WASHINGTON -- Believing that they are living up to the crusading tradition of Nellie Bly, but finding that the legal risks of doing so resemble the "Perils of Pauline," America's journalists who work undercover have come upon uncertain, even threatening, times.
Like Bly, the New York World reporter in the late 19th century who pretended to be insane so she could get the inside story about abuses in asylums, today's scandal-pursuing journalists sometimes use deception to investigate stories that otherwise could be out of their reach.
And, like the movie character Pauline, in Pathe Studios' memorable 1914 serial, who inevitably was rescued from misadventure at the very last minute, today's risk-takers in journalism regularly depend upon the Constitution's First Amendment to save them from legal woe.
The problem is that the journalists who now find themselves tied to figurative railroad tracks with a menacing lawsuit bearing down upon them cannot be so sure of rescue.
The First Amendment may arrive on the scene late, and sometimes may simply not be a savior at all. This is a fairly recent development, and it has made the news industry -- and its lawyers -- deeply fretful.
The latest to experience that peril is ABC-TV. It obtained only part of what it had hoped from the First Amendment after years of waiting to be rescued from a very expensive lawsuit filed against it by the supermarket giant Food Lion.
What happened to ABC, and is happening to journalism in general, is simple: Although the Supreme Court in 1964 gave the press a sturdy First Amendment shield against lawsuits challenging media stories, in 1991 the court created an option for lawyers to bypass the constitutional shield and sue the media.
The 1964 ruling, New York Times vs. Sullivan, for the first time laid down constitutional rules to govern libel lawsuits. In order to win such a case against a newspaper, magazine or broadcast outlet, the court said, the individual suing would have to prove the story was false, and that it was published or broadcast without caring whether it was true or false.
The case stemmed from a lawsuit against the New York Times by L.B. Sullivan, a city commissioner in Montgomery, Ala. Sullivan sued the Times for printing an advertisement placed by a group of black clergymen, criticizing local police for violence against civil rights demonstrators. Sullivan won a verdict of $500,000 but the Supreme Court unanimously overturned it.
That First Amendment shield later was applied to lawsuits against the press not involving claims of libel, such as claimed invasions of privacy or infliction of emotional harm.
But, in 1991, 27 years after the Sullivan decision, the Supreme Court split 5-4 in opening a loophole for some lawsuits against the press. If a state law applies to everyone, and does not single out the media for punishment, the First Amendment will not shield the media for breaking such a law,the court ruled in the case of Cohen vs. Cowles Media. The tough Times vs. Sullivan standard did not apply in that situation, the majority said.
That case involved a jury verdict of $200,000 against two Minnesota newspapers for violating a state law against breaking a promise in a business deal. A Minnesota political consultant sued the newspapers for violating that law by publishing his identity after reporters had promised to keep it a secret, to protect him as a source.
"Minnesota law simply requires those making promises to keep them," the court said in rejecting the newspapers' First Amendment claim.
Lawyers for individuals or companies who believe they have been harmed by undercover media operations have taken the hint from that 1991 ruling: Find some state law that the media may have violated -- trespass, for example -- and rely upon that. Because such laws apply to everyone, the media receive no First Amendment protection when it violates them.
Thus, lawsuits increasingly aim at the news-gathering technique, not at the story that resulted; the story itself is shielded by the First Amendment, and very tough standards of proof must be met to satisfy that amendment's free-press clause.
The predictable result of this new tactic: burgeoning legal troubles for the media, and especially for those journalists who use deceptive news-gathering tactics.
Undercover journalists are more likely to be targeted by lawsuits, keyed to that 1991 decision, because they risk breaking laws by using deception. Moreover, the use of deception to get stories has become more common -- considerably more so than in Nellie Bly's day.
Change in attitudes
Technology has made cameras and recording devices ever smaller, making it easier to hide those devices in a reporter's clothing or hair. Journalists' attitudes, too, have changed. The urge to use "spy cam journalism" is stronger, especially in the hotly competitive environment of the "24-hour news cycle" with cable networks acting as aggressive rivals to the more traditional broadcast outlets.
A major player in this new environment is ABC-TV's news division. An active practitioner of the arts of hidden camera and faked identity, ABC News has gotten into legal trouble more often with those news-gathering techniques than any other news organization. The technique is a staple of programs on ABC's "Prime Time Live."
That approach to news gathering is not universally practiced in American journalism. In fact, it makes many journalists uncomfortable. But most of those in the news business would rather debate it as an ethical matter than leave it to the lawyers and courts to make hard-and-fast judgments -- backed up with the possibility of huge jury verdicts.
