defendants. "Food Lion was putting the out-of-date food out there. We were just covering the story. And for that, we get put on trial? That's the Bizarro world, in Superman comic books. That's nuts."

 The Impact on Journalism

 Since ABC News intends to appeal, a modest caveat may be in order: "It's too early to tell the result until it's been to the Supreme Court and is in the law books," says Hugh Stevens, a North Carolina attorney and member of the ABC defense. Rodney Smolla, a First Amendment specialist at William &AMP Mary School of Law, doubts that the $5.5 million punitive damages award will stand.
 Indeed, on February 3, just days after the Food Lion verdict, the California Court of Appeals threw out a $1.2 million invasion-of-privacy judgment against ABC News in another PrimeTime Live hidden-camera case from 1993, this one about telepsychics. The court ruled that Mark Sanders, one of the targets of the segment, did not have a reasonable expectation of privacy in his workplace, and thus could not sue on those grounds. ABC said the court recognized the First Amendment interests at stake, and Roone Arledge, president of ABC News, called the reversal a "vindication of our belief that hidden cameras in undercover reporting can be important and legal tools of investigative journalism."

 The First Amendment prohibits any law abridging the freedom of the press. And yet, says Smolla, "There is no First Amendment immunity from ordinary rules of criminal law, and from tort rules that aren't themselves aimed at speech. So the criminal and tort rules that prohibit fraud and trespass apply to the press as they do to anybody else." Still, in Smolla's opinion, an appeals court would find either that the punitive penalties in the grocery store case are excessive under common law, or that their size poses constitutional problems.

 Regardless of the ultimate outcome, the Food Lion case has already taken its toll on ABC, financially and emotionally. It has made the network look bad. And the celebrated case has set America's newsroom bosses second-guessing their investigative methods.

 During closing arguments, attorney Andrew Copenhaver stood at the plaintiff's table and declared somberly: "Food Lion is not asking the media not to do their jobs." The assembled press smirked. ABC retorted that Food Lion most certainly was. Without deception, its lawyers wanted to know, how could we have shown the public these shockingly lackadaisical, even venal, food-handling practices? The assertions of both sides are worth taking apart.

The Accuracy of the Report

 First, was Food Lion's behavior shocking? Judge Tilley directed the jury to accept that ABC got the story right. Yet Food Lion implied - and at various points seemed to directly state - that ABC had erred.
 Just about anyone who saw the November 5, 1992, report was likely to be persuaded that ABC had really gotten the goods. Early on, a Food Lion meat department employee declared, "I've seen my supervisor take chicken out of the bone can, make us wash it, and put it back out. And it was rotten."

 Further bolstering PrimeTime's story were sworn affidavits from dozens of former and current Food Lion workers, certifying what appeared to be a pattern of pressures by management that led employees to cut costs by any means. (Food Lion sought to discount these people as aggrieved union supporters. The United Food and Commercial Workers Union had targeted the nonunion chain and helped inspire the story. ABC counters that it made clear that many of its sources did not support unionization. And, it argues, verifying its sources' accounts was a primary reason it went under cover.)

 Finally, the videotape: we saw, with our own eyes, old meat being redated and put out again for sale, old ground beef being mixed with new, out-of-date chicken getting a coating of barbecue sauce before being relaunched in the gourmet section.

 Yet Food Lion attorneys meticulously scoured the cutting room floor for evidence to the contrary. And the outtakes they rolled certainly could give the impression that the PrimeTime producers were working overtime to build their case.

 In one, associate producer Barnett asks another Food Lion worker what to do with a tray of old poultry and is told to throw it out. Moments later, we hear her muttering a profanity - "damn" - seemingly in disappointment. A second, similar incident takes place when a deli worker decides to clean a meat-cutting machine. This time, producer Dale is heard mumbling "shit." Food Lion characterized these as evidence of PrimeTime's eagerness to play gotcha. (Judge Tilley allowed the outtakes into the case - even though jury members never saw the program itself - by way of letting Food Lion try to prove breach of loyalty on the part of the two producers.)

 In their reporting, were Dale and Barnett exaggerating or fabricating? The broadcast, which the jury didn't see, suggests that no exaggeration was necessary to make the point. As for the swearing, the producers claimed that something else, a reaction to the pounds of hidden equipment in one case, caused them frustration at those moments.

 That story sounded like baloney to just about everybody in the courtroom. Reporters at the trial wondered why ABC didn't just own up and note that it's normal to be frustrated when reporters fail to visually document something they believe - from other evidence - to be true.

