Punishing the Press

The 1990s have been a humbling time for journalism, particularly investigative television journalism. An NBC News magazine program had to apologize for fakery in its investigation of General Motors trucks; ABC and CBS both backed down under pressure from tobacco corporations, with ABC settling a $10 billion libel suit out of court and apologizing on the air.

Three recent cases have deepened an already pervasive unease among journalists, for each was a reminder that not only are journalists mired in an intense legal struggle but also that their relationship with the public has become dysfunctional. The three investigative projects that came under scrutiny each started with strong public-interest intentions - one to alert unwary investors, another to warn consumers about unsafe food, and the third to inform travelers about unsafe airline procedures. Two of the three programs received professional awards. But in three states, panels of citizens - two juries and a news council - overwhelmingly decided that journalists had gone too far off the track, less in what they covered than how they covered it.

- In Miami, a jury on December 18 gave the year's biggest libel award - $10 million - to banker Alan Levan and BankAtlantic Financial Corpor-ation, a bank holding company, in a libel suit over a segment in 1991 on 20/20. The ABC newsmagazine charged Levan, the bank's chief executive officer, with hoodwinking investors into buying bonds that were destined to become worthless. But the judge barred jurors from hearing what the defense considered clinching evidence - that those same investors had sued Levan to recover their losses. The investors settled with Levan out of court and, because the verdict against him was vacated, the libel judge ruled that the jury could hear nothing about it; Levan was given a clean slate.

- In Greensboro, North Carolina, two days later, another jury found that another ABC News magazine, PrimeTime Live, had defrauded and illegally trespassed on Food Lion supermarkets. Seeking to show that Food Lion was selling dangerously tainted meats, PrimeTime Live sent undercover producers to get Food Lion jobs. The producers faked résumés, were hired, and once inside used concealed cameras to document their exposés. In its first verdict, the jury awarded Food Lion only $1,402 in actual damages, but a month later it imposed punitive damages of $5.5 million - far short of the up to $1.9 billion Food Lion asked but hardly pocket change. The question of the truth of what ABC broadcast in 1992 - whether Food Lion in fact endangered the health of those who ate what it sold - never came up. This was not a libel trial, in which Food Lion's first hurdle would have been to prove the broadcast false. Food Lion ingeniously chose instead to accuse ABC of fraud in the reporting process. (Food Lion insisted outside the courtroom that the story on ABC was libelous but after the broadcast reformed its food-handling practices.)

- In Minneapolis, the twenty-six-year-old Minnesota News Council, a non-official body of twelve active and former journalists and twelve community leaders organized to examine complaints about the news media, voted 19-2 to uphold a complaint against WCCO-TV, Minneapolis. Northwest Airlines charged that the television station "painted a distorted, untruthful picture" of the carrier's safety practices in a series that won a regional Emmy award. No monetary damages were involved, but WCCO-TV was badly bruised.

There was more. In Houston, a jury gave a $5.5 million libel award to a Texas state representative who was running for mayor after a local station, KTRK-TV, charged that he had engaged in an insurance scam. In Pecos, Texas, a jury awarded $5 million in punitive damages to a company portrayed in Michael Moore's quasi-journalistic TV Nation as spreading toxic sludge over a Texas ranch. In Atlanta, NBC News eluded a possible libel suit for Tom Brokaw's on-air statements about Richard A. Jewell, who was for a time the chief suspect in the Olympic bombing last summer; the network reportedly paid him more than $500,000 to settle - and Jewell's lawyers threaten to sue many other broadcasters and newspapers.

Shaken by these setbacks, the Food Lion case in particular, Bruce Sanford, a veteran First Amendment lawyer, predicted: "You can expect journalists in the wake of this to give us more stories about Dennis Rodman and Madonna instead of more stories that are important to us." Added Jane Kirtley, executive director of the Reporters Committee on Freedom of the Press: "The specter of a verdict of this magnitude . . . will have a chilling effect on investigative journalists all over the country."

But many journalists, notably on the print side, were not so sure. Columnist A.M. Rosenthal said in The New York Times that by going undercover at Food Lion, ABC investigators were doing what they would "never willingly allow done to themselves." He added that he had not yet encountered a story that merited misrepresentation. (In fact, the Times occasionally has used undercover reporters - sometimes for such serious purposes as an exposé about the abuse of immigrant labor, sometimes otherwise, as when a Styles section writer disguised as a doorman winnowed the crowd outside a New York night spot called Chaos.) Columnist Jonathan Yardley charged in The Washington Post that what ABC did was close to entrapment. Lewis Lord, in a column for U.S. News & World Report, warned that TV muckraking was becoming thin and sensational, just like the original turn-of-the-century muckraking when it went into decline.

Clearly, many journalists are gripped by a crisis of confidence as they face serious professional questions, legal challenges, and public skepticism. The targets of investigations, notably corporations, are willing to throw every legal resource into retaliation. They have found ever more ingenious ways around constitutional barriers, most recently the groundbreaking charge of fraud employed in the Food Lion case.

Those who speak for television journalism have reacted with a kind of astonished naïveté, as if their avowals of good faith were an adequate reply to legal questions. Only now, it appears, is television journalism discovering that it is treading on shaky ground.

