ESTABLISHING CONSTITUTIONAL MALICE FOR DEFAMATION AND PRIVACY/FALSE LIGHT CLAIMS WHEN HIDDEN CAMERAS AND DECEPTION ARE USED BY THE NEWSGATHERER
PDF: elr.lls.edu/issues/v22-issue2/johnson.pdf (115 page PDF, 673KB)
Loyola of Los Angeles Entertainment Law Review
*327 ESTABLISHING CONSTITUTIONAL MALICE FOR DEFAMATION AND PRIVACY/FALSE LIGHT CLAIMS WHEN HIDDEN CAMERAS AND DECEPTION ARE USED BY THE NEWSGATHERER
David A. Elder, [FNa1]
Brian A. Rishwain [FNaaa1]
|Copyright © 2002 Loyola of Los Angeles Entertainment Law Review; David A. Elder,
Neville L. Johnson, Brian A. Rishwain
|“There is a photographer in every bush, going about like a roaring lion seeking whom he may devour.” [FN1]
“What is slander? A verdict of ‘guilty’ pronounced in the absence of the accused, with closed doors, without defence or appeal, by an interested and prejudiced judge.” [FN2]
“Liars are persuaded by their own excuses to a degree that seems incredible to others.” [FN3]
*328 “He [the undercover hidden camera reporter] enters multiple premises under false pretenses, but the only information he will publish is that known to be harmful to the plaintiff. That information, moreover, will be published in a form calculated to score a knockout blow. Any story that vindicates the plaintiff’s practices ends up on the cutting room floor. The plaintiff, therefore, wants to exclude this party because her expected utility from his entry is always negative.” [FN4]
In the last two decades network television newsmagazines in an endless search for ratings, which translates into revenues, have declared war on the right of privacy we all enjoy as Americans. [FN5] The hidden camera *329 is “infotainment” [FN6] masquerading as journalism, Christians versus Lions journalism, The Truman Show, [FN7] EdTV [FN8] come to life, pandering to the most base emotions, including voyeurism, with eavesdropping used to obtain the salacious footage. [FN9] The common ingredients of a newsmagazine show are: *330 “features” (i.e., stories with stars), late-breaking news, and “investigative pieces” with hidden cameras because they are cheap and easy to produce, especially when there is no need to get the victim’s point of view. [FN10] Numerous commentators have written on the iniquities of the hidden camera and generally ridiculed this technique. [FN11]
*331 The era of television newsmagazines began in the early 1970’s with the creation of “60 Minutes,” which ultimately became a cash cow for CBS. [FN12] News at the networks had never been considered or required to be a moneymaker, but now these shows have “become the preeminent profit engine for network television.” [FN13] In 1989, the newsmagazine “PrimeTime Live” premiered on ABC, and in the show’s second year, the hidden camera became almost a weekly feature in its stories. [FN14] One ABC News executive observed, “[t]here are only so many stories out there and everyone is mining the same territory, so sometimes you end up going to another level of stories that you wouldn’t otherwise look to.” [FN15] No other *332 television show has used the hidden camera as much as ABC’s “PrimeTime Live,” nor has any other show been so seriously sanctioned for unlawful conduct relating to their use. [FN16] Indeed, the two most important cases in the modern history of the hidden camera, where liability was established, involve stunning defeats of this show: Food Lion v. Capital Cities/ABC, Inc., [FN17] where a nominal judgment for a corporate plaintiff [FN18] was upheld on grounds of trespass and breach of fiduciary duty, and Sanders v. ABC, Inc., [FN19] where a substantial judgment was affirmed in favor of an employee *334 taped surreptitiously in the work place. As a result of these cases, the landscape in America has been permanently altered and journalists must be extremely wary of engaging in anti-social conduct. [FN20]
Based on the authors’ experience, hidden camera cases come in differing varieties, but some features are constant. The methodology is usually never explained to the viewer. The “gold” television stations want is the hidden camera footage. There is usually no investigative show without it; rather the need for hidden camera footage drives the creation of the story–not the other way around. Usually the company doing the spying neither shows the footage to the subjects of the hidden camera nor *335 gives any opportunity to comment. [FN21] It is as unfair an investigation as can *336 be concocted. Not only is it unfair to the victims of the hidden camera, but also to the public overall, who receive a distorted view because they are not informed that crimes and torts were committed to gather the smear. By virtue of the use of hidden cameras, the media necessarily denies the public an unbiased report.
A hidden camera story is essentially a “grainy little morality play,” [FN22] edited to heighten the entertainment value, where journalists go undercover to mythologize their work by becoming protagonists, modern “folk heroes” who ferret out wrongdoing as the superheroes of pop culture. [FN23] The *337 investigative journalist is always the hero of any story, and there is always a bad guy/villain. [FN24] Accordingly, it is high drama when the bad guy is actually captured on camera and exposed. We usually see “gotcha” interviews, surprise “attacks” by the journalist upon the unsuspecting alleged miscreant in which they are asked to confess or explain their supposed wrongful conduct. [FN25]
As the plaintiffs’ success in Shulman v. Group W Productions, Inc. [FN26] and Sanders, [FN27] aptly evidence, courts are willing to protect–and vigorously–individual plaintiffs from intrusions upon protected spheres of privacy, whether locational [FN28] or non-locational. [FN29] Undoubtedly, the most insidious and frightening intrusion cases involve an expectation of privacy, with spies working in conjunction with an enemy or competitor of the victim to set up the fraud. A good example is Food Lion, where a union antagonist (with indirect support from union-organized food market competitors) cooperated closely with “PrimeTime Live” in a fraudulent *338 “employee” hidden camera “sting” operation with incredibly damaging results. [FN30]
In addition to intrusion and/or statutory privacy claims (or in the case of business entities, non-privacy claims [FN31]), this Article contends that hidden cameras portray individuals in both a defamatory manner and in a false light–by definition and by design. As the discussion hereafter demonstrates, courts should treat these hidden camera stories as presumptively false and made with constitutional malice–a standard required for all public persons [FN32] (and in false light claims by private persons in many jurisdictions [FN33]) as a threshold precondition for receiving actual, presumed and punitive damages. [FN34] Precedent, common sense, fairness and an awareness of the Supreme Court jurisprudence balancing competing interests in reputation and free expression support such a result.
As a preface to the constitutional malice discussion, Part II provides a brief overview and offers some cautionary comments about media defendants’ legal and tactical strategies. Part III then presents an overview of hidden camera methodology and motivation, illustrating the corrosive and corrupting influences hidden cameras have had on American television and journalistic integrity. Part IV provides a specific, detailed analysis of the issues not litigated in Food Lion. Part V examines in detail the precedent supporting this Article’s thesis: constitutional malice should be easy to prove in hidden camera cases–indeed, it should be presumed. Lastly, Part VI draws some conclusions and suggests how this thesis fits well within, and in fact enhances the “marketplace of ideas” function of the First Amendment.
II. The Constitutional Framework
A. An Overview
The exacting scienter requirement of New York Times Co. v. Sullivan [FN35]–knowing or reckless disregard of falsity–in hand with its heightened evidentiary standard–“convincing clarity” [FN36]/”clear and *339 convincing” [FN37] evidence–(the “New York Times standard”) are “widely perceived as essentially protective of press freedoms” [FN38] imposing on the public plaintiffs subject thereto an “undoubtedly . . . very difficult and demanding” [FN39] or “formidable barrier” [FN40] as a constitutional condition to liability and damages–actual, [FN41] presumed, [FN42] and punitive. [FN43] However, plaintiffs trying to meet these standards in a libel or false light privacy case need to be cautious and not allow defendants to map out the terrain of battle and muddy the waters in a fashion that needlessly enhances the already exalted standards confronting the plaintiff.
B. Special Considerations for Litigation
A series of cautionary considerations should be noted. First, plaintiffs must be wary, both at trial and on appeal, of defendants’ divide and conqueror strategy to constitutional malice, i.e., trying to focus both the court’s and jury’s [FN44] attention on purportedly discrete, severable and *340 unrelated items of evidence. Occasionally, courts have followed the media’s proffered approach–unaware of the Supreme Court-sanctioned perspective [FN45]–with very skewed, head-scratching results. [FN46] However, the law is clear. The First Amendment imposes no restrictions on the types of evidence admissible to prove constitutional malice, with the Court repeatedly affirming the utilization of circumstantial evidence in proving this “critical element.” [FN47] Indeed, the Court and lower state or federal courts [FN48] have undoubtedly recognized that such evidence is essential considering that “it would . . . be rare for a defendant . . . to admit to having had serious, unresolved doubts . . . .” [FN49] Requiring proof of recklessness *341 “without being able to adduce proof of the underlying facts from which a jury could infer recklessness . . . . would limit successful suits to those cases in which there is direct proof by a party’s admission of the ultimate fact.” [FN50]
Furthermore, the cases expressly recognize that the New York Times standard by definition “encompasses innumerable subtleties of the defendant’s mind set and conduct, [and] is exceedingly difficult to apply to the varying circumstances of each case.” [FN51] Accordingly, the basic theme is that followed by the great volume of case law, [FN52] i.e., that the “varying circumstances, taken as a whole, must provide reasons to question the truth of [the defendant’s] publication.” [FN53] In fact, in most cases no single factor is determinative [FN54] and the plaintiff logically endeavors to construct “a collage of pieces of evidence,” [FN55] what one decision has termed a “grab-bag of circumstantial evidence,” [FN56] collectively pointing toward constitutional malice. One oft-cited opinion has made this point powerfully in its discussion and approval of an instruction that the jury consider all the evidence appertaining to the defendants’ actions and conduct: “There is no doubt that evidence of negligence, of motive and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendant’s recklessness or of his knowledge of falsity.” [FN57]
*342 Other decisions parallel this approach, emphasizing that constitutional malice is determined from assessing the “totality” of the defendant’s “choices” [FN58] and that the plaintiff is “entitled to an aggregate consideration of all these claims.” [FN59] The Supreme Court itself has recently reflected this attitude in making its required independent review, concluding “the evidence in this record in this case, when reviewed in its entirety, is ‘unmistakably’ sufficient to support a finding of actual malice.” [FN60] This broad all-factors/all-evidence approach is peculiarly appropriate in hidden-camera cases, where a news agency plays agent provocateur and does not just report a story after it has transpired, but literally generates it and carries it out to completion as if it is a spying mission– manufactured “news.” Unlike the typical defamation case, the participants in these “news” events are usually employees, independent contractors, or interns of the news organization. The media is thus covering itself and is going to make itself look good to the viewer.
Second, as a result of this broad approach to constitutional malice, the pivotal issue would be “the credibility of the reporter or publisher in the context of the surrounding facts and circumstances.” [FN61] The logical corollary of this, particularly as to hidden cameras with their inherently suspect, [FN62] creative, self-interested, self-reporting and self- justifying attributes, is to treat reporters, producers, and editors as interested parties that the jury may deem “not credible and disbelieve,” [FN63] a function entrusted to them by the Supreme Court. [FN64] As one court has said, “We accept the jury’s finding as to disputed facts when there is supporting evidence because we claim no superior ability to divine the truth by reason of judicial office, and we question the good judgment of any judge who thinks he has such special powers.” [FN65]
Undoubtedly, hidden-camera cases with the inherent hazards therein, including the defendant’s propensity for self-justifying selective editing, mandate that a jury assess both actions and inactions and motivation. Indeed, courts have frankly recognized that constitutional malice may be *343 predicated on “the fact-finder’s negative assessment of the speaker’s credibility at trial.” [FN66] Consider, for example, the recent Third Circuit case, where the court remanded for trial the issue of whether the defendant-attorney published a defamation in the face of a complaint served on and received by him. [FN67] In responding to the defendant’s contention that there could be no constitutional malice as he did not read the complaint before speaking, the court replied:
[A] reasonable jury could believe that a person who is added as a defendant in a multi-million dollar lawsuit is very likely to read the complaint shortly after receiving it in order to see why he or she has been sued. A reasonable jury could disbelieve [defendant’s] story and find by clear and convincing evidence that [defendant] did read the First Amended Complaint before the interview. [FN68] In other words, the Third Circuit has decided that a jury’s conclusion that the defendant lied as to receipt of contradictory information could alone sustain a constitutional malice finding. The Ninth Circuit has similarly found that “[t]he editors’ statements of their subjective intention are matters of credibility for a jury.” [FN69]
Third, plaintiff-lawyers should respond unambiguously and unequivocally to any suggestion that special rules for summary judgment are mandated by the First Amendment, i.e., that summary judgment is “favored,” a common bit of posturing by media lawyers. The Supreme Court’s jurisprudence rejects any such special protection. Indeed, the Court has recognized society’s “pervasive and strong interest” [FN70] in protecting reputation and cautioned against “substantial depreciation” thereof “without any convincing assurance that such a sacrifice is required under the First Amendment.” [FN71] The Court has implemented this strongly *344 held view by repeatedly rejecting Due Process and/or First Amendment-based special protections. [FN72] As the Court has repeatedly indicated, [FN73] it has “already declined in other contexts to grant special procedural protections to defendants . . . in addition to the constitutional protections . . . in the substantive laws.” [FN74]
The Supreme Court has also rejected in dicta the suggestion that summary judgment “might well be the rule rather than the exception,” expressing “some doubt about the so-called ‘rule.’ The proof of ‘actual malice’ calls a defendant’s state of mind into question . . . and does not readily lend itself to summary disposition.” [FN75] Later, in Anderson v. Liberty Lobby, Inc., [FN76] the Court characterized this latter acknowledgment as reflective of “our general reluctance” to grant such special procedural protections. [FN77] In adopting the “heightened evidentiary requirements” [FN78] (clear and convincing evidence standard) at the summary judgment stage, the Court took considerable pains to emphasize several things–general requirements of the federal rule must be followed, the jury’s fundamental *345 role must remain intact, and summary trial by affidavit may not be authorized. [FN79] In powerful language the Court reaffirmed:
Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. [FN80] In other words, “[t]he Court expressly repudiated the special and media protective minority view . . . [that suggested] that the trial court should evaluate the credibility of witnesses and make its own inferences from the evidence adduced.” [FN81]
In sum, summary judgment is “favored” only to the extent that there inures in the New York Times standard a difficult substantive burden for the plaintiffs to overcome. The California Supreme Court made this point elegantly in Reader’s Digest Ass’n v. Superior Court: [FN82]
It is pointless to declare in the abstract that summary judgment is a favored or disfavored remedy. A more subtle analysis is required–one that explains how a motion for summary judgment should be decided in a defamation case under the New York Times test. The Fifth Circuit in Rebozo v. Washington Post Co. undertook such an analysis and reached the following conclusion: “[T]he standard of review of First Amendment defamation actions, as in all summary judgment cases, is whether the record, construed in a light most favorable to the party against whom the judgment has been entered, demonstrates there are genuine issues of fact which, if proven, would support a jury verdict for that party. Given, however, a jury verdict in a defamation case can only be supported when the actual malice is shown by clear and convincing evidence, rather than by a preponderance of evidence as in most other cases, the evidence and all the inferences which can reasonably be drawn from it must meet the higher standard.”