What ABC did wrong

 At a minimum, PrimeTime pushed the envelope by having its producers falsify their r?sum?s and rig references. "I really miss working in a grocery store, and I love meat wrapping," Dale wrote on her application. "I would love to make a career with the company." Is such a lie permissible even in pursuit of the truth?
 Many journalists have argued that ABC could have done its story without violating the law, and that it went with the hidden camera because viewers find it sexy. Indeed, PrimeTime said that seventy current and former Food Lion employees had attested to unhealthful food-handling practices at more than 200 Food Lions in on-the-record interviews, and that others had done so off the record.

 Food Lion cited the network's own expert witness, Dr. Louis Hodges, who confirmed under cross-examination there were other ways to capture stories. He also testified that most of the nation's best newspapers don't allow their reporters to engage in deception at all.

 In fact, many journalists oppose deception because it undermines, by definition, the credibility of the journalistic mission itself: to tell the truth. That's the argument that a Food Lion lawyer made to Fortune magazine last December about one of the producers in the case: "She's lied to get in there. She's lied to her fellow employees. Who can say whether she's going to tell the truth about the dates on a piece of meat?" Time Inc., for one, has a rule: "When contacting a subject or a source, you should routinely identify your position and your magazine and state that you are working on an article intended for publication" - unless an exception is approved by the top editors.

 Yet there is a journalistic tradition of undercover reporting, in print as well as broadcast, that involves a degree of deception. The 1995 Pulitzer for national reporting went to The Wall Street Journal's Tony Horwitz for a series on dead-end jobs that included his undercover work in a chicken plant. Horwitz powerfully recounted the degrading and dangerous routines on the "disassembly" lines in the poultry industry. On his job application, Horwitz did not note that he worked for the Journal; instead he listed "Dow Jones," which, to some people, might look like a poultry wholesaler named "Don Jones." Just last year, Jane Lii of The New York Times got a job in a garment factory, and catalogued the brutal fifteen-hour work days and fifteen-minute lunches of an invisible sector of society. Michael Oreskes, the Times metro editor, says Lii "was under express instructions to do nothing misleading." Still, she didn't have to make anything up, because the manager simply saw a young Chinese woman and asked if she was ready to work hard.

 Actively lying, ö la PrimeTime, is different from simply not volunteering that you intend to expose an employer to the world, allowing the perception to form that you are just another worker when you are not. But precisely how different is a matter of debate for philosophers and lawyers. And it remains true that people and institutions with something to hide aren't about to invite journalists in to do their thing.

 The TV Burden

 Perhaps because PrimeTime airs more hidden-camera footage than the other half-dozen newsmagazines combined, its people find themselves lying a lot. The man who ran PrimeTime Live when the Food Lion segment aired, the show's former executive producer, Rick Kaplan, now executive producer of special projects for ABC News, testified by video that he guessed that in approximately one-third of the instances where ABC employees use hidden cameras, they also make false statements. Kaplan was fined $35,000 by the jury.
 Ira Rosen, who supervises the PrimeTime investigative unit and was socked for $10,750 in punitive damages, is frustrated by what he calls "the high and mighty print press." He notes that newspapers, some of which criticized PrimeTime, aren't primarily about pictures.

 Today the public, fed for years - mostly by PrimeTime itself - on the satisfaction of seeing perpetrators caught in the act, may not easily accept anything other than actual footage. ABC attorney William Jeffress made this point to the jury, citing an acclaimed PrimeTime piece on abuses in a nursing home: "It's one thing for a reporter to say, 'I was told a patient was tied to a chair,' but it is quite another thing to say 'I saw it,' and another to record, document it." He also pointed to PrimeTime pieces documenting race and age discrimination and mistreatment in veterans' facilities. (Other segments caught day care workers abusing their little charges and inexperienced technicians misreading mammograms.)

 On the other hand, Jeffress did not mention PrimeTime stories that cheapened the show and diminished the argument for hidden cameras. The episode attempting to prove the earth-shattering charge that telepsychics are phony comes to mind.

Lessons from the jury

 Many observers were surprised when the twelve-person jury, half men and half women, took a full six days to reach a verdict in the punitive phase of the trial. One juror felt ABC had done nothing wrong, and wanted the punitive damages to be $1. Others settled into a range of $1 million to $8 million. The most adamant for a walloping penalty was Lois Marie Bozman, a sixty-four-year-old retiree. She was so vehement that the foreman sent in a note to the judge saying that she was being obstructionist. Bozman was passionate when I interviewed her the day after the verdict: if it had been up to her, she said, ABC would have paid $1 billion.
 Her profile is revealing. She is a loyal Food Lion customer who figures she knows her grocery store better than some out-of-state television producer. She says she has never had bad meat there: "I have never seen anything nasty or dirty in Food Lion."