Most of the great libel battles of recent years have involved print publications. They have long since learned that, contrary to what many journalists thought after the 1964 Supreme Court decision in Times v. Sullivan, plaintiffs, even public figures, can win libel suits. Sullivan provided an "actual malice" loophole - the opportunity to prove that a journalist knowingly published a lie or acted in "reckless disregard" of the truth. At first the loophole looked too tiny for plaintiffs to use, but they eventually learned that it could be employed to turn newsrooms inside out, to examine every embarrassing slip in method or judgment.

In the past six years, juries have awarded a quarter of a billion dollars in libel damages. Even when the damages are vacated on appeal - as they are in almost half the cases - the news organization has been put through a protracted ordeal. A libel suit by an assistant district attorney against The Philadelphia Inquirer lasted twenty-three years; the Inquirer settled in 1996 for an unspecified amount, but at the time the newspaper owed the plaintiff $24 million in damages. The Inquirer or ABC News may be able to bear such burdens, but similar penalties and distractions have crushed or bankrupted smaller news organizations.

As The Wall Street Journal reported in the aftermath of the Miami case, there has been a sharp upswing in libel awards. True, awards did rise in 1996 after several slack years. But big libel awards against news media have been a continual phenomenon of the 1980s and 1990s. The libel damages awarded in 1996 - $22.7 million - come nowhere near matching the disastrous years of 1990 and 1991. What may be new is that television journalism may get a larger share of big-money lawsuits, most of which have involved, and still involve, news-papers.

Just as seriously, the Levan and Food Lion cases demonstrate that plaintiffs are stepping up attacks on the newsgathering process, especially as it has developed on television news magazines - the hidden camera, the ambush interview, the disguised identity. The Food Lion case involved charges of trespass and deception in gaining access to the news site; Levan's attorneys picked on a segment misleadingly depicting a congressional hearing. Neville L. Johnson, a Los Angeles plaintiffs' lawyer, says he has eight lawsuits pending against the networks involving the use of hidden cameras or undercover reporters.

Many journalists mistakenly assume that the First Amendment protects reporters wherever they choose to go, whatever they may do in the pursuit of a story. Courts have never supported these assumptions. For example, the Watergate generation of investigative reporters contended that the First Amendment protected them when they concealed the identity of sources to whom they had promised confidentiality, even in some instances when they might have seen the source committing a crime. The unfriendly Warren Burger Supreme Court rebuked them in no uncertain terms. While it noted in Branzburg v. Hayes (1972) that journalism was entitled to "some protection for seeking out the news," it took a narrow view of that protection. Justice Byron White snidely suggested that journalists believed it was "better to write about crime than to do something about it." The court ruled that reporters could not use a First Amendment plea to excuse themselves from revealing the identity of sources to courts and grand juries. It took years, and many days spent in jail for contempt, before there was a truce, with prosecutors agreeing to demand sources only when there were no reasonable alternatives.

The court added in Houchins v. KQED (1977) that the First Amendment did not authorize reporters in pursuit of news to go where the public could not go (in this case, the innards of a prison). At less elevated levels, courts again and again have denied the right of journalists to commit even minor illegal acts in pursuit of a story - as when a television crew was snagged for trespass when it tried to film overcrowding at a Manhattan restaurant.

Since those days, a new generation has entered journalism, most prominently in television. It has lived in a time when the Supreme Court, if not friendly, has been at least quiescent. There has been no major decision on libel, confidentiality, or newsgathering in the past five years. This generation is now startled to find that its newsgathering practices, while they often hype ratings, are vulnerable to legal attack. The struggle has not yet reached the Supreme Court. It is being waged at the civil trial level, where the press, usually so remote from the public, is subjected to unfriendly scrutiny of the ordinary - and extraordinary - people who turn up in jury pools.

Some media commentators depict these jurors as the public's avenging angels, fed up and out of control. Verdicts might be easier to explain away if that were true. Yet it is hard to see vengeance in the comments of the jurors of the Food Lion trial. With one exception, they viewed the damages they imposed as a mere reprimand, a mild enough punishment for engaging in gratuitous deception. The widespread comment in letters to newspaper editors has centered on the same issue - whether news media can disregard the law, can engage in actions forbidden to ordinary citizens or even the police.

Far from spinning the recent decisions as unfair, misguided, or the result of legal trickery, as so many TV producers and network executives did almost as a reflex action, it may be time to take the public's message seriously. One way to react to these decisions is to ask whether too much of investigative journalism on television, whether intended to serve the public or lift ratings (and thus increase profits), is too often brittle, showy, and mean-spirited - besides dancing along the edge of the law. In Minneapolis, it appeared, the problem was glitz - overbilling what the exposés of Northwest Airlines could actually deliver. (The news council, in fact, had a separate vote condemning the promos for the series.) In Miami, 20/20 ultimately seemed to aim more at the destruction of one man's reputation than at its ostensible goal of protecting investors. And the Food Lion story, with its espionage-like technology, may have called more attention to its means than to its substance.

It is possible to look at public-opinion polls and conclude that journalism is no worse thought of than many other occupations. But that is probably not good enough for a profession that often claims superiority in truth-telling and ethical standards and condemns the standards of others. And the public belief that journalists exercise high standards has been dwindling through the 1990s; the goodwill and respect are being used up.

Unfortunately, polls are highly inarticulate. What does the public want of journalism? If one looks carefully at the cases anatomized in these pages, it is possible to make a guess. The message of the juries and the news council is not a call for timidity, but for more generous and fair-minded journalism - in particular, television investigative journalism that does not oversell itself, cut legal corners, or indulge in overkill. Such investigative journalism can still be strong while gradually helping - or so one can hope - to restore public confidence in the press.

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