We recognize a potential chilling effect from protracted litigation as well as a public interest in resolving defamation cases promptly. That does not mean, however, that a court *346 should grant summary judgment when there is a triable issue of fact as to actual malice. Instead, courts may give effect to these concerns regarding a potential chilling effect by finding no triable issues unless it appears that actual malice may be proved at trial by clear and convincing evidence–i.e., evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment “does not constitute a forbidden intrusion on the field of free expression.” To this extent, therefore, summary judgment remains a “favored” remedy in defamation cases involving the issue of “actual malice” under the New York Times standard. [FN83]
The California Supreme Court in Reader’s Digest approved and adopted the analysis of the Fifth Circuit in Rebozo v. Washington Post Co., [FN84] an analysis which squarely repudiates the view that media defendants receive a second procedural “bonus” in summary judgment practice implicating the constitutional malice standard, and instead forcefully advances the view that the only benefits defendants receive are those embedded in the protective New York Times standard itself. [FN85] Thus, media defendants are not entitled to any special breaks. They are only entitled to the substantive benefits of the New York Times standard. Plaintiffs, in turn, are entitled to have the issue called “straight up.” If there are triable issues of fact regarding the defendants’ (often just the producer of the piece–whose constitutional malice is imputed to the employer, co-defendant [FN86]) state of mind, issues that would place in context one way or another the question of whether a jury could reasonably find knowing or reckless falsity by clear and convincing evidence, the plaintiff is entitled to have the case placed before a jury. Common fairness, the procedural rules, and the Supreme Court have so decreed.
*347 III. The Role of Hidden Cameras
A. Hidden Cameras: A Product of the “Bottom Line” Mentality
Television journalists, at least at the newsroom level, [FN87] decry the dominance of commercial over journalistic consideration in the newsroom, [FN88] feeling they are “caught in a self-defeating spiral” [FN89] from “a heightened, unseemly lust” for great profits [FN90] with a concomitant diminution in quality. [FN91] Why is this? It is all about television *348 newsmagazines, with hidden cameras as the drive-trains, becoming “the preeminent profit engine[s]” [FN92] for network television while needing to compete with each other, cable and a host of non-news programs [FN93] that attract voyeuristic viewers [FN94] with a great affection for “clear, simple stories, *349 with victims and villains, preferably illustrated with eye- catching video” [FN95] using state-of-the-art hidden camera technology. [FN96]
As one distinguished commentator has concluded, “[D]espite wrapping themselves in the cloak of public interest, the contemporary media are profit- driven and altruistic only when the bottom line has been secured.” [FN97] Unfortunately, this “profit center” /”bottom line” /”new era of profit worship” [FN98] mentality, particularly as to the electronic media, [FN99] has *350 resulted in “a ratings-driven descent by the major networks into the swamp of tabloid journalism.” [FN100] In the latter, sensationalism reigns [FN101] and television news is infected by the “climate of make-believe” [FN102] and the desperate demand for hidden camera footage [FN103] with its capacity to jolt ratings. [FN104] Without such, as a critic says, “you ain’t got squat.” [FN105]
*351 The damning [FN106] evidence of the impact of hidden cameras is irrefutable. [FN107] Hidden cameras are most prominent during “sweeps” periods [FN108] so that they can enhance advertising charges and ultimately revenue. [FN109] They are most likely to lead the program. [FN110] The “teasers” hyping the program usually feature the hidden cameras” technology as *352 prominently as the substance [FN111] in order to snare viewers with voyeuristic instincts. The net effect is that many newsroom journalists feel that this commercial mentality has caused journalism to “lose its professional soul” [FN112] and, concomitantly, its editorial independence, [FN113] resulting in an increasing demand for professional standards to immunize newsrooms from such corrosive and corrupting influences. [FN114]
*353 B. The Corrosive and Corrupting Influence of Hidden Cameras
Echoing McLuhanesque sentiments, [FN115] media critics have warned that hidden cameras, instruments journalists would be appalled [FN116] to have turned *354 on themselves, have a tendency to “perpetrate the initial deception” [FN117] by a *355 number of overlapping, dangerous practices. Among them are: “entrapping” persons via “scams or stings” using “staged” scenes [FN118] to *356 confirm a preconceived “bad guy/villain” theme [FN119] on “gotcha” videotapes; [FN120] executing “ambush interviews;” [FN121] sensationalism; [FN122] *357 “muckraking;” [FN123] deceptive or distorted editing; [FN124] innuendo or insinuation; [FN125] and creating a false impression. [FN126] All of these techniques *358 allow the defendant to “declare reality, not to report it,” [FN127] “not . . . a message of truth” but a broadcast media news “message of power and force and image” [FN128] that facilitates a societal self-delusion that “the world is still binary: cops and robbers, cowboys and Indians, good and evil.” [FN129]
Undoubtedly, the most damning and damaging [FN130] is the hidden camera’s creation of “an atmosphere of corruption that insinuates wrongdoing when none has occurred.” [FN131] Both journalistic defenders of hidden cameras (under at least some circumstances [FN132]) and media *359 executives have conceded this undoubted potential. For example, as (now retired) ABC Senior Vice President Dick Wald (who ruled on hidden camera proposals) has said, hidden camera footage per se “tends to make anything seem suspicious.” [FN133] One critic has made the point thusly and powerfully:
Insinuating guilt is easy when you have a hidden camera. Put one of those tiny bug-eye cameras in a suitcase and lug it around at kneecap level in Mother Teresa’s Calcutta mission and the footage will have the inescapable air of corruption and wrongdoing. Hidden cameras produce the video equivalent of the trick question, “So are you still beating your wife?” [FN134] Everyone looks guilty on hidden camera. [FN135]
Likewise, the “‘[a]mbush [i]nterview’ convict[s] by implication alone.” [FN136] Once the tactic of “last resort,” it has become the preferred tactic because it “immediately identifies the bad guy . . . the one saying ‘[n]o comment’ in a parking lot somewhere while he fumbles for his car keys.” [FN137] *360 Why is guilt insinuated? “In a media-mad society where the very presence of a microphone demands that someone Say Something, remaining silent when jumped by a reporter is tantamount to crowing, ‘Not only am I physically unattractive under these lighting conditions, but I’m guilty as hell and I’ll do it again! Hahahaha!” ‘ [FN138]
In sum, hidden cameras convey a defamatory impression and put the target in a false light by definition [FN139] with an appalling impact [FN140] on the stunned deer-in-the-headlight victim. Media defendants know this and are indifferent to it, [FN141] an indicator of the arrogance [FN142] that is an unconscionable corollary of the blurring of the line between entertainment and news, reality and pretense. [FN143] This hidden camera practice has been condemned as dangerous [FN144] and as tantamount to “vigilante justice” with the media as *361 unilateral determiner of guilt [FN145] with the authorities being contacted only after the bottom line–ratings–have been secured. [FN146] The public is horrified by such arrogance [FN147] and the credibility of serious journalism impaired. [FN148] Almost seventy-five percent of the public has condemned hidden camera use. [FN149] But, after a brief hiatus after the Food Lion initial award, [FN150] hidden camera usage seems to be on the rise again after Food Lion’s damages were reduced to a meager two dollars. [FN151] This should not surprise anyone. As media journalist-critic Daniel Schorr, a critic of the television newsmagazines, has asked rhetorically, “[I]n a medium so laden *362 with mendacity, do you think they are really aware of what a lie is?” [FN152]
IV. Food Lion, Inc. v. Capital Cities/ABC, Inc.: [FN153] The Libel Case Not Litigated
Food Lion felt that the November 5, 1992 “PrimeTime Live” program on its allegedly shoddy sanitation and food-handling practices made it “the victim of a televised mugging, in which innocuous practices got blown up into a sizzling scandal.” [FN154] Why then, did it not sue for libel and challenge the truth of the allegations? This point was repeatedly emphasized by ABC [FN155] and “parroted” by many other media defenders [FN156]–i.e., that truth *363 was irrelevant to the challenges to legality of the newsgathering practice used. [FN157] The answer is multifaceted and complex. As any libel plaintiff or lawyer knows, media lawyers engage in Shermanesque attrition tactics that make the march across Georgia look like kindergarten play banter. Cases are rarely settled and are invariably appealed to the court of last resort and tactical maneuvers are used to financially, emotionally, and psychologically exhaust the plaintiff and plaintiff’s counsel–all under the purported panoply of the First Amendment. [FN158] Indeed, media lawyers tout to the public through their mutual support networks how successful they are on appeal in defending libel cases–largely accurately. In sum, libel cases are tough to win, [FN159] although a good trial lawyer with the assistance *364 of a good consultant or the willingness to learn the law will be amazed at how much helpful precedent [FN160] there is and how vulnerable media defendants are, particularly if the plaintiff is able to access the totality of information available to the defendant but ignored or not used by the defendant–a matter that will invariably be vigorously contested by the media defendant.
The libel hurdles, particularly under the exacting [FN161] standards applicable to public persons are, however, only part of the problem. The other is damage control. Typically, by the time of trial, much of the notoriety enveloping a plaintiff has dimmed, life has gone on, albeit impaired, and business or professional life is improving again. Going to trial endangers this, potentially dramatically. Why? The doctrine of “fair report” and the absence of a “disinterestedness” limitation allow both the media defendant sued and the media generally [FN162] to give as much (or as little) coverage as they desire to the libel litigation–in most jurisdictions from the filing of the civil pleadings, [FN163] in others from the time of the first judicial action [FN164] thereon. This is what one co-author has elsewhere denominated the “libel-plaintiff lawyer’s counseling dilemma” [FN165]–the defendant’s or others’ right to revive the defamatory matter and further impair the plaintiff’s reputation, [FN166] sometimes devastatingly.
The spectre of “fair report” was an awesome responsibility for an enraged Food Lion and its highly experienced counsel. One way of limiting to some extent what could be republished in absolutely privileged fashion [FN167] was to attack not the truth of the program, which would make the *365 program the trial focus and likely ensure the synthesized replication of the juiciest parts in the media, but to attack ABC’s newsgathering methodology, which was also an easier case to prove. [FN168] The latter would allow some controls over trial use and jury and press access to the damning, defamatory footage, and any other discovered or otherwise available information ABC might use in defense. Food Lion’s strategy was in large part ultimately successful. [FN169] The jury never saw the program [FN170] but Food Lion’s counsel were able to use some of the damning and arguably misrepresented, slanted, staged, or ignored exculpatory matter and other misconduct at trial in attacking the disloyalty [FN171] of the false *366 “employee” -producers. As one commentator stated, Food Lion shone “a light on the unsanitary practices at “PrimeTime Live” and the producers went from being good-guy crusaders to bad-guy liars” [FN172], with the jury asked to be “the policemen on the media highway.” [FN173]
After assessing the available information further, Food Lion’s lawyers tried to amend their complaint to allege libel counts, an action defendants successfully resisted on statute of limitation grounds [FN174]–a factor ABC [FN175] and its media defenders [FN176] rarely acknowledge, i.e., their aggressive legal maneuvers helped limit the issue to one of the legality of its newsgathering practices. What would have been the result of a libel action (false light-privacy being generally unavailable to business entities [FN177])? One will never know. The facts are in substantial dispute with the interpretation thereof debatable and hotly debated by the two litigants. Maybe a jury would find that the story was substantially true [FN178] or that the plaintiff had not proved *367 the story materially false under the requisite First Amendment [FN179] standard. But, as the analysis below suggests, if the latter standard were surmounted, substantial, perhaps even compelling, evidence existed of constitutional malice under the “aggregate consideration” [FN180] of the all-relevant-factors approach reflected in the case law.
Consider the examples disclosed by media critics separate and apart from, but a natural corollary of, an investigation tainted by its own illegality ab initio. [FN181] First, notice how the defendants were led to the story. The United Food and Commercial Workers Union, a bitter antagonist that had tried to organize Food Lion without success, [FN182] put ABC onto the story and maintained a very close relationship with “PrimeTime Live” throughout its production, [FN183] supplying it with disgruntled employees (six of whom were featured without an explicit disclosure they were all in litigation with Food Lion over union-related issues [FN184]), references *368 (including from competitor supermarkets [FN185]), and training. [FN186] Now why would a union do this? [FN187] Because Food Lion was the fastest growing supermarket in the country and its status jeopardized union jobs in labor-organized supermarkets, [FN188] which had resulted in the union’s asserted threat to organize Food Lion or destroy it [FN189]–something ABC nearly did [FN190] with pride. [FN191]
“PrimeTime Live” producers, both with pro-union biases, [FN192] apparently lapped up this anti-Food Lion stance [FN193] and did a number on Food Lion in a portrayal with a “powerful and . . . devastating” [FN194] impact. *369 From the beginning, and apparently in violation of ABC’s clearly stated policy of only doing hidden camera stories where “less intrusive methods” [FN195] were unavailable (a policy based in part on the concession such footage “reeks a little of the KGB” [FN196]), the producers cast Food Lion as “villain in this morality play,” [FN197] a story “written by Big Labor.” [FN198]
But wasn’t ABC’s motive pristine, i.e., to expose widespread and dangerous unsanitary practices? If so, its exquisitely timed release during the key sweeps week of November 5, six months after completion of the story, is difficult to explain, [FN199] not that it has posed a difficulty for ABC apologists. [FN200] Imagine. A dramatic exposé with public health ramifications, if true, shelved for six months! [FN201] Why? The answer appears clear and incredibly damning. “PrimeTime Live” was not doing well vis- à-vis its competitors in a ratings war and a “universally appealing, titillating piece” [FN202] might “jump-start” it into competitive status vis-à-vis its newsmagazine competitors. [FN203] So the delay was for purely economic *370 reasons, [FN204] the public health be damned [FN205] (if there was any threat at all), surely raising questions as to whether the story was really about widespread practices or the disagreeable but petty behavior of a few rogue employees. And who were the losers? Clearly, Food Lion with massive losses (in stock value, forced closure of stores, derailed expansion [FN206]) not recoverable under the Fourth Circuit’s indefensible limitation on publication damages. [FN207] Clearly, its employees, at least 5,000 of whom lost *371 jobs. [FN208] And probably, the food-buying public in the communities where the eighty-eight closed stores were located, many of them minority communities, who were deprived of Food Lion’s competitively priced food. [FN209]
Dubious origins, an “elaborate chain of lies” [FN210] by the producers to gain insider-employee status (held to be both a breach of loyalty and a trespass), [FN211] economically motivated timing–a dramatic showing? But there is more, much more. Critics have sifted through the records, the documents, the footage, both in the show and unused, and have collectively disparaged the story as giving Food Lion just cause for being “hopping mad.” [FN212] One suggests maybe the conclusion is justified given that ABC “distorted, exaggerated, manipulated its coverage, visual and otherwise.” [FN213] Another has stated that ABC “vigorously disputes the notion that its news is as tainted as Food Lion’s meat.” [FN214]
Consider what the critics have suggested, asking whether what was allegedly done by “PrimeTime Live” to Food Lion is prototypical, indeed, endemic in a medium interested in slick sensationalism, inculpatory footage and the bottom line–crass entertainment thinly veiled as news. [FN215] *372 First, ponder the mildest of the alleged dubious unethical practices. In one scene a producer-“employee” failed to perform her duty as a faithful and dutiful employee to clean a meat grinder, but instead videotaped it for use. [FN216] Another film was taken and used of employees rewrapping poultry, fish, and meat. [FN217] The footage was implicitly inculpatory of fraudulent behavior, but it may have been much less, as it in no way evidenced that the rewrapped goods were spoiled or old. [FN218] Much more sinister was the use of distorted footage indicating a busy manager often ran out of time sans the qualification by the same person that the store always provided the necessary time to do all his work. [FN219]
Even more indicative of the blurring of ethical values were the cited unused instances of “staged” incidents involving attempted “entrapment” [FN220] with non-inculpatory results. Take, for example, the unused footage of attempted coaxing of Food Lion workers regarding spoiled food. [FN221] In one, the employee said he “could feed the dorm at [college] where I live with all the food I throw away.” [FN222] In another, a Food Lion employee was shown complaining of a bad chicken marinade, but later said the store manager told her to discard food anytime it was spoiled and that she did so. [FN223] In a third, an employee was asked to say a manager made them work “off the clock” but the employee refused, saying that such a practice was contrary to store policy. [FN224] The frustrated crew then spoke of setting up a “sting” at *373 a different store. [FN225] Lastly, and arguably very telling, was the co-producer’s response to a Food Lion employee instructing her to throw out a tray of dated chicken after she suggested it go back in the cooler: “Damn.” [FN226]
Fascinating, isn’t it? But the beat goes on. Ever eaten kielbasa, the spicy Polish sausage? Well, kielbasa featured strongly in the videotapes. Mold was found on a package. The package was filmed more than once (once at a producer’s hotel) with careful identification of the product and to ensure the mold was visible. [FN227] And, according to Food Lion, the producer worked late to ensure she had the “opportunity to fraudulently create a news story.” [FN228] Oh, by the way, who were the filmed buyer and seller? The defendant ABC’s co-producers! [FN229] As one tongue-in-cheek commentator mused, “[T]he little-kielbasa-that-couldn’t does tell a story.” [FN230]
Even more stunning were several acts of alleged affirmative employee sabotage. For example, there is footage of: (1) the co-producer putting baking sheets away filthy just following a Food Lion employee’s stacking them to be washed; [FN231] (2) the insertion of the wrong date on turkey parts after being told the correct dates by a Food Lion employee; [FN232] (3) the wrapping of flounder and a three-day sell sticker being placed on them rather than the one-day identifier she was instructed to use; [FN233] and (4) the depiction of spoiled rice pudding removed from a sales area for disposal as being still for sale. [FN234] By contrast, nothing complimentary was said of *374 Food Lion. [FN235]
In sum, it can be argued once damning and selectively usable hidden camera footage was available, the investigative process was “stillborn. The picture was all the perspective and context needed.” [FN236] Indeed, the avenues of inquiry not explored seem inexplicable. It has been suggested no attempt was made to search state or federal safety or health reports [FN237] for complaints or citations for evidence of unsanitary practices. And, of course, no positive mention was made of the state records listing Food Lion as third of eight major supermarket chains in this respect–as above average, in other words. [FN238] This was not done even with the six-month delay, [FN239] providing ample opportunity for producers interested in learning the whole truth. One distinguished commentator has termed this a “surprising fact, in retrospect.” [FN240] Nor did defendants take purchased samples for independent testing, [FN241] the most compelling evidence of public health endangerment. The tepid later response was that Food Lion might have challenged such. [FN242] But that is the point, is it not, in a search for truth? Evidence of contamination, refutatory challenges thereto? Unless, of course, ABC was afraid that such testing and its refutation might *375 whammy its inculpatory footage and its story. Lack of investigation because of sufficient evidence or failure to investigate for fear of what an investigation would disclose that would gut a story? A jury could have been the judge.
