New York Law Journal
                           Communications and Media
                                     Friday, December 3, 1999

                    Shooting the Messenger Isn’t So Easy
                                    By James C. Goodale

          It is not so easy to shoot the messenger who brings unwelcome news these days.

Take the case of Food Lion v. ABC, which ABC recently won.

          ABC initially broadcast that Food Lion doctored its chicken, mixed old

hamburger with new and generally engaged in unsanitary practices.

          Several ABC employees, who were hired by Food Lion, lied on their employment

forms and secretly taped Food Lion in areas not open to the public. Food Lion sued

ABC, principally for resumé fraud and trespass, but not for libel.

          Why not for libel? Mainly because the story was substantially true. Libel is only

available for false statements. Food Lion attempted an end run around the libel laws and


          At first, however, it won. A jury awarded Food Lion $5.5 million, plus change, in

damages. Why? Because it wanted to punish ABC for its news-gathering methods even

though the story was substantially true.

          The trial judge, however, thought the $5.5 million was excessive for making out a

false job application and being in parts of the store where the public is not allowed.

Accordingly, he reduced the verdict to $316,402.

          One of the $2 was for the trespass, which was all the jury thought it was worth.

The other dollar was for “breach of loyalty” to Food Lion as an employer (one cannot

serve two masters, i.e., both ABC and Food Lion). Of the rest, $1,400 was to compensate

Food Lion for its administrative expenses in connection with the resumé fraud and

$350,000 was to punish ABC to deter it from committing resumé fraud again.

          Even so, $350,000 seems excessive for filling out a resumé falsely. Suppose, for

example, there had been no broadcast by ABC, could anyone with a straight face say that

ABC should pay $350,000 just because its reporters filled out false employment


          On October 20, one of the most conservative courts in the country, the Fourth

Circuit Court of Appeals (Virginia, D.C., North Carolina, South Carolina and West

Virginia), cut the verdict to $2. Two dollars in a major case that provoked criticism of

the press and more than a little hand-wringing within the press itself, as well as by some

of its lawyers.

                                   ELEMENT OF FRAUD
          Effectively, the appellate court reasoned the resumé fraud and the trespass didn’t

amount to a hill of beans. As to the first, the court concluded since Food Lion could fire

any of its employees any time for any reason, it was in no position to complain about the

expense of replacing employees who came to work under false pretenses, especially in

the high-turnover food service industry. The court made it clear that Food Lion could not

have relied on the employees’ statements, an essential element of fraud.

          That meant Food Lion could not keep the $351,400 it won at the trial court for

resumé fraud. And so that left Food Lion with $2 for trespass and breach of loyalty,

which the appellate court left in place.

          The court took great pains to make clear that it was not going to tolerate suits that

were libel suits in disguise. Food Lion maintained the broadcast damaged its reputation

and that it wanted damages from the broadcast; but the Fourth Circuit was adamant that it

would not consider the broadcast in assessing damages. In short, Food Lion could not

end-run the libel laws.

                                    TRASH TORT SUITS
          Food Lion is not the only entity trying to circumvent the libel laws. In the last

decade, such suits have been brought under every possible name, such as “intentional

infliction of emotional distress,” “stalking”, “intrusion upon seclusion,” “conspiracy” and

even “inducing breach of contract.” Media lawyers refer to these suits as “trash tort


          The current movie, “The Insider”, describes the inside corporate politics of

deciding to broadcast a story on “60 Minutes” as to why tobacco is overloaded with

nicotine. Because the story’s source is under contract not to disclose such information,

legal advice was initially given not to broadcast the story because such a broadcast would

“induce a breach of contract.”

          When Mike Wallace, the correspondent on the story, heard the story was not

going forward because of “inducing breach of contract,” he said he had “never heard of it

before.” Neither had anyone else – except those lawyers who were familiar with trash


          Trash tort lawyers attempt to end run these laws by attacking how a story is

gathered (news-gathering) rather than what is published or broadcast, and then they try to

get damages for the broadcast. The reason an end run is necessary is because since 1963,

when the Supreme Court decided Sullivan v. The New York Times, the Court has made it

extraordinarily difficult to win libel suits against the press because of its view of the First


                                        HIGH HURDLE
          In order for entities such as Food Lion to win libel suits against the press, they

must jump an extraordinarily high hurdle posed by the First Amendment. It requires not

only showing a story is false but also that the media defendant knew it was false or

entertained serious doubts as to whether it was true or false.

          Food Lion, even though it wanted damages for the broadcast, admitted readily in

court that it could not meet this standard. Presumably this was because there was no way

for it to rebut the material on ABC’s tapes.

          The only way for Food Lion to win, accordingly, was to find or to create a way

around the protections the Supreme Court has given the press. But even the conservative

Fourth Circuit would not permit this. After all was said and done, it gave Food Lion only

$2 for its effort; proving it is not easy to shoot the messenger.

James C. Goodale, a Debevoise & Plimpton lawyer, is the former vice chairman of The

New York Times.


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