 Bozman, an intelligent, forceful, plain-spoken woman, has a long list of complaints about modern television methods. She is particularly concerned about the invasiveness of the hidden camera and its potential for exaggerating or misrepresenting events. She painted a scenario in which an employee unburdens himself about his employer to a fellow "employee" who is secretly videotaping. "The next day they may feel different about their company, but it's on TV! Nobody should be made to share their innermost thoughts unless they want to." Here, she seemed to be talking less about the actual fraud and trespass charges than about the potential harm to an essentially innocent employee. Back in 1993, when, on assignment for cjr, I interviewed Food Lion employees shown on the segment, several expressed a sense of betrayal by the producers, who befriended and then filmed them.

 Because of such tactics, says Bozman, "I don't trust them to do an honest job - not all the way." She spoke of a moment after the verdict, as the jury was heading home for the last time. Bozman, a white southern woman, turned to a black male juror. "I said I'll probably never see him again. And I hugged him. Then I got home and I got to thinking about that. Suppose they'd been there and taping me? Somebody would think I was trying to make this man-his wife would think that."

 That same argument about hidden-camera video's potential for creating false impressions was cited by ABC itself, in claiming that the outtakes did not represent what the Food Lion attorneys said they did.

 Tricks of the Legal Trade

 Food Lion was skilled at exploiting ordinary North Carolinians' attitudes toward arrogant, rich Yankees. For example, Barber displayed for the jury a bar graph, with yellow, red, black, and light- and royal-blue bars representing ABC's profit growth. He cited revenue figures for Capital Cities/ABC of $6.8 billion in 1995.
 People don't think a priest ought to be getting rich. They experience some dissonance when they hear a media organization talking about lofty objectives while someone else is pointing to that organization's vast wealth. "When they set out to do these stories," says juror Bozman, "they're out to make money."

 The problem for journalism, of course, is that news organizations are out to make money - more than ever before. The pressures to do so are unrelenting. So it becomes easier to argue, as Food Lion's lawyers did, that no well-paid producer dares return home empty-handed, after promising a big score with a story and spending his or her employer's bundle. "Serious journalists don't always bat 1.000," a Food Lion lawyer asserted. "Miss Barnett has."

 Another tactic was to make clear to the very North Carolina jury that there was a sinister big-city force here to be reprimanded. References to sending a message to executives in "New York" were common. So were what appeared to many journalists at the trial a not-very-subtle anti-Semitic appeal. The Food Lion attorneys, after speaking almost fondly of Diane Sawyer, the on-site correspondent on the story, repeatedly lit into producers Rick Kaplan and Ira Rosen. There were frequent references to Rosen's full name in closing arguments, and the names of other ABC News employees with Jewish surnames. Later, while trying to persuade the jury to award punitive damages in order to make ABC reform itself, Barber compared ABC, for illustrative purposes, to a fictitious "Fagin" family, which knowingly buys stolen hubcaps for its junkyard. Food Lion repeated Barber's Fagin analogy in a press release.

The Missing Paper Trail

 True to most lawyers' advice, ABC had no paper trail to show what process it went through in deciding the operation was on sound legal ground. One staff attorney, Jonathan Barzilay, testified that he gave producers an oral green light. When he testified via video deposition Barzilay was fairly vague in his recollections of what he had told to whom. The producers said he had assured them they weren't breaking any laws. He didn't remember too many particulars.
 The jurors, prompted by the plaintiff's counsel, found all this suspicious. "Barzilay kept saying I don't know, I don't have any papers, I can't recall," says juror Bozman. "When you're working for a big business and going into an important, important thing like this, wouldn't a smart lawyer keep papers on it?"

 Who will be Chilled?

 North and South Carolina don't ban the use of hidden cameras, but a growing number of states do. (A resource guide on laws about surreptitious recording, video and audio, can be found on the website of The Reporters Committee for Freedom of the Press - http://www.rcfp.org.) Yet although no numbers are available, the networks all have hidden cameras, and local television stations throughout America have added them to their arsenals in the last few years. Advancing technology has made them easier to hide, as small as a lipstick. And, as Food Lion's lawyers pointed out, they can jolt ratings.
 Adam Shapiro, the reporter covering the Food Lion trial for the local NBC affiliate, WXII, told me his station is awaiting delivery of its first mini "lipstick-cam," and that he is looking forward to employing it. But only after careful consideration.

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