Two other glitches were also quite damning of ABC. It nowhere asked (or responded) to the logical inquiry that was implicitly posed by the theme of its story–how could the fastest growing store in the nation have grown so quickly if the practices exhibited in the story were so widespread? [FN243] It also did not explain or justify its failure to provide Food Lion with an opportunity to respond, but rather merely cited that Food Lion gave a written denial. [FN244] It did not disclose the willingness of Food Lion to have its ranking executives provide a detailed background briefing (declined) or Food Lion’s willingness to have its CEO respond to questions if done live or unedited (declined on the ground ABC needed editorial control). [FN245] This was after working with antagonistic employees and an even more antagonistic union for months! [FN246] Justified? Or a calculated way of ensuring that no effective response would be made? [FN247]
*376 In sum, the items presented above individually and collectively may have evidenced constitutional malice, a permissible finding that a television news magazine sought “exclusively . . . evidence to support a story . . . of terrible wrongdoing” [FN248] by Food Lion. Such evidence (if found persuasive by a jury and upheld by the trial and appellate courts, and provided the material falsity requirement was met) would have allowed Food Lion access to the panoply of damages permitted by the Supreme Court once a “calculated falsehood” [FN249] is shown–actual [FN250] (including publication damages), [FN251] presumed, [FN252] and punitive. [FN253] As one commentator has pointed out, this apparently calculated “investment in finding the evidence” was nowhere better exemplified than in the producer’s exclamation when he attempted to capture footage of an uncleaned meat slicer, but a faithful employee was cleaning the machine: “Shit.” [FN254]
*377 V. A Case for Constitutional Malice in Hidden Camera Cases
A. Common Law Malice and Constitutional Malice
Undoubtedly, common law malice does not suffice to prove constitutional malice, [FN255] i.e., the “subjective awareness of probable falsity.” [FN256] However, “reason and the weight of precedent” [FN257] indicate that proof of common law malice supports a finding of constitutional malice when “combined with other, more substantial evidence of a defendant’s bad faith” [FN258] or “other indicia of malice.” [FN259] Although cautioning that courts not allow litigants to “place too much reliance” on this factor, the Supreme Court has concluded that it “cannot be said that evidence concerning motive . . . never bears any relation to the actual malice inquiry.” [FN260]
A number of decisions have analyzed why common law malice in its many variants provides such supporting evidence. [FN261] Common law malice may explain what made a defendant: “disregard the most rudimentary precautions before publishing;” [FN262] reinforce the inference that a reporter recklessly disregarded the truth; [FN263] provide insight into why every one of a defendant’s employees in a position to influence content “treated the question of truth or falsity as a matter of total indifference;” [FN264] evidence what influenced a defendant’s assessment of likely falsity; help prove that a defendant published in spite of its own determination of probable falsity; [FN265] evince “a state of mind highly-susceptible to the entertainment of serious doubts concerning probable falsity;” [FN266] indicate why a defendant was “not *378 in the least concerned . . . with the true facts;” [FN267] demonstrate “an atmosphere infected with a disposition to ignore” knowing or reckless falsity; [FN268] “provide a motive for defaming someone or explain apparently illogical leaps to unsupported conclusions;” [FN269] explain a defendant’s failure to peruse or listen to sources of information in its possession; [FN270] indicate what may have precipitated a defendant to participate in “a stretching of standards;” [FN271] or support a finding of bad faith and disinclination to the truth. [FN272]
Ill will or one of its multiple variants is a typical, relevant factor in support of a constitutional malice finding, particularly when accompanied by criminal and/or tortious misconduct by the defaming person or entity. [FN273] It relates to an intent to act anti-socially and is antithetical to the fact-finding, truth-seeking function of a journalist and evidences a predisposition to both gather and report information in an intellectually dishonest manner. This is peculiarly well-illustrated where a journalist’s motivation makes him co-participant-co-creator of the story, the norm in hidden camera stories. [FN274] Hidden camera investigative reporting is not some dispassionate journalistic endeavor objectively covering third persons, but is often times a calculated “sting” where the “stingors” are employees and agents of the “journalists.” [FN275] The persons “covered” in the story are one and the same as the “journalists,” i.e., agents provocateurs *379 (and provocateuses), [FN276] surely not a good sign of impartiality.
Is such ill will relevant, probative evidence of constitutional malice? In Herbert v. Lando, [FN277] the Supreme Court unequivocally affirmed its viability and admissibility, concluding that the demanding New York Times standard and focus on “conduct and state of mind of the defendant” did not “suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action.” [FN278] Among other evidence, the Court cited the defendant’s “motives in publishing the story.” [FN279]
A recent example of the importance of evidence of ill will and animosity where the defendant’s motive made it a participant-co-creator of the underlying story is Celle v. Filipino Reporter Enterprises, Inc., [FN280] where the court found substantial evidence of constitutional malice from the defendant’s ill will in publishing defamatory articles motivated by the plaintiff’s earlier articles detailing a criminal conviction of the defendant- editor’s daughter, in which the defendant thought that the plaintiff magnified the severity of the conviction. [FN281] In the court’s view, “[a] reasonable juror–considering the ill will, and the factual similarity between the basis for that ill will and the publication of the challenged statement here–could conclude that [the defendant-editor] was imposing in-kind retribution on [the plaintiff] by exaggerating the status of the legal proceedings against him.” [FN282]
Another example of a defendant’s employee’s ill motivation as antagonist- participant in creating a distorted, one-sided story is Ball v. E.W. Scripps Co. [FN283] There, the defendant-newspaper’s pattern of “bias [and] hostility” toward the plaintiff-commonwealth attorney-prosecutor led the reporter to engage in a series of unethical practices reflecting a calculated attempt to build a case of prosecutorial incompetence. [FN284] When he found court records supporting his slant, the reporter noted “good case” on them. [FN285] Among other derelictions, he interviewed only parties hostile to the plaintiff, deliberately avoiding those who could contradict the *380 sources selected. [FN286] He constructed a misleading statistical comparison of adjacent counties’ handling of persistent felony offender counts, while admitting to his editor that the comparison was deceptive because the two prosecutors handled the cases quite differently. [FN287] In essence, he manufactured “junk science,” aptly illustrating the old adage that “figures don’t lie but liars do figure.”
B. A Preconceived Slant and/or Story Line is Probative of Constitutional Malice
In Harte-Hanks Communications. Inc. v. Connaughton, [FN288] the Supreme Court expressly recognized that motive, while not sufficient for constitutional actual malice, is “supportive,” probative, and admissible evidence thereof. [FN289] This supportive evidentiary posture is well-illustrated by the Court’s own discussion of the defendant’s earlier, non-defamatory editorial on October 30 as “set[ting] the stage” for the later defamatory *381 article on November 1 [FN290] made with constitutional malice. The earlier editorial predicted “‘[a] lot could still happen” ‘ in the brief time before the election, opined that the race was still competitive, and then quoted an unidentified voter as resentful of voting for a person “who I later find has been deceitful or dishonest in campaigning.” [FN291] The Court noted that this “concern” was one “the then-uninvestigated and unwritten November 1 story would soon engender.” [FN292] In an extremely important discussion of the significance of such preconceived objectives or story line, the Court said:
Significantly, this editorial appeared before [the plaintiff] or any of the other witnesses were interviewed. Its prediction that further information concerning the integrity of the candidates might surface in the last few days of the campaign can be taken to indicate that [the editor] had already decided to publish [the source’s] allegations, regardless of how the evidence developed and regardless of whether or not [the source’s] story was credible upon ultimate reflection. [FN293]
An excellent recent example of evidence of a preconceived viewpoint as relevant to proving constitutional malice involved a situation where an electronic message was forwarded by the reporter to the original source of the tip (his “good friend,” the head of the election campaign), “promising a ‘wiseass article for Tuesday’ about the private investigator issue” (the plaintiff was the defamed “investigator”). [FN294] The court concluded that this communiqué “supports an inference that [the reporter’s] motives in writing the articles were at least as political as they were journalistic.” [FN295] A substantial number of precedents likewise find supportive evidence of constitutional malice in either a preconceived determination to discredit or disparage a plaintiff or in a preconceived slant or view. [FN296] Thus, evidence *382 has been held probative of constitutional malice in cases involving: an overall “predetermined and preconceived plan” to portray a candidate as unfit for the presidency; [FN297] earlier constitutionally protected coverage which reflected only one side of a controversy; [FN298] participation in “a scheme or plan . . . to employ grossly exaggerated and patently untrue assertions” primarily in headlines to destroy a gubernatorial candidate’s character; [FN299] prior constitutionally protected articles or editorials reflective of a predisposition to “get” the plaintiff-commonwealth attorney; [FN300] a letter to the editor during the “heat” of a campaign to discredit a candidate done with a calculated assessment to influence voting; [FN301] evidence that the defendant-author was “at ‘war” ‘ with the plaintiff-doctor and other doctors sharing the plaintiff’s views; [FN302] and a predetermined conspiracy “story line” and deliberate selection of an author with a “known and unreasonable propensity” for such a story line. [FN303]
*383 Undoubtedly and justifiably, a preconceived story line and/or a preconceived slant with an intent to discredit, disparage, and inculpate a plaintiff is clear evidence of constitutional malice. This is the very essence of a hidden camera story. Such tactics “lend credence to other circumstances” evidential of constitutional malice [FN304] and demonstrate that a media defendant “foreswore its role as an impartial reporter of facts and joined . . . in an overall plan or scheme to discredit the character” [FN305] of the plaintiff. Indeed, as one court concluded in language eerily prescient of hidden camera tactics: “These factors [failure to disclose both sides of a controversy in earlier articles] are weights to put on the scales . . . because they suggest that the Press had obdurately made up its mind [the plaintiff] was a bad man and he ought to be exposed and put down.” [FN306]
As evidenced by Food Lion v. Capital Cities/ABC, Inc., [FN307] the quintessential example of the “bad man” /”ought to be exposed and put down” media preconceived mentality is the hidden camera “sting.” For another example, examine the case of Stokes v. CBS, Inc., [FN308] where the court found “the highly slanted perspective of each report” probative of constitutional malice. [FN309] The court concluded the defendant’s tactics were more than “merely favoring” one version of the facts: “Through the use of ambush tactics and distorting visual and editorial techniques, both reports *384 actively contributed to the impression that [the plaintiff] committed the crime.” [FN310]
C. The Network’s Use of Hidden Camera Stories to Increase Profits: Economic Motivation as Proof of Constitutional Malice
In Harte-Hanks, the Supreme Court discussed the link between constitutional malice and the defendant’s economic motivation at some length, particularly the Sixth Circuit’s reliance on: (1) the “bitter rivalry” between the defendant and its Cincinnati competitor for the local market where the campaign in question was being contested; (2) the fact that the competitor had “scooped” the defendant in doing an “initial exposé” of the “questionable operation” of the court by the incumbent supported by the defendant (and opposed by plaintiff- candidate), “a high profile news attraction of great public interest and notoriety” denominated by defendant’s editor as “the most significant story impacting the campaign;” and (3) that by “discrediting” the plaintiff, the defendant was “effectively impugning” its local competitor, “undermining its market share” in the contested area. [FN311]
The Court emphasized that constitutional malice is “not satisfied merely [by] a showing of ill will or ‘malice’ in the ordinary sense of the term,” [FN312] and that publication of defamation matter to enhance profits would not “suffice” for constitutional malice. [FN313] However, viewed as a whole, the Court of Appeals’ decision did not “infer actual malice” solely from such economic and other motivation. [FN314] Those motivations were “merely supportive” of the constitutional malice determination. [FN315]
The Court’s discussion is consistent with its earlier decision in Curtis Publishing Co. v. Butts, [FN316] where the Court’s opinions relied on in part the *385 defendant’s institution of a policy of “sophisticated muckraking” because of declining advertising revenues. [FN317] Noting the defendant’s position as a “major factor in the publishing business,” Chief Justice Warren, whose opinion became the opinion of the Court, listed the following as synonyms: “muckrake, throw mud at, throw or fling dirt at, drag through the mud and bespatter.” [FN318] The latter definition is the Siamese twin of hidden camera “infotainment.”
