FOOD LION, INC. v. AMERICAN BROADCASTING CO. (ABC) 194 F. 3d 505 (4th Cir. 1999)

For the purpose of filming material for the ABC television network's Prime Time Live program, two reporters obtained jobs at a Food Lion store by misrepresenting their mission. Using concealed cameras, they obtained damaging footage of food handling and storage conditions. Food Lion sued unsuccessfully to bar the broadcast, and later sought large damages for lost business and consumer confidence.

Food Lion advanced two claims—that ABC personnel had breached a duty of loyalty owed to an employer, and that ABC had engaged in unfair and deceptive trade practices—including the alleged fabrication of conditions shown in the film. A federal judge held that such claims were not barred by the first amendment, even as applied to gathering and disseminating truthful information that held obvious public interest.

A jury awarded Food Lion more than $3 million in damages. The judge sharply reduced the award, to $315,000. ABC appealed even that smaller damage amount on freedom of speech and freedom of the press grounds.

In late October 1999, a panel of the U.S. Court of Appeals for the Fourth Circuit reduced the damage award to a nominal $2, ruling that Food Lion's tort-based claims represented a constitutionally forbidden "end run" around First Amendment protections for the news-gathering activities of journalists. The absence of any libel claims, or any showing that the camera crew's conduct had been unlawful, undoubtedly made such a judgment easier for the court of appeals.

Robert M. O'N eil
(2000)

(see also: Journalistic Practices, Tort Liability, and the Freedom of the Press.)