Even when the media ultimately win in court, or face at most a small verdict, they still have paid a hefty price. Lawyers who work in this field seldom do so for less than $300 an hour, and a lawsuit over media deception is a voracious consumer of lawyers' time.
Imagine paying a lawyer at those rates to debate such issues as whether crusading novelist Upton Sinclair actually got a job in a meatpacking plant, or merely pretended to do so, to gather information for his exposure of scandals in the Chicago stockyards early in this century. (The resulting novel was "The Jungle.")
'Vital public interest'
One of the news business' leading ethical advisers, Robert M. Steele of the Poynter Institute for Media Studies in St. Petersburg, Fla., argues that deception should be used only to obtain information "of profound importance."
"It must be of vital public interest, such as revealing great 'system failure' at the top levels, or it must prevent profound harm to individuals," Steele contends. Moreover, he adds, it should be used only if all other alternatives have been tried.
Steele is even more cautious in cases where such deception results in breaking a law. That should be done, he argues, only "in the rarest of cases," and everyone involved in such actions "must seriously weigh the consequences and be ready to accept them."
No news organization has had its use of deception more thoroughly analyzed -- within and outside the business -- than ABC News. And it has been a public airing, prolonged by the legal marathon with Food Lion.
Next month, it will be seven years since ABC broadcast, on "Prime Time Live," a program titled "Food Lion." It accused Food Lion of unsanitary food handling practices. The grocery giant filed its lawsuit before the broadcast went on the air.
Two ABC News reporters got themselves hired, with fake resumes, to work in the meat departments of Food Lion stores in North and South Carolina. The network was reacting to tips, from a labor union and Food Lion workers, about sloppy and risky food handling.
The two reporters acted like ordinary bottom-scale employees -- but they wore hidden cameras and recorders and gathered 26 videotapes about Food Lion operations. Two camera crew members who visited them at the stores made eight additional videotapes.
The lawsuit that Food Lion filed in September 1992 has been monumental from the start: At one point, the chain was asking for $2.5 billion in damages.
Other media organizations have been sued for undercover journalism. But the Food Lion case was the first to pit a powerful media company against a powerful business corporation -- each fully capable of paying legions of lawyers from major firms and thus assuring a legal battle royal.
At one point, ABC did face a sizable verdict: At the end of the trial, the jury awarded Food Lion $5,545,750. The jury foreman, Gregory Mack, said: "The media has a right to bring the news, but they have to watch what they do. It's like a football game. There are boundaries, and you have to make sure you don't go outside the boundaries."
That hefty verdict was cut by the trial judge to $315,000, and, after an Oct. 20 decision by a federal appeals court, Food Lion stands to receive only $2 -- if there is no further appeal favoring the chain.
Whatever its final outcome, the lawsuit has deeply alarmed the media. Bruce W. Sanford, a Washington media lawyer, has called it "one of the most pernicious attacks in recent years on the public's First Amendment right to receive truthful information."
The two sides are still disputing whether the program was a truthful or a false portrayal of unsanitary food handling practices. The lawsuit did not settle that issue. Food Lion recently gained some solace on that score, when a federal appeals court -- in a case involving a side issue to the dispute between ABC News and Food Lion -- cast some doubt on the ABC charges. The appeals court found no evidence of "widespread unsanitary conditions" that Food Lion knew about.
No claim of libel
But Food Lion had never made the truth or falsity of the broadcast the centerpiece of its lawsuit. It accused ABC of fraud, trespass, "breach of loyalty" by employees and deceptive business practices. There was no claim of libel for the story itself, because Food Lion's lawyers did not believe they could satisfy First Amendment rules for such a claim.
In a ruling this month, the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled that ABC did not commit fraud or business deception. That was a ruling based solely on state laws of North and South Carolina and gave ABC no protection beyond those states.
The court did rule, though, that the network's two reporters broke state laws against trespass and breach of loyalty -- and upheld jury verdicts of $1 apiece on those claims. It turned aside ABC's claim that those laws had never been applied to undercover news gathering and should not be now.
Most significantly, the appeals court ruled that the network was entitled to no First Amendment protection against those violations -- an outcome that might come back to haunt the media in another case of undercover news gathering.
Citing the 1991 Supreme Court ruling, the appeals court said those violations by the ABC reporters "fit neatly into that framework."
ABC was rescued by the First Amendment in only one way. Food Lion wanted to collect damages beyond what the jury had awarded on a claim that the broadcast had led to a loss of the public's good will and loss of sales at its stores.
That claim, the appeals court said, was "an end-run around the First Amendment." If Food Lion traces its claim of harm to the story, the court added, it must get past the First Amendment shield for the media, and Food Lion had already shown it could not do that.
Lyle Denniston covers legal issues and the U.S. Supreme Court for The Sun.