Substantial other case law supports use of a defendant’s economic motivation as “supportive” of constitutional malice. [FN319] Two lines of authority are particularly persuasive. The first focuses on use of defamatory matter in a format to maximize exposure and sale of a defendant’s newspaper or other medium. Thus, one decision found evidence of constitutional malice in the defendant’s decision to publish a six-day-old “needlessly false,” unverified story on the front page–“to attract the interest of the reading public.” [FN320] More recently, the Ninth Circuit found three items of evidence cumulatively sufficient for a finding of constitutional malice in Kaelin v. Globe Communications Corp., [FN321] a *386 libel action based on a headline, “COPS THINK KATO DID IT,” implicating Kaelin in the murders of Nicole Brown Simpson and Ron Goldman. The third item was the testimony by the defendant’s agent that “the front page of the tabloid paper is what we sell the paper on, not what’s inside it.” [FN322] The court found the latter evidence was such as to “permit a reasonable juror to draw the inference that [the defendant] had a pecuniary motive for running a headline that, in [defendant’s agent’s] words, was ‘not very accurate to the story.” ‘ [FN323]
The second line of authority is a defendant’s prototypical use of hidden camera stories during “sweeps weeks.” “Sweeps weeks” are certain weeks designated periodically throughout the year in the broadcasting industry where the ratings of each broadcast network are measured to determine its overall market share of the viewers. [FN324] These ratings are then used as a basis to set advertising rates for each broadcaster. [FN325] In the case of a “sweeps weeks” ratings period for a television audience, this may include publication of defamatory matters to twenty million viewers. [FN326] This incestuous link between hidden camera stories and “sweeps weeks” has been pervasively established in the literature [FN327] and constitutes compelling evidence of why hidden cameras–with their documented indicia of endemic unfairness–are so widely used: They make tons of money! Indeed, a leading decision by an esteemed state court has cited publication during “market ‘sweeps’ competition” as a reason for the defendant’s “glaring projection of [the plaintiff’s] name into the public’s eye” based on “rootless speculation.” [FN328]
*387 D. Constitutional Malice Is Shown by the Commission of Any Eavesdropping Tort and Crimes that Enable the Making of the Defamation
As early as the Talmud, the eavesdropper was deemed a violator of individual privacy. [FN329] The common law of crimes later treated eavesdroppers as indictable and punishable by fine and sureties of future good behavior. [FN330] Today, surreptitious surveillance by hidden camera is generally a tort [FN331] and often a crime. [FN332] Moreover, most courts (including the Supreme Court [FN333]) have rejected any suggestion that criminal or tortious newsgatherers can bootstrap themselves out of liability [FN334] by attempting to justify such surveillance after the fact by a “look what we found!” assertion of newsworthiness or public interest. [FN335] Implicit or explicit in the conclusion that the newsgatherer is not above the law [FN336] and remains *388 subject to rules of general applicability [FN337] is a conclusion that such excesses need to be deterred and sanctioned. [FN338]
Parallel public policies argue compellingly for treating such torts or illegalities as probative evidence of constitutional malice in defamation and false light cases. Where defendants stoop to illegality, they engage in anti- social behavior punishable criminally and/or in tort (via compensatory and punitive damages). [FN339] Why? Because the law desires, in the strongest possible terms, to send a message to invading defendants, whether by fine, imprisonment, or imposition of damages that the extraordinarily culpable misconduct engaged in is unconscionable and will not be tolerated. [FN340] Indeed, it seems clear that defendants willing to circumvent the law in pursuit of what they self-define [FN341] as the “truth” [FN342] and the greater good (but which is almost invariably a lie under another label [FN343]) should and must be told that this ends-justifies-whatever-means-used will, at minimum, reflect on the credibility [FN344] of the defendants’ assertions of good faith at trial. Surely, there is nothing unique or unusual in this respect. The courts have repeatedly cited a laundry list of factors undermining a defendant’s credibility, including instances of deception, lying, evasiveness, and contradictory utterances in supporting a finding of constitutional malice. [FN345]
*389 Indeed, a presumption of constitutional malice should occur when tortious and/or criminal conduct is committed in the name of the First Amendment, when the gathering and presentation of a story do not meet fundamental minimum standards of fairness, obvious to anyone who can think rationally. If a journalist is willing to commit a crime and to lie, then why should the story or the journalist be believed at all? The typical torts and crimes are violations of federal and state eavesdropping statutes, trespassing intrusions, fraud and the like. Any of these violations should be *390 sufficient to create a presumption of constitutional malice. Triers of fact should be allowed to consider the sheer weirdness of these concocted stories that constitute intentional interferences with the fabric of society using “actors” /”impersonators.” Journalists critical of hidden cameras have drawn parallel conclusions, particularly as to the “PrimeTime Live” story on Food Lion. [FN346]
Other cases have not limited the finding of probativeness to issues of credibility. In a false light case that has stunning similarities to a hidden camera case, the court upheld compensatory and punitive damage claims where the defendant’s agents publicized the plaintiff’s innocuous but unusual employment (involving a diving pig at an amusement park [FN347]) in a magazine that the court characterized as an essentially pornographic “glossy, oversized hard-core men’s magazine.” [FN348] The plaintiff first became aware she had been featured when confronted by a stranger in a drive-in grocery store: a man approached her, stating “Hey, I know you!” and went to retrieve the magazine. [FN349] She testified that her “legs were like jelly” and she felt “petrified.” [FN350] When he returned and showed her her picture, the plaintiff “felt like crawling in a hole and never coming out,” [FN351] a feeling almost invariable shared by hidden camera victims. [FN352]
Sound familiar? Mrs. Braun’s worst dream, any woman’s (or man’s) unparalleled nightmare had happened. Hundreds of thousands (multiply that by major multiples for a nationally-broadcast hidden camera piece [FN353]) *391 saw her in the most negative of lights, while Mrs. Braun had no forewarning of the publicity, no reason to expect it, and of course no opportunity to respond. [FN354] While the picture used of Mrs. Braun was a still photo, the fact that hidden cameras use live footage produces a more dramatic result. The moving images, often in black and white, magnify the damage and enhance the voyeuristic thrill [FN355] for the viewer. Of course, the defendants knew that neither she nor her employer would volunteer a photo for the “Chic Thrills” section of the magazine, so they lied to the plaintiff’s employer about the nature of the magazine, implying that it had the same readership as Redbook or McCalls. [FN356]
The court rejected the defendant’s self-justifying “tap dancing” [FN357] and found the employer’s transfer to be “fraudulently induced . . . the legal equivalent of no consent.” [FN358] Moreover, these misrepresentations were neither “inadvertent [nor] immaterial” but were made by at least two employees to “consciously deceive” [FN359] the employer, knowing that the employer would not have otherwise consented. [FN360] The court found the juxtaposition of her picture among a series of vulgar cartoons and jokes to be a highly offensive actionable false light depiction and further held that the defendants were aware the placement of the photo would create such a false impression. [FN361]
Sound familiar? It should, because it tracks the format of a typical hidden camera story, a calculated false impression by design, slant, juxtaposition, and omission. [FN362] And the court nailed the defendants for it, finding the constitutional malice required for punitive damages “strongly supported” by the defendant’s employees’ conscious misrepresentations to get the photo to make the story [FN363]–in other words, to get the photo to create the story.
In a similar case against Hustler magazine (owned by the same defendant, Larry Flynt), [FN364] the court likewise found the defendant liable for *392 what equated to a theft of photographic images [FN365] where the responsible photographic editor (whether employee or independent contractor was held immaterial [FN366]) was both vendor and purchasing agent for the defendant under respondeat superior. [FN367] The agency relationship was the basis for a finding of constitutional malice due to the false representation that the plaintiff actress voluntarily associated with the defendants’ sleazy magazine. [FN368]
In sum, two magazines were held liable in false light (where the constitutional malice applies, at least as to public figures [FN369]) based on fraudulent or quasi-criminal acquisition of images that were the bases for the false and highly offensive portrayals. [FN370] The parallels to prototypical hidden camera cases are obvious. A hidden camera operative (often but not always an employee [FN371]) fraudulently acquires film footage for use in a story where the defendant is aware, and indeed intends a false portrayal (or, at minimum, recklessly disregards the likelihood thereof). There is no difference in legal terms between fraudulent acquisition (no consent) and theft (appropriation without consent) in the latter cases and the prototypical hidden camera cases, except for damages–the footage is likely to be live and the market much larger.
*393 E. False Editing by Omission, Distortion and Juxtaposition May Be Defamatory and Made with Constitutional Malice
In a powerful critique of hidden camera journalism (and defense of publication damages in illegal newsgathering cases), eminent torts scholar Richard Epstein concludes that the “current literalist view of truth” allows an investigative reporter defendant to make a claim for “a literal but consciously nonrepresentative truth” [FN372] despite the investigative reporter’s being “consumed by selection bias” [FN373] that virtually ensures the reporter “will select and cull information in a way that places its target in the most unfavorable light.” [FN374] He cites Food Lion as an example of this manipulable tactic, where the segments of footage shown “were not shown in any way to be representative of the practices of Food Lion as a whole,” [FN375] totally undermining the “entire social justification for the exposé”–to allow better-informed consumers to make more intelligent decisions. [FN376]
Professor Epstein vigorously questions whether “the literal truth of any single episode” should be treated as “true” for privacy and defamation purposes and concludes: “If not, then in an important sense the exaggerated forms of reporting are more false than true, so that the boundary between defamation and invasion of privacy is shifted in the wrong direction.” [FN377] He offers the following argument:
*394 [A]ll investigative reporting should be regarded as presumptively false (given the biased approach to its collection and dissemination) so that, whatever the initial burden of production, the statements should be treated as though they were false unless the defendant can show, by analogy to the record libel privilege, that they constituted a fair and accurate abridgment of the true state of affairs. [FN378]
Professor Epstein views it as a “virtual certainty that First Amendment exceptionalism” will bar adoption of his presumptive falsity proposition, with the corollary that many defamation cases will remain “improperly reclassified” as privacy cases. [FN379] Professor Epstein may be too pessimistic. Given the doctrine of libel by omission [FN380] (including even statements of opinion based on substratal facts that “are either incorrect or incomplete, or [the] assessment of them is erroneous” [FN381]) and the plethora of constitutional malice precedent dealing with distortions and slants by omission of substantial mitigating or refutatory matter, [FN382] it is not at all clear that a single episode will always be deemed true instead of materially false and made with constitutional malice where evidence inconsistent therewith or substantially exculpatory thereof is deliberately ignored. Indeed, it is the authors’ position that such a scenario is the norm in hidden camera cases and that such a calculated media decision leaves the injured plaintiff with choices as to the theories to rely on, plead, and prove. These choices may well include economic considerations such as the measurably higher costs of processing a libel or false light claim with the plethora of defendant-protective hurdles constructed over time by a defendants’ bar and judiciary more concerned with an “uninhibited press” than the “equally compelling need for judicial redress of libelous utterances.” [FN383]
When libel plaintiffs and their lawyers start questioning the methodology used in “selection bias” (to use Professor Epstein’s *395 memorable phrase), media defendants and their lawyers engage in a cacophony of phony breast- beating about the horrors of second-guessing editorial decisions and the self- censorship that will be precipitated thereby. [FN384] Courts have [FN385] and should continue to view such with a barrel of salt and reject such self-interested, disingenuous knee-jerk reasoning. Indeed, the short answer is that the Supreme Court has repudiated such an approach in Masson v. New Yorker Magazine, Inc. [FN386] by incorporating the “historical understanding” [FN387] of the truth defense (“overlook[ing] minor inaccuracies” and focusing on “substantial truth” [FN388]) into the plaintiff’s burden of proving material falsity. [FN389] Under this view a defendant insubstantially altering the plaintiff’s words or insubstantially misportraying the plaintiff in a defamatory fashion or false light “effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, [and] the speaker suffers no injury to reputation that is compensable as defamation.” [FN390]
In sum, the well-documented rule is that the defendant’s right of editorial control exists only as to items, whether included or deleted, that do not effect the “substance” of the charge and render it materially false. Furthermore, as Herbert v. Lando [FN391] has forcefully demonstrated, inquiry into editorial choices is neither barred from discovery nor assessment at *396 trial. [FN392] The Court forcefully rejected the defendants’ argument for an absolute immunity from inquiry, concluding that such a direct inquiry will produce “more accurate results” by placing the totality of evidence, direct and indirect, before the fact finder. [FN393] The Court provided a powerful and tellingly appropriate (particularly for hidden camera aficionados) illustration for its conclusion:
Suppose, for example, that a reporter has two contradictory reports about the plaintiff, one of which is false and damaging, and only the false one is published. In resolvingthe issue whether the publication was known or suspected to be false, it is only common sense to believe that inquiry from the author, with an opportunity to explain, will contribute to accuracy. If the publication is false but there is an exonerating explanation, the defendant will surely testify to this effect. Why should not the plaintiff be permitted to inquire before trial? On the other hand, if the publisher in fact had serious doubts about accuracy, but published nevertheless, no undue self-censorship will result from permitting the relevant inquiry. Only knowing or reckless error will be discouraged . . . constitutional values will not be threatened. [FN394]
In Harte-Hanks, the Supreme Court itself counseled media defendants against “purposeful avoidance of the truth” for omitting to review a tape within its possession and failing to contact a “key witness” who could corroborate or refute defendants’ source. [FN395] If “an intent to avoid the truth” can be found in omission to review or interview under such circumstances, i.e., “inaction was the product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity” [FN396] of the source’s charges, then omission or distortion of known contradictory or refutatory information is even more compellingly culpable and actionable. The Court also cautioned defendants in Harte-Hanks they were not absolved of liability simply because some aspects of the source’s account were confirmed by the plaintiff. [FN397] The Court recited the aphorism: “[T]he *397 defamer may be [all] the more successful when he baits the hook with truth.” [FN398]
Against this backdrop, it is important to examine the cases supporting a finding of constitutional malice as to investigative pieces by hidden camera “journalists” “consumed by selection bias” [FN399] and who prototypically “select and cull information in a way that places its target in the most unfavorable light.” [FN400] One line of cases [FN401] permits a finding of constitutional malice where a defendant “knowingly or recklessly misstate [d] . . . evidence to make it seem more convincing or condemnatory” [FN402] than it in fact was. Similarly, defendants may be held liable where they calculatedly adopt “the most potential[ly] damaging alternative” construction of a statement or scenario. [FN403] As a co-author of *398 this article has concluded elsewhere, “[s]uch material, factual exaggerations created factual evidence for the jury as to whether the publications were indeed made with or without serious doubt as to truthfulness.” [FN404]
Defendants have likewise been held liable for deliberate omission of important data or information that would have “substantially modified, qualified, or eliminated” [FN405] the defamatory thrust. Indeed, the cases reflect the view that “not to tell the whole truth was in effect to lie.” [FN406] In other *399 words, a news magazine’s deliberate decision to omit material matter known to the newsgatherer prior to the showing of the edited footage creates a distorted, inculpatory telecast evidencing, at best, a recklessly false depiction, and, at worst, a knowingly false portrayal, i.e., an orchestrated fabrication. As one court trenchantly stated in finding constitutional malice from the defendant’s omission of part of a known public record, the defendant did so “simply because it refuted the point they were trying to make.” [FN407]
In the leading exemplar, Schiavone Construction Co. v. Time, Inc., [FN408] the Third Circuit held that the defendant’s decision to delete exculpatory matter, together with an editorial comment, was itself sufficient to sustain a finding of constitutional malice. [FN409] In this case the defendants were sued for reporting that the Schiavone name “appeared several times in the bureau’s reports on the 1975 disappearance of former Teamster Boss Jimmy Hoffa” together with an editorial comment that such a detail “would surely have intrigued” both the Senate committee that approved the cabinet nomination of Ray Donovan, company officer and stock holder, and the special prosecutor. [FN410] However, the defendants deleted the important qualification to the memo that “none of these [appearances in the Hoffa execution files] suggested any criminality, or organized crime associations.” [FN411]
The court held the author-defendant’s decision to “simply delete language that cast a very different and more benign light” on the facts *400 reported and the resulting “intrigued” insinuation was independently sufficient for a finding of constitutional malice. [FN412] Why? The jury could reasonably conclude that the defendants’ “alteration implicitly recognized” that the story would lack “intrigue” sans this “significant falsification.” [FN413] Accordingly, a jury could decide the defendant knew of the “damning implications, and emphasized them by omitting the exculpatory clause and adding editorial comment to draw attention.” [FN414] Otherwise stated, a jury could find the “omission of the exculpatory clause significantly altered the message of the memorandum, that [the defendant] knew its implication was false, and that [the defendant] intended that false implication.” [FN415]
Another persuasive case found the defendant liable where the defamation “consist[ed] of what was left unprinted as well as what was actually printed.” [FN416] The defendant’s reporter was in attendance at the scene where a person collapsed and died. [FN417] Despite knowing that the plaintiff-doctor, who was presiding at a meeting nearby, acted entirely appropriately, the reporter quoted the decedent’s angry and upset son suggesting that his father should have been given aid by a doctor (i.e., the plaintiff) or paramedic at the meeting. [FN418] The court found defamation by omission and constitutional malice by omission in not disclosing the known facts refuting any suggestion that the plaintiff had acted reprehensibly. [FN419] In two other cases arising from identical facts, the defendant similarly transformed innocuous professional conduct into heinous conduct by failing to disclose that a photo depicting a group of Mafia hoodlums included the plaintiff’s lawyers, who were acting in a purely representational capacity. [FN420]
Other constitutional malice cases involve a combination of conscious juxtaposition and deliberate omission of refutatory matter. For example, in a leading case a present and former head of the strike force on organized crime sued in part for a juxtaposition of their denials of corruption. [FN421] The editorial juxtaposition of the denials portrayed one or the other plaintiff as *401 lying. [FN422] However, the defendants knew but omitted disclosing that the apparently inconsistent nature of the denials was based totally on the timing of the phone calls made by the author to the plaintiffs. [FN423] The court found this juxtaposition omission was “undertaken either knowingly or in reckless disregard of the false impression it would produce concerning [the plaintiffs’] own credibility,” particularly where the defendants’ “strategic use of the word ‘however’ intentionally or recklessly set up a contrast” that made the plaintiffs’ “protestations of innocence ring hollow.” [FN424]
In another case the defendant opened a column with the question, “Records Stolen?” and then stated that the plaintiff-general counsel of the Teamsters was seen with the union president “removing boxfuls of documents” from the latter’s office. [FN425] Next the column referenced the plaintiff’s filing of a criminal complaint of burglary at union headquarters, which included “a boxful of miscellaneous items.” [FN426] The column finished by stating: “The Justice Department is investigating.” [FN427] In fact, the source had also disclosed that the records in question were moved from the union president’s office to the plaintiff’s, a factor the court suggested would “hardly seem newsworthy.” [FN428] However, this distorting omission implied *402 that the plaintiff obstructed justice and explained it by a false official report of burglary. [FN429]
F. The Nature of the Intentionally Damaging Hidden Camera Depiction as Evidence of Constitutional Malice
Being on a hidden camera is fundamentally and by definition a deprivation of human dignity because it implicitly but unequivocally says to the viewer that the person therein is such a low life, so despicable, that he or she should not be allowed to present a defense via the rules of ordinary discourse and fair play, canons to which journalists ostensibly adhere. Think about it. Could anything be more inherently harmful to the interest in reputation, an interest that the Supreme Court has equated to an interest in free expression [FN430] (and that most state constitutions specifically protect [FN431]) than a hidden camera depiction, where everyone is made to look by definition as a bad guy/girl? As then “PrimeTime Live” Executive Producer Richard Kaplan stated, such are unpopular with people because it is not an American thing: “It reeks a little of the KGB.” [FN432]
*403 The calculated damage from such “hidden camera” “stings” where the victims are tried and convicted and their reputations executed before the American public is undeniable, and is magnified by the denial of any meaningful opportunity to respond. “Ambush” interviews, the only and occasional opportunity, do not equate to an honest effort to get the “other side of the story” but are intended to catch people unaware, to make them look flustered, evasive and unbelievable–indeed, to frustrate reasoned and thoughtful responsiveness. [FN433] In sum, the hidden camera implicitly says to the viewer the person captured thereby is so scummy as to be denied that elemental assumption of civilized society–a reasonable right to be heard in self- defense.
Undoubtedly, given the cynical mood of the public and the pervasiveness of dissemination of information concerning all kinds of criminality, corruption, and malfeasance, [FN434] in the typical defamation or false light case a plaintiff will be unable to rely on the nature of the harmful matter as particularly helpful evidence of constitutional malice. [FN435] Clearly, such would not be sufficient in any event. [FN436] However, the Supreme Court has recognized on several occasions that the nature of the harm may be some supportive evidence of constitutional malice. In Butts the majority and concurring opinions respectively noted that the editors of Look “recognized the need for a thorough investigation of the serious charges” [FN437] but then “proceeded on its reckless course with full knowledge of the *404 harm” [FN438] likely to result. A year later, in the pivotal case of St. Amant v. Thompson, [FN439] the Court envisioned a situation where a good faith claim would not win out if the defamatory allegations were “so inherently improbable that only a reckless man would have put them in circulation.” [FN440] In Herbert v. Lando, [FN441] the Court rejected the argument the editorial process was immune from inquiry, citing “the impact that publishing the article would have on the subject . . . .” [FN442] Most recently, in Harte-Hanks, the Court gave substantial significance to the fact of the defendant’s awareness of the “highly improbable” nature of the “most serious charge,” i.e., that the plaintiff intended to confront the incumbent judge (plaintiff’s opponent) with tapes to compel his resignation. [FN443]
The consensus view of the cases parallels this view, finding at minimum, that the gravity of the foreseeable, resulting harm is a relevant factor for the jury to consider in assessing the constitutional malice issue. [FN444] An excellent example is the Kentucky case involving a charge that an assistant university coach-recruiter made an offer of money to a prospective basketball player. [FN445] The defendant, among other horrific practices, sent a copy of the article charging recruiting improprieties to every potential future employer in college basketball and a hundred major newspapers in the country. [FN446] The court quite reasonably concluded the defendants’ scienter of the gravity and potentiality of reputation disparagement from such a wide-spread and targeted dissemination “should have heightened [the defendants’] investigative efforts.” [FN447] Failure so to do was evidence of constitutional malice. [FN448]
Arguably, in a particular hidden camera case the nature of the facts will meet the St. Amant “inherent improbability” criterion, as in the important California case imputing to the plaintiff-foreign journalist that he was the true assassin of Robert F. Kennedy despite the conviction, affirmation on appeal, and continued imprisonment of Sirhan Sirhan. [FN449] *405 However, there appears to be compelling reasons for a strong inference of constitutional malice favoring hidden camera victims as a class. Why? Examine the characteristics of a typical hidden camera story: (1) the concession that such stories are, by definition, invariably negative [FN450] (no media defendant in the history of such “journalism” has proffered a single example of a hidden camera subject made to appear high- minded or heroic); (2) the incestuous, feeding-frenzy, conflict of interest relationship between “journalist” producers and voracious marketing departments; [FN451] (3) the magnification of harm by the denial of an effective opportunity for rebuttal; [FN452] (4) the defendant’s knowledge of the harm caused by such stories and their intent to cause harm, [FN453] or at least heedlessness of the consequences; [FN454] (5) the schizoid and deceptive disconnect between the public personality projected (the white knight on the even whiter charger jousting altruistically in the public interest) and the non-public actuality (the unheroic, surreptitious “KGB-ish” creator of the news, using fundamentally unfair and deceptive methods with only the basest of private interests as motivation); [FN455] and (6) the sheer extent of dissemination to vast audiences, [FN456] feeding a voracious, lip-smacking demand for such by viewers. [FN457]
In sum, hidden cameras are the modern equivalent of the Star Chamber [FN458] proceeding–with addenda. The media judges are hooded [FN459] and function in a loose continuum as predetermined assessors of guilt and balaclava-clad executioners of reputation. Such a material breach of societal norms of civility and elemental fairness deserves, indeed compels, *406 a conclusion that such endemically harmful productions reek of constitutional malice.
G. Constitutional Malice Can Be Established by a Decision to Publish in the Face of Known Contradictory Information
A great volume of precedent has established a black letter rule concluding that “a publisher cannot feign ignorance or profess good faith where there are clear indications present which bring into question the truth or falsity of defamatory statements.” [FN460] More particularly, “an inference of actual malice can be drawn when a defendant publishes a defamatory statement that contradicts information known to him, even though the defendant testifies that he believed that the statement was not defamatory and was consistent with the facts within his knowledge.” [FN461] The case consensus views an inference of constitutional malice as justified where the defendant has “actually seen ‘hard evidence” ‘ [FN462] that rebuffed or contradicted the defendant’s charge. Such is viewed as “not simply a failure to investigate,” [FN463] which is insufficient to establish constitutional malice under the New York Times standard. [FN464] Rather, knowledge of such evidence is deemed a “failure to consider contradictory evidence already in [the defendant’s] possession.” [FN465]
The typical hidden camera piece’s distorted editing process will almost invariably provide the plaintiff with a potential treasure trove of sources of information at odds with the conclusion drawn. [FN466] Counsel *407 should and must scrutinize all available sources of information about what defendants knew and when they knew it (with the corollary that only information known at the time of publication is generally usable to prove constitutional malice [FN467]) and be extremely careful to explore such in detail in pretrial discovery–an effort media lawyers will undoubtedly fight tooth and nail. [FN468] As a co-author has detailed elsewhere, the great volume of case law suggests such information inferential of constitutional malice may come from a wide variety of sources. [FN469] Of particular use as precedent in hidden camera cases will be those cases finding constitutional malice from information inconsistent with the defamatory imputation “resulting from defendant’s own investigation, knowledge, and actions.” [FN470]
Assume, arguendo, the following fictitious scenario (and compare it with the Food Lion case not litigated). Hidden Camera Infotainment TV *408 (“HCI-TV”) sends undercover employees posing as new employees with falsified credentials into eight branches of plaintiff’s chain, Top O’ The Market (“TOTM”), which sells upscale foodstuffs, including gourmet meals, to upper middle class patrons in yuppie suburbia. HCI-TV is acting on a tip from an employee that TOTM resells repackaged filet mignon that has passed its expiration date as “specially aged steak for beef gourmands”–at double the price per pound of regular filet mignon. At seven of the branches no evidence of such a practice is found and all hidden camera footage absolves the plaintiff. At the eighth branch, the one from which the insider tip came, an assistant meat manager, a rogue lone ranger, is filmed on hidden camera engaging in the reported fraudulent practice and stealing the real “specially aged steak” received from a reliable supplier for resale in his upscale steak restaurant.
HCI-TV does a high profile exposé featuring the footage of the single, rogue employee-thief, together with an ambush interview of TOTM’s CEO on the sidewalk outside corporate headquarters with the corporate logo in the background. The CEO comes across as defensive, awkward, stunned, and evasive (unsuccessfully) of the intrusive mikes and cameras thrust in her face. That night HCI-TV does an eight-minute segment on TOTM in which it expressly charges TOTM “with fraudulent, deceptive and criminal consumer practices” as to its “specially aged steak.” It also shows the hidden camera footage of the rogue employee, as well as the CEO’s responses–both are accurate portrayals of what was in fact filmed. However, at no time does HCI-TV disclose: (1) its knowledge that the fraud was an aberrational frolic by a single employee stealing from his unknowing employer; (2) that the other seven branches were absolved of any wrongdoing; (3) that its check of the last year’s records of meat inspections gave TOTM an overall “superlative” rating; and (4) the results of its interviews with five meat inspectors, whose consensus opinion based on knowledge of TOTM and its competitors was that TOTM had the “highest standards and best reputation” in the industry.
Several conclusions seem clear. First, HCI-TV’s broad charge of wrongdoing is both defamatory and false–a broad-gauged charge of malfeasance based on the acts of a single rogue employee-thief acting on his own. [FN471] Given the broad nature of the charge, the defendant could not *409 claim truth (or that the plaintiff had not shown material falsity) by focusing on the literal truth of the two segments of footage. Second, the information known to the defendant but ignored by it and never disclosed to the viewer in making its broad defamatory charge of corporate malfeasance would suffice to demonstrate constitutional malice because it was refuted by “hard evidence” [FN472] to the contrary known to the defendant from its own investigation. In other words, the real defrauder, the real malfeasant, the real antisocial actor is HCI-TV, fabricating a fraud, misleading the public, and doing irreparable harm to an above board corporate citizen to generate revenue.
To any hidden camera aficionado that says this is all hyperbole and not how we operate, we make this challenge: When sued for invasions of privacy (intrusions, etc.), defamation, and false light, make an unqualified offer to disgorge all video and audio tapes taken, all notes and reports, all earlier drafts using the footage, and make your reporters freely available for deposition without equivocation or reserve. Further allow the court and jury to decide–what did you know, when did you know it, and were your ultimate conclusions inconsistent therewith? Our bet is that such disgorgement will not occur for fear the court and jury would almost invariably find a “calculated falsehood.” [FN473]
H. Application by Analogy of the “Obvious Reasons to Doubt” Standard for Third Party Sources to the Format and Methodology of Hidden Cameras
In St. Amant, the Supreme Court’s most extensive analysis of constitutional malice, the Court provided detailed general instruction on the meaning of the “obvious reason to doubt” standard, i.e., where defendants’ “[p]rofessions of good faith will be unlikely to prove persuasive . . . .” [FN474] *410 Undoubtedly, the most important discussion is the one that is the most common focus of plaintiffs’ attacks and defendants’ defenses, i.e., “recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” [FN475]
As any libel litigant or lawyer on either side will attest, there is a huge volume of precedent interpreting this criterion, [FN476] much of it exculpatory [FN477] of defendants, some of it bending over backwards in interpreting in exceptionally broad and favorable terms defendants’ protestations of misconduct. [FN478] What is clear beyond debate is that negligent or even grossly negligent investigations or reportage are not actionable. [FN479] However, this does not give defendants free rider status. As the Supreme Court affirmed, “[t]he finder of fact must determine whether the publication was indeed made in good faith.” [FN480] Otherwise, “mere swearing could, as a matter of law, defeat” [FN481] any claim of actual malice. A significant volume of case precedent lines up on each side of the constitutional malice divide–that, one the one hand, insufficient (i.e., at most, negligent or grossly negligent [FN482]), and that, on the other, sufficient [FN483] for a jury to determine a defendant “in fact entertained serious doubts,” i.e., had “obvious reasons to doubt the veracity” [FN484] of the source or the accuracy of the source’s charges.
Fortunately for plaintiffs, there is a significant volume of helpful precedent, [FN485] though this is generally ignored by the plaintiffs’ bar who are often solo practitioner libel lawyers less experienced than the well- organized and mutually supportive defendants’ bar. [FN486] The thesis of this *411 subsection is that an analysis of the cases delving into the obvious reason to doubt (interpreted by the Court as “reason to suspect” [FN487]) criterion discloses a laundry list of factors, that, if redirected internally to critique hidden camera investigative “journalism,” justify a presumption of constitutional malice. Otherwise stated, if in individual cases, a quite limited number of considerations suffice to take a particular case to a jury, cannot an even more compelling argument be made for jury resolution where the very nature of hidden camera “infotainment” exhibits a deeper and more invidious list of considerations weighing in favor of “obvious reasons to doubt” any and all stories emanating from such illegal or tortious newsgathering, and particularly hidden camera stories?
A detailed analysis of the precedent concluding there is no right to rely on sources where “obvious reasons to doubt” exist discloses the following, all of which parallel facets of the investigative “journalism” at issue in hidden camera cases: known involvement in criminal activity reflecting dishonesty or deceit [FN488] or otherwise affecting trustworthiness; [FN489] *412 other indicia of lying or deception; [FN490] evidence of self-interest [FN491] and/or questionable motives; [FN492] known propensity to make inflammatory, defamatory, or sensational comments; [FN493] non-disclosure of factors affecting credibility; [FN494] unreliability in part in past; [FN495] lapse of time and dated nature of information; [FN496] hostile source(s); [FN497] sources reflecting ill motivation toward the plaintiff or a preconceived disposition to injure the plaintiff; [FN498] editor’s awareness of a reporter’s limited training or experience; [FN499] sources *413 with “difficulty differentiating between reality and nonreality;” [FN500] knowledge of the gravity of the charge and harm to the plaintiff; [FN501] knowledge of the source’s lack of success in investigation; [FN502] knowledge that the extreme nature of the charge “far outpaced” the source’s evidentiary foundation, [FN503] including a “rush  to judgment”; [FN504] ignoring other plausible interpretations [FN505] or possible exculpatory matter; [FN506] neglecting or declining to pursue other promising evidence [FN507] or to pose key questions to pivotal figures; [FN508] ignoring the plaintiff’s denials [FN509] or failing to provide an effective opportunity to respond; [FN510] knowledge the information is of dubious value; [FN511] and knowledge the source is of an *414 unreliable nature. [FN512]
I. Deviation from “Professional Standards” as Evidence of Constitutional Malice
The exacting New York Times standard necessitates proving “subjective awareness of probable falsity,” [FN513] i.e., that the defendant had a “mordant unconcern with the truth” [FN514] or knew or had reason to suspect falsity. [FN515] This standard bars imposing liability merely based on “a normative conclusion that the publisher should have known of the falsity of the statement” [FN516] or that the defendant lacked reasonable grounds for belief in the truth of the publication. [FN517] In other words, constitutional malice is not defined solely under a “reasonable man or prudent publisher” [FN518] standard and a “[f]ailure to investigate does not itself establish bad faith.” [FN519]
*415 The Supreme Court plurality in Butts adopted a lower objective standard for public figures in affirming a large plaintiff judgment, [FN520] i.e., “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers,” [FN521] and cited several factors relevant thereto: gross inadequacy of the investigation in light of the serious nature of the charges; the defendant’s concession of a “need for a [more] thorough investigation;” and the fact the defamatory matter was not “hot news” requiring “immediate dissemination.” [FN522] In Harte-Hanks, [FN523] the Court returned to this issue and the Sixth Circuit’s partial incorporation of the Butts plurality criterion. [FN524] The Court reaffirmed that the latter had been “emphatically rejected” in favor of the “stricter” New York Times standard [FN525] and that the “professional standards rule” had “never commanded a majority of this Court.” [FN526]
Viewed in context, however, the Court found that the appellate court’s use of the Butts criteria was not error. [FN527] However, the Court reaffirmed that the “elusive constitutional standards” [FN528] required “more than a departure from reasonably prudent conduct,” [FN529] and could not be met *416 merely by proof of a “failure to investigate before publishing, even when a reasonably prudent person would have done so.” [FN530] The Court reinterpreted both the opinions in Butts as involving subjective awareness– i.e., an “unreliable informant’s false description” [FN531] where the magazine had “reason to question the informant’s veracity.” [FN532]
In other words, Harte-Hanks adopted the consensus view [FN533] of the decisions that absence of “hot news” and a negligent or grossly negligent investigation do not suffice for constitutional malice, and tacitly affirmed the view that “press responsibility is not constitutionally mandated.” [FN534] However, the Court also took pains to distinguish sufficiency from relevance of such “investigatory deficiencies or other negligent acts or omissions” [FN535] as supportive evidence of constitutional malice. [FN536] The Court confirmed the general approach of the case law [FN537]–that such deficiencies, when combined with other evidence, may indicate malice [FN538]–when it stated “it cannot be said that evidence concerning . . . care never bears any relation to the actual malice inquiry.” [FN539] More recently, the Court reaffirmed the validity of the “hot news” versus non-hot news dichotomy as a relevant constitutional malice factor in the so-called “fabricated quotes” case of Masson. [FN540]
Against this backdrop, several overlapping issues arise. Is there a consensus on the professional journalistic standards applicable to hidden cameras? Is there a definite statement thereof binding on journalists? Is the latter a necessary precondition to inquiry into a media defendant’s deviation from journalistic standards? What is the relevance of a deviation from the particular defendant’s own acknowledged internal rules on point, such as the rush to use undercover hidden cameras without exhausting alternative sources?
The latter is an easy scenario to resolve. The cases clearly disallow liability solely based on deviation from a media defendant’s own contrary *417 established policy and/or of journalistic standards or ethics. [FN541] However, substantial case law reflective of the approach of the Supreme Court stated above [FN542] supports use of such as circumstantial evidence relevant to and supportive of constitutional malice. Moreover, reliance on failure to comply with the defendant’s own internal policies as probative of culpability is consistent with and parallels the time-honored rule in tort law generally [FN543]–that where the defendant recognizes foreseeable harm, adopts a feasible measure to respond thereto and fails to follow such, this is relevant evidence of culpability. [FN544] Such evidence will be available in almost all hidden camera cases, as broadcast executives invariably “peddle the line” that hidden camera stories are justifiable if there is no other way to get a story, [FN545] a view criticized as “patently false” by one commentator. [FN546]
*418 Substantial case law has delved into the utility and usability of deviation from professional standards evidence. The exceptionally thoughtful opinion in Hinerman v. Daily Gazette Co. [FN547] should (but probably won’t) make every hidden camera television newsmagazine producer-apologist squirm in discomfort. In upholding a public official/constitutional malice finding, the court analyzed recent “subtle but important shifts” in Supreme Court libel jurisprudence, “reflect[ing] anebbing tolerance for irresponsible media behavior,” [FN548] including recognition of ill will and “egregious deviation from accepted standards of journalism” [FN549] as admissible circumstantial evidence of constitutional malice. The court discussed in extended detail the rationale for admitting these types of circumstantial evidence, emphasizing that “more sinister, self-serving forces [are] at work in both the print and broadcast media that evoke a widespread demand among the public for greater media accountability.” [FN550] Specifically, the court noted that there had been “a rediscovery that the popular media are in the entertainment business far more than they are in the information business.” [FN551] In essence, the court concluded the public (and the courts) has recognized once again, after the “euphoria” of the press’ idealistic period of the 1960s-1970s (when the press powerfully advocated civil rights, disengagement from Vietnam, investigation of Watergate, and honest government), the well-documented excesses of “yellow journalism.” [FN552] The court focused on the modern version of such sensationalist journalism, “mankind [‘s] . . . inveterate predilection to rejoice in the suffering and degradation of others,” [FN553] a focus necessitated by modern mass media economics. As the court said, “[u]nfortunately, a large measure of the economic success of any newspaper or broadcast news department is dependent upon sensational or ‘entertaining’ scandal.” [FN554]
Broadly construing journalistic standards, the court first found “gross deviations from professional journalistic standards” in the defendant’s failure to contact the plaintiff to determine whether he could provide refutatory or mitigating information. [FN555] It then found evidence of *419 constitutional malice also in the editor’s express admission that he would not have published the defamatory matter but for the intervention and “explicit direction” of the publisher, to whom he had previously explained his misgivings. [FN556] In other words, liability was found in substantial part because the publisher’s interests superseded that of an unwilling and dubious editor. Sound familiar? It should!
Another deviation from a “professional standards” decision involved the defendant’s unjustified decision to rely on memory rather than investigative research. [FN557] A third case cited the utter absence of adequate investigation prior to publication, reliance on speculative, accusatory inferences, and the absence of “effective editorial review.” [FN558] Lastly, and bearing eerily striking parallels to the typical hidden camera case, a court found recklessness in the defendant’s methodology–to write the story first, “complete with theme and slant,” and then utilize a reporter to generate “colorful descriptions and quotes” to distinguish it from a “story idea” taken from a newspaper item. [FN559] As the court concluded, “[f]actual inaccuracies to make [the plaintiff] fit the preconceived ‘tripwire’ [Vietnam veteran] stereotype in the story idea” might be perceived as reckless disregard for the truth. [FN560]
*420 Several things seem clear. The courts have rejected any First Amendment exceptions for investigative newsgathering. [FN561] Also, undeniably, there is no binding system of ethical rules that can be implemented by an authoritative decision-maker parallel to the professional discipline of lawyers or judges. [FN562] In this sense, a claim can be made that journalists as a collective group lack professional status and stature. [FN563] But the Supreme Court’s analysis in Harte-Hanks and the decisions discussed above neither demand nor discuss such a rigid threshold requirement, but instead operate at a broader level of generality, examining whether the defendant’s act or omission (failure to contact the plaintiff, reliance on memory alone, failure to investigate, reliance on speculative, accusatory inferences without editorial review, and finding evidence to implement a preconceived storyline) violated broad concepts of journalistic integrity. Viewed in this light, there are general standards that courts can and do fashion and rely on in assessing constitutional malice in the hidden camera milieu.
Examining the journalistic literature and commentary suggests convincingly that there is a strong consensus [FN564] on many basic points *421 among print journalists [FN565] and television newsroom journalists, [FN566] at least at the national network level, [FN567] who have examined the big picture of the modern media milieu. There is concern over: the blurring of the news-entertainment dichotomy; [FN568] the concomitant “dull[ing]” of ethical *422 constraints [FN569] from the dominance of the “bottom line” [FN570]/”show-biz imperative” [FN571] mentality and its incestuous offspring, the hidden camera; the indifference to the plight of victims of hidden camera stories “caught in the media’s crosshairs” [FN572] and the overuse [FN573] of hidden cameras in an expanding market to minor stories of a “pipsqueak,” [FN574] “gimmicky,” [FN575] or “two-bit” [FN576] nature not justified by the lies, dishonesty, and intrusiveness *423 inherent therein; the decline in public respect for journalism [FN577] as a result of this “degradation of the culture of news;” [FN578] and the compelling need to *424 ensure and protect the independence of the newsroom from the business side of the operation. [FN579]
Although occasional critics have viewed “press ethics” [FN580] as a contradiction in terms, [FN581] oxymoronic, [FN582] or irredeemably vague, [FN583] there *426 appears to be strong support for and acceptance of some general guidelines as to the appropriate use of active deceit [FN584] and hidden cameras, and the imposition of some controls on the end- justifies-the-means auto-determination of appropriateness by the journalist. [FN585] The use thereof would be permitted only where: (1) traditional investigative methods have not worked (in other words, as a last alternative); [FN586] (2) it would be limited *427 to the unusual cases of vital or compelling public interest; [FN587] (3) there would be revelation-disclosure of the surreptitious methods used and an explanation for the deception and why this method was the only way to get at the facts of the story [FN588] in augmenting other traditional modes of *428 investigative reporting; [FN589] (4) the harm prevented outweighed any harm from “the act of deception”; [FN590] and (5) the journalists have engaged in “a meaningful, collaborative, and deliberative” process of decision-making. [FN591] Concededly, there may be a difference between theory and reality; [FN592] further the consensus is stronger as to the circumstances identified in (1)-(3) than those in (4) and (5).
Under the aforesaid broad criteria used by the courts, non-compliance with applicable journalistic standards would appear to be at least admissible evidence [FN593] on the issue of constitutional malice, both in terms of the credibility [FN594] of the defendant (particularly where it also deviates from the defendant’s own internal policies) and deviation from widely *429 accepted professional norms. [FN595] In addition, a separate issue may arise as to the significance of the failure of the “profession” (giving it the benefit of the doubt on this issue) to adopt more precise and binding rules on point. What is the significance of what appears to be a calculated decision to leave the rules warm and fuzzy with maximum flexibility and deniability? [FN596] As one critic has suggested, pointing to the absence of any code and the adoption of aspirational rules at best, “[W]ho can blame the media for using the ‘I didn’t know any better’ defense?” [FN597]
In light of the problems inherent in use of hidden cameras [FN598] (possibly illustrated by, but not limited to, the unlitigated Food Lion scenario discussed above), [FN599] is the failure of individual defendants and/or the television media in general to provide detailed guidance, direction, and supervision in and of itself the type of callous indifference to the victim’s rights (including the personal interests in preserving reputation and avoiding portrayal in a damaging false light) that should be deemed evidence of constitutional malice? As one commentator asked, “[D]o you want someone like Geraldo [Rivera] deciding when it’s OK to peep into your home or business?” [FN600] Given the institutional defects [FN601] of hidden camera stories delineated above, common sense, public policy, and a measured respect for reputation and human dignity demand that hidden camera producers’ work, at a minimum, “require(s) special monitoring” [FN602] *430 efforts of an ongoing nature, prior to, during, and subsequent to the story’s creation and before publication. The absence of such a process, if proved or conceded, may be viewed as reflecting an “I don’t care” attitude to the publication of falsity, [FN603] the “reckless indifference,” “ostrich” or “wilful *431 blindness” that is a commonality of both cases applying the New York Times standard and cases addressing constitutional tort liability. [FN604]
J. Failure to Retract Supports an Inference of Constitutional Malice
When defendants do a hidden camera story with its predetermined thesis and “reporters” acting as both creator and participants, they get what they intend–a defamatory/false light portrayal, an orchestrated mugging of the plaintiff. Needless to say, what they deem to be the “truth”–and have orchestrated as the “truth”–can never be false as they define falsity. Consequently, generally there is no need (according to such defendants) for a retraction or an apology, even when specifically requested with a detailed analysis of why the portrayal is a false depiction. [FN605]
*432 Any defendant’s self-righteous, unjustified refusal to retract provides additional probative evidence of constitutional malice. As the Restatement (Second) of Torts provides, “[U]nder certain circumstances evidence to this effect [of a failure to retract after a demonstration to the defendant that the matter is false and defamatory] might be relevant in showing recklessness at the time the statement was published.” [FN606] The substantial consensus of the case law agrees, [FN607] treating a failure to retract as relevant and admissible evidence on the “overall question ” [FN608] of knowing or reckless disregard of falsity. As one court has pointed out, such a failure to retract “underscored defendant’s reckless attitude as to the consequences” [FN609] of its publication.
Television newsmagazines have been engaged in a vicious war for ratings while viewership inexorably diminishes in a world of cable and satellite. [FN610] For over twenty years hidden camera purveyors have been playing a game of “chicken” with trial and appellate courts throughout the United States, intentionally testing the limits of fraud, eavesdropping, privacy, and defamation via the use of hidden cameras. [FN611] News has become entertainment. Stories are now “created” by “producers” making “reality” television shows, who attempt to clothe themselves in First Amendment rhetoric, but at the end of the day produce tawdry hidden camera stories. Like gods, and as in Sanders v. ABC, Inc. [FN612] and Food *433 Lion, Inc. v. Capital Cities/ABC, Inc., [FN613] these producers and their lawyers (who may in the future suffer legal liability for aiding and abetting criminality and tortious misconduct in the newsgathering process, [FN614] and in condoning and fostering an environment of calculated falsehood in libel/false light hidden camera cases) have been deciding whose lives and reputations will be ruined. The resulting unfair shame of hidden camera has become the new version of The Scarlet Letter, [FN615] the very real effects of the hidden camera. The victims of the hidden camera are real, live, human beings, who have faces, families, lives, and want to see a future filled with hope and promise after being blind-sided by these nasty, inculpatory, and entirely unnecessary set- ups. Fortunately, the television media is beginning to realize (but needs to be repeatedly reminded) that the people of this nation are “mad as hell” and are not going to take it any longer. [FN616]
Undeniably, a television newsmagazine would howl if the New York Times sent in a false worker to secretly record its inner operations in planning its spying missions, and then broadcast this to the world. The “real news” about hidden cameras is of entities which intentionally and constantly test the limits of (and break) the law of privacy, and commit other torts literally to manufacture news and to excoriate and exploit those who are powerless and who cannot fight back unless their attorneys are willing and able to spend millions of dollars engaging high-priced, extremely sophisticated defense law firms with unlimited budgets funded from the huge profits generated by hidden camera stories and a steely determination borne out by history and practice to “appeal to the end.” [FN617] In sum, the networks and local stations seem to view hidden cameras as a sport in which they clearly understand that rights of privacy and reputation are going to be trashed while they try to figure out ways to outsmart the common person, the common law and common decency–they are testing indeed taunting courts and all citizens–to try and stop them. It is a taunt *434 that citizens and the courts should take on.
Who is harmed by these Scylla and Charybdis [FN618] twin monsters of illegal and tortious newsgathering and calculated falsehoods–both types of “calculated misdeeds” [FN619] beyond the pale of First Amendment protection? Clearly, the individual victim, but even more clearly, the collective soul of the country, is victimized by these massive entertainment frauds masquerading as “news.” Without doubt, true speech in most cases fosters and improves public debate, while false speech undermines and degrades it. [FN620] States have both the duty and the right to eliminate this taint as the Supreme Court has unequivocally recognized: “False statements of fact harm both the subject of the falsehood and the readers [and viewers] of the statement. New Hampshire may rightly employ its libel laws to discourage the deception of its citizens. There is no ‘constitutional value in false statements of fact.” ‘ [FN621]
As Food Lion, Sanders, and Shulman v. Group W. Productions, Inc., [FN622] powerfully demonstrate, courts are becoming increasingly willing to punish the monster Scylla for newsgathering illegalities and torts. [FN623] To do *435 so adequately, publication damages are an absolute necessity. Otherwise, many, if not most, plaintiffs will be essentially remediless. Why? Because they are, almost by definition, unaware of the highly offensive intrusion until the publicity rears up in their shell-shocked faces on television. We are confident that eventually the Supreme Court will follow the Ninth Circuit’s granting of such enhanced damages in Dietemann v. Time, Inc., [FN624] the consensus view of the common law, and clarify the ambiguity in Cohen v. Cowles Media [FN625] and the gross perversion of justice by the Fourth Circuit in Food Lion. [FN626]
As for the co-monster Charybdis, the shredder of reputation by calculated falsehood, what is the appropriate remedy? Ideally one should get one’s reputation back after it has been unfairly ruined, but this is an impossibility. Just ask Raymond Donovan, the Secretary of Labor under Ronald Reagan, who was forced to step down from office to defend himself successfully by bringing a libel action concerning allegations he had been involved with the Mafia. [FN627] Remember his plaintive rhetorical query after the verdict on the courthouse steps, where should he go to apply to get back his reputation? [FN628] Given the unlikeliness of an apology and retraction, he did what plaintiffs do in torts cases–he sought substitutional relief, damages to make him whole to the extent this rough-hewn remedy can do so, and punitive damages [FN629] to punish and deter defendants and those similarly situated from engaging in similar “wilful blindness” [FN630] in the future.
The common law and the First Amendment provide no protection against “calculated falsehood,” knowing or reckless falsehood, as the Supreme Court has repeatedly recognized. [FN631] To protect the victims of hidden camera infotainment and tabloidism, the courts need to continue to *436 recognize and affirm certain self-evident (to all but the breast-beating apparatchiks of and for the media) truths:
First, the defense of truth and First Amendment mandated plaintiff proof of material falsity (where mandated by the First Amendment) must be viewed through the prism of the big tent–of the broad brush, implication, juxtaposition, insinuation, innuendo, selective omission–not the little tent of literal truth. [FN632] Where defendant’s newsgathering tactics and selective end product transform a few isolated incidents into the broad-brush of massive or general malfeasance, courts should and must require that a defendant asserting truth show that the broad charge is true. There is nothing revolutionary about that. This is the common law and reflects common sense. [FN633] As a corollary, let the plaintiff show, in proving material falsity, that the defendant magnified isolated and atypical practices into broad charges of wrongdoing, [FN634] as may have happened in the story on Food Lion.
Second, in light of the corrosive, corrupting, and inculpatory nature of hidden cameras (possibly exemplified by the unlitigated Food Lion case), the courts should, in the unique context of hidden camera stories, presume they are false and presume that they are made with constitutional malice, i.e., published in knowing or reckless disregard of falsity. [FN635] In any event, *437 if not presumed, material falsity and constitutional malice should be provable following the analysis aforementioned. [FN636] Presuming such, however, would measurably lighten the substantial and expensive burden for plaintiffs and plaintiffs’ counsel of getting at the wealth of information relevant to the production of hidden camera stories–including access to unused or selectively used outtakes (if still available and not destroyed pursuant to a policy of routine expungement) and other indicia of editorial choice. Under this approach, if the defendant desires to defend its editorial process (having the burden to do so), it will do so with a vengeance, trotting out the vast array of media personnel and evidence at its disposal with a war chest to fund its defense. If it chooses not to do so, the unrebutted inferences of falsity and constitutional malice will remain–the latter justified by the plethora of damning factors common to hidden camera stories delineated above. [FN637]
One can imagine, with a grin and some glee, the Chicken Little “sky-is- falling” [FN638] response to the above suggestions. But these modest suggestions only enhance what plaintiffs and plaintiffs’ lawyers do and can do if they have remotely comparable access to resources. And the benefits are compelling. As the demand for hidden camera tabloidism and its profit-driven motivation demonstrate, there is little interest in or inclination for television newsmagazines to forego hidden camera stories, the proverbial case of the fox guarding the henhouse. In fact, the interest in hidden camera production seems to have revivified after the Fourth Circuit’s decision in Food Lion despite the twin disasters in Shulman and Sanders. [FN639]
Clearly, whatever the concerns of newsroom journalists–and they are deep and abiding–they are essentially powerless in the face of the *438 profit monster. [FN640] The resultant blurring of the entertainment-news dichotomy and the downward spiral in the content and quality of television news makes the “vast wasteland” [FN641] of American television of four decades ago look like a Periclean Golden Age by comparison to the sensationalist drivel that permeates and largely dominates the television newsmagazines, much of network television and the media generally at the dawning of the new millennium. Journalistic critics have been vociferous in condemning hidden camera stories and tabloidism generally, [FN642] but to little discernible avail or impact. It is time for the courts to intervene– sternly and with a severe warning.
Despite the “Chicken Littlists,” the net impact of our proposals will be positive. A presumption of falsity and constitutional malice will enhance the likelihood of plaintiff success, increasing the pressure on network and local television to segregate the editorial function from the profit monster or suffer the financial losses that they will incur and, more importantly, the taints to reputation and integrity from findings of calculated falsity. As a corollary, reputable and serious providers of news will benefit by enhanced reputations and wider viewership and readership, whose competences and abilities as citizen-decisionmakers will be measurably broadened by better quality, more challenging and less sensationalist and biased news coverage. Maybe network and local televisions will be nudged into reportage with a revitalized sense of the public interest rather than the currently pervasive profit culture and its debilitating effects. [FN643] The net impact will be a more dynamic, less *439 economically (if not suffocatingly) fettered television, a more meaningful marketplace of ideas. [FN644]
In sum, we do not seek any substantial “liberalization” of applicable law. We are merely asking for a judicial acknowledgement of the logical legal effects of a deleterious practice that taints the public weal and private reputation. Hidden camera stories can and do violate applicable law in a variety of ways. Doing so has become an accepted, indeed expected, part of its corporate culture because the hidden camera is a sexy way to keep viewer’s interest. Violation of privacy, penal codes, frauds, libels, and other torts are an inevitable result when an entity engaging in journalistic endeavors determines that laws are made to be broken. Sloppy and corrupt journalism is inevitable when there is a tortious and criminal mind-set to gather hidden camera footage. Powerful courts across the nation have weighed in against these hurtful practices, indicating that investigative journalism and the First Amendment are not blackjacks and do not provide unfettered immunity from wrongdoing. [FN645] In American culture, a “fair fight” is the norm and expected. [FN646]
*440 By contrast, hidden cameras are the equivalent of tying the hands of the victims of the hidden camera behind their backs, and annihilating them as if they are defenseless gladiators in an arena owned by, and a spectacle presented by the broadcaster, featuring hidden cameras instead of lions. [FN647] Journalists at all levels who “cover themselves” and set up stings with hidden cameras can be excellent targets for wronged plaintiffs, and risk economic and reputational ruin if they engage in such conduct. Perhaps a few major judgments in libel and/or in false light cases will moderate or redirect current thinking and methodology, epitomized by hidden cameras but infecting and tainting journalism in general. Undoubtedly, there is no place to go but up, as Jim Lehrer’s recent pessimistic and dispirited (and needless to say, dispiriting) comments amply demonstrate. [FN648] It is time for the courts to intervene and help reinvigorate American news and *441 journalistic and ethical standards, reversing the downward spiral into the miasma of tabloid journalism. [FN649]
[FNa1]. Regents Professor and Professor of Law at Salmon P. Chase College of Law, Northern Kentucky University and the author of the treatises The Law Of Privacy and Defamation, A Lawyer’s Guide. Professor Elder was a co-author of the appellant’s briefs to the California Supreme Court in Sanders v. ABC, Inc., 978 P.2d 67 (Cal. 1999), and was a co-author with Mr. Johnson of an amici curiae brief in Shulman v. Group W. Prods. Inc., 955 P.2d 469 (Cal. 1998).
[FNaa1]. B.A., University of California at Berkeley, 1971; J.D., Southwestern University School of Law, 1975. Mr. Johnson was the lead trial and appellate attorney in Sanders, and his firm, Johnson & Rishwain, LLP, specializes in libel, privacy, right of publicity, and entertainment litigation throughout the United States.
[FNaaa1]. B.A., University of California at Los Angeles, 1987; J.D., Pepperdine School of Law, 1991. Mr. Rishwain is a partner at Johnson & Rishwain, LLP, and has been and is counsel in many defamation, invasion of privacy, and right of publicity cases, and was a co-author of the appellant’s briefs to the California Supreme Court in Sanders.
The authors are grateful to duVergne R. Gaines, a fourth-year law student at Loyola Law School of Los Angeles, who provided excellent research and writing assistance with an attitude that matched her efforts, and to the Chase College of Law professional staff, who responded diligently and creatively to requests for unusual materials.
[FN1]. Samuel Butler, Unprofessional Sermons, in Notebooks of Samuel Butler 200, 214 (Henry Jones ed., 1913).
[FN2]. Joseph Roux, Meditations of a Parish Priest, in International Thesaurus of Quotations § 898(13), at 595 (Rhoda Tripp ed., 1970).
[FN3]. Sissela Bok, Lying: Moral Choice in Public and Private Life 86 (1978) [hereinafter Bok, Lying].
[FN5]. Gail Diane Cox, Privacy’s Frontiers at Issue: Unwilling Subjects of Tabloid TV Are Suing, Nat’l L.J., Dec. 27, 1993, at 1. At the inception of the Sanders case, Andrew M. White, counsel for ABC, told the National Law Journal that in respect of legal protections afforded the press, “[i]f there is any evolution in the near future,…it will be a shrinking of the individual’s expectation of privacy.” Id. One startling occurrence, never reported by anyone, was that the press–The American Society of Newspaper Editors, CBS, NBC, CNN, The National Association of Broadcasters, The Newspaper Association of America, The Reporter’s Committee for Freedom of the Press, and other media giants–filed an amici curiae brief in the California Supreme Court in Sanders supporting ABC’s position that there should be no right of privacy in the workplaces of America and that citizens should go to work with the understanding that they might be surreptitiously taped by their “co-workers” who were really spies for later broadcast on a national newsmagazine. Brief of Amici Curiae American Society of Newspaper Editors et al. at 7, Sanders, 978 P.2d 67 (No. S059692). The populace should have been informed about this radical position, which was as close to Big Brother as you can come, but there was silence instead, as no one is watching the press when it takes such positions. But this example of the media’s arrogance and circling the wagons mentality is not atypical. See, e.g., Rice v. Paladin Enters., Inc., 128 F.3d 233, 265 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998). The court there caustically commented:
Paladin, joined by a spate of media amici, including many of the major networks, newspapers, and publishers, contends that any decision recognizing even a potential cause of action against Paladin will have far-reaching chilling effects on the rights of free speech and press….That the national media organizations would feel obligated to vigorously defend Paladin’s assertion of a constitutional right to intentionally and knowingly assist murderers with technical information which Paladin admits it intended and knew would be used immediately in the commission of murder and other crimes against society is, to say the least, breathtaking.
There exists an even more recent example of the media’s surreptitious attempts to limit the right of privacy. See Flanagan v. Flanagan, No. S085594, 2002 Cal. LEXIS 1661 (Mar 14, 2002). The California Supreme Court there held that, under the California Invasion of Privacy Act, a communication is deemed confidential if one party to the conversation reasonably expects that the conversation will not be overheard or recorded. Id. at *2-*3. See generally Cal. Penal Code § 632 (West 2002). Flanagan expressly disapproved an earlier ruling that held a conversation is confidential only if the party asserting confidentiality has an objectively reasonable expectation that the content will not later be divulged to third parties. Flanagan, 2002 Cal. LEXIS 1661, at *2-*3. See generally DeTeresa v. ABC, Inc., 121 F.3d 460, 464 (9th Cir. 1997). CBS, NBC, ABC, and CNN filed an amici curiae brief supporting the disapproved view of DeTeresa. See Flanagan, 2002 Cal. LEXIS 1661, at *1, *21. Of course, ABC has yet to apologize to Ms. DeTeresa in light of Flanagan despite its supposed policy of apologizing when it makes a mistake. See Walter Goodman, Critic’s Notebook; Covering Tobacco: A Cautionary Tale, N.Y. Times, Apr. 2, 1996, at C16, http://query.nytimes.com/search/full-page?res= 9A00E0DA1239F931A35757C0A960958260. The plaintiff in DeTeresa, who was represented by co-author Mr. Johnson, was secretly taped at her doorstep by an ABC newsmagazine. DeTeresa, 121 F.3d at 462-63.
[FN6]. Bill Kovach & Tom Rosenstiel, The Elements of Journalism 71 (2001).
In the end, the discipline of verification is what separates journalism from entertainment, propaganda, fiction, or art. Entertainment–and its cousin “infotainment”–focuses on what is most diverting. Propaganda will select facts or invent them to serve the real purpose–persuasion and manipulation. Fiction invents scenarios to get at a more personal impression of what it calls truth.
The trend is not new. For the past decade and a half, journalism has been slowly squeezed into a smaller and smaller corner of the expanding corporations that make up the communications industry. The values and norms of journalism have been steadily eroded as corporate managers order news division to produce more “infotainment” programs.
Bill Kovach, Big Deals, with Journalism Thrown in, N.Y. Times, Aug. 3, 1995, at A25, LEXIS, News, News Group File, All.
[FN7]. The Truman Show (1998 Paramount Pictures).
[FN8]. EdTV (1999 Universal Pictures).
[FN9]. See Howard Kurtz, Hidden Network Cameras: A Troubling Trend?, Wash. Post, Nov. 30, 1992, at A1 (quoting Richard Kaplan, then Executive Producer of “PrimeTime Live,” as saying he “would like to do a hidden-camera story every week”). The New York Times, arguably the most important newspaper in the United States, has written about the increasingly diminished standards in journalism. See, e.g., Bill Carter, TV News Magazine Shows Are Crowding One Another, N.Y. Times, Oct. 24, 1994, at D1. Carter quotes David F. Poltrack, then executive vice president of research for CBS, as distinguishing “evergreen stories,” which can interest anyone anytime, from topical stories derived from current news. Id. Poltrack lamented that, given the proliferation of television newsmagazines, the former “have been told over and over.” Id. As a consequence, “[newscasters] are really forced to push for tabloid subjects for all these competitive reasons. You wind up with pop psychology, pop culture, journo-pop, instead of real news.” Id. (quoting Howard Stringer, then president of the CBS Broadcast Group and a creator of the television newsmagazine “48 Hours”); see also, e.g., Jeff MacGregor, Diluting the News into Soft Half-truths, N.Y. Times, June 4, 1995, at H25.
Rather, it is the abandonment of the standards by which we judge these shows and the corruption of the rules by which they are produced that deserve our attention. For example, when did the hidden camera become the only camera? A gratuitous application of technology to heighten suspense borrowed from the tabloid stylebook, it is a hollow sideshow scam that cheapens us all. When used to bolster flimsy entrapment scenarios, these stories become nothing more than grainy little morality plays. Simplistic and empty, they serve no higher purpose than to create a villain, because everyone looks guilty when viewed through the wide-angle HatCam….
These shows no longer report the complex and nuanced stories we need to see, so much as they fabricate the mini-dramas and sketch the caricatures that we find so satisfying….
And through it all they help us delude ourselves into believing that the world is still binary: cops and robbers, cowboys and Indians, good and evil. They polarize the mortal spectrum until human behavior is no harder to catalogue than a black or white Stetson in a Hopalong Cassidy short.
Id.; see also, e.g., Felicity Barringer, Telling a Journalistic Coup from a Crime, N.Y. Times, July 26, 1998, at A1. Numerous commentators have echoed these sentiments. See, e.g., Robert Lissit, Gotcha, Am. Journalism Rev., Mar. 1995, at 17 [hereinafter Lissit, Gotcha]; Alan Mirabella, TV’s Magazine Shakeout, Colum. Journalism Rev., Mar./Apr. 1995, at 11.
[FN10]. Robert Lissit, Out of Sight, Am. Journalism Rev., Dec. 1994, at 27, 27-28 [hereinafter Lissit, Out of Sight].
[FN11]. See, e.g., Lyrissa Barnett Lidsky, Prying, Spying and Lying: Intrusive Newsgathering and What the Law Should Do About It, 73 Tul. L. Rev. 173 (1998); Randall P. Bezanson, Means and Ends and Food Lion: The Tension Between Exemption and Independence in Newsgathering by the Press, 47 Emory L.J. 895 (1998); Clay Calvert, Sifting Through the Wreckage of ABC Reportage: Little Victories, Big Defeats & Unbridled Media Arrogance, 19 Hastings Comm. & Ent. L.J. 795 (1997) [hereinafter Calvert, Sifting Through the Wreckage]; Epstein, supra note 4; Lori Keeton, What Is Really Rotten in the Food Lion Case: Chilling the Media’s Unethical Newsgathering Techniques, 49 Fla. L. Rev. 111 (1997); David A. Logan, Masked Media: Judges, Juries, and the Law of Surreptitious Newsgathering, 83 Iowa L. Rev. 161 (1997) [hereinafter Logan, Masked Media]; David A. Logan, “Stunt Journalism,” Professional Norms, and Public Mistrust of the Media, 9 U. Fla. J.L. & Pub. Pol’y 151 (1998) [hereinafter Logan, Stunt Journalism]; Andrew Jay McClurg, Bringing Privacy Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989 (1995); Elsa Y. Ransom, Home: No Place for “Law Enforcement Theatricals”–The Outlawing of Police/Media Home Invasions in Ayeni v. Mottola, 16 Loy. L.A. Ent. L.J. 325 (1995); Rodney A. Smolla, Will Tabloid Journalism Ruin the First Amendment for the Rest of Us?, 9 DePaul-LCA J. Art & Ent. L. 1 (1998); John W. Wade, The Tort Liability of Investigative Reporters, 37 Vand. L. Rev. 301 (1984); John J. Walsh et al., Media Misbehavior and the Wages of Sin: The Constitutionality of Consequential Damages for Publication of Ill-Gotten Information, 4 Wm. & Mary Bill Rts. J. 1111 (1996); Lyrissa C. Barnett, Note, Intrusion and the Investigative Reporter, 71 Tex. L. Rev. 433 (1992); Eduardo W. Gonzalez, Comment, “Get That Camera Out of My Face!” An Examination of the Viability of Suing “Tabloid Television” for Invasion of Privacy, 51 U. Miami L. Rev. 935 (1997); Nathan D. Leadstrom, Comment, Sanders v. American Broadcasting Companies, Inc.: Does It Mean the End to the Use of Hidden Cameras in Undercover Media Investigations?, 40 Washburn L.J. 143 (2000); Charles C. Scheim, Comment, Trash Tort or Trash TV?: Food Lion, Inc. v. ABC, Inc ., and Tort Liability of the Media for Newsgathering, 72 St. John’s L. Rev. 185 (1998); see also Jeffrey Rosen, The Unwanted Gaze (2000) (discussing the policy issues involved when dealing with privacy); see also Clay Calvert, Voyeur Nation: Media, Privacy and Peering in Modern Culture (2000) [hereinafter Calvert, Voyeur Nation] (focusing on the harmful effects of the media and ABCin particular on society by its intentional acts that invade privacy and pander to voyeuristic instincts). Calvert observes that the use of hidden cameras (by ABC’s Diane Sawyer in particular) is extraordinary because they are “hidden” and “[transport] us voyeuristically into a world we do not ordinarily see.” Calvert, Voyeur Nation, supra, at 27. He notes further that the media can “cultivate our demand for mediated voyeurism [use of hidden cameras]…by constantly pushing the level of sensationalism to a point where only new, more graphic and real images will satisfy audience demands.” Id. at 88; see also Bernard Goldberg, Bias: A CBS Insider Exposes How the Media Distort the News 145-62 (2002) (detailing at length the media’s bias and intolerance from the viewpoint of an insider critic). Goldberg cites a Freedom Forum/Roper Center poll that eighty-nine percent of journalists said they voted for Bill Clinton in 1992, as compared to forty-three percent of the non-journalist population! Goldberg, supra, at 123; see also William McGowan, Coloring the News: How Crusading for Diversity Has Corrupted American Journalism (2001); David Murray, Joel Schwartz & S. Robert Lichter, It Ain’t Necessarily So: How Media Make and Unmake the Scientific Picture of Reality (2001).
[FN12]. Neil Hickey, Money Lust: How Pressure for Profit is Perverting Journalism, Colum. Journalism Rev., July/Aug. 1998, at 28 [hereinafter Hickey, Money Lust].
[FN13]. Bill Kovach et al., A First Step to Change: A Commentary on the Findings, Committee for Concerned Journalists, at http:// www.journalism.org/surveycomment.html (last visited Jan. 12, 2002) [hereinafter Kovach, A First Step] (analyzing a national survey of the news media by the Committee of Concerned Journalists and the Pew Research Center for The People & The Press). Profits are substantial: ABC News earned a pre-tax profit of $55 million in 1998; NBC News earned a pre-tax profit of $200 million the same year. Marc Gunther, The Transformation of Network News: How Profitability Has Moved Networks Out of Hard News, Nieman Reports, Summer 1999, at 20, 28-29 [hereinafter Gunther, Transformation]. The Columbia Journalism Review, arguably the most respected publication for journalists, concluded in 1998 that more than any other time in history, news is “hurt by a heightened, unseemly lust at many companies for ever greater profits.” Hickey, Money Lust, supra note 12. The newsmagazines seem to have been an effective–albeit quick-fix– solution to declining market share and cost-cutting measures. In 1993, newsmagazines accounted for $670 million in revenue; “60 Minutes” and “48 Hours” generated about $200 million and $105 million respectively for CBS; “20/20” and “PrimeTime Live” brought in $150 million and $85 million respectively for ABC; “Dateline” brought in $90 million for NBC. David Zurawik & Christina Stoehr, Money Changes Everything, Am. Journalism Rev., Apr. 1993, at 26, 29 (citing estimates from Broadcasting magazine). These programs became irresistible because roughly half of the revenue is profit. Id.
[FN14]. Logan, Stunt Journalism, supra note 11, at 155-56 n.43; see also Peter S. Canellos, ABC Ordered to Pay $5.5 M to Food Lion: Award Seen as Rebuke to Media, Boston Globe, Jan. 23, 1997, at A1 [hereinafter Canellos, ABC Ordered to Pay] (“In its relatively low-rated first season, the show broadcast two undercover pieces. Thereafter, it sharply increased the number of hidden- camera segments, until they averaged more than 20 per season. Ratings went up.”).
[FN15]. Mirabella, supra note 9 (quoting ABC Senior Vice President, Alan Wurtzel). Victor Neufeld, then of “20/20,” another ABC newsmagazine, admitted in 1999, “Our obligation is not to deliver the news. Our obligation is to do good programming.” Gunther, Transformation, supra note 13, at 27.
[FN16]. See, e.g., Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (A grocery store chain sued ABC for secret videotaping of its food handling practices.); Med. Lab. Mgmt. Consultants v. ABC, Inc., 30 F. Supp. 2d 1182 (D. Ariz. 1998) (A medical laboratory sued ABC for the network’s use of false pretenses to gain entry into the laboratory and secretly videotape meetings of officers therein.); Sanders v. ABC, Inc., 978 P.2d 67 (Cal. 1999) (An employee of a telepsychic marketing company sued ABC for covertly taping workplace conversations.). But ABC is no stranger to these suits, nor to being chastised as a result. See, e.g., Benford v. ABC, Inc., 554 F.Supp. 145 (D. Md. 1982). There, ABC surreptitiously filmed the plaintiff, an insurance salesman making his standard cancer insurance presentation in the home of another to individuals who had falsely represented that they were interested in purchasing insurance from him. Id. at 147. The court found as a matter of law that the plaintiff had a reasonable expectation of privacy, reasoning:
The plaintiff did not personally expect, nor did he intend, for his remarks to be intercepted, partly for broadcast to the American public on national television. Certainly, no reasonable person entering a private home to sell insurance under similar circumstances would have anticipated his conversation would be electronically monitored.
Id. at 154.
[FN18]. Id. at 510, 524. Under the questionable general rule of the common law, corporations have no protected interest in privacy. David A. Elder, The Law of Privacy § 1:4 (1991 & Supp. 2001) [hereinafter Elder, Privacy]. Consequently, other tort theories of liability must be used.
[FN19]. 978 P.2d 67 (Cal. 1999) (unanimous). Sanders (co-author Mr. Johnson represented the plaintiffs on an appeal; he and co-authors Mr. Rishwain and Professor Elder wrote the briefs to the California Supreme Court in this landmark case) involved an attempt by ABC, on its newsmagazine program “PrimeTime Live,” to expose the psychic telemarketing industry. Id. at 69- 70. ABC paid an individual to pose as a psychic to get a job with a psychic telemarketing company. Id. After being hired, the spy wore a hidden camera and went around the workplace engaging other psychics in conversations in an attempt to elicit and record inculpatory information about the company and the psychic profession for “PrimeTime Live.” Id.
After the surreptitiously recorded footage was broadcast to millions of viewers on national television, two of the psychics sued ABC for invasion of privacy by intrusion and for violation of California Penal Code section 632 prohibiting electronic eavesdropping on confidential communications without the consent of all parties so long as the party suing had a reasonable expectation of privacy during the communication. Id. at 70. See generally Kersis v. Capital Cities/ABC, Inc., No. BC 077553, 1994 WL 774531 (Cal. Super. Ct. (L.A.) Apr. 25, 1994).
The jury awarded actual and punitive damages, finding that the use of the hidden camera constituted an intrusion into one psychic’s solitude and seclusion. Sanders, 978 P.2d at 70-71. A divided court of appeal reversed the judgment for the psychic, ruling that the jury had actually found that the psychic had no reasonable expectation of privacy during conversations with the ABC operative because some coworkers might have been able to hear the conversations. Id. See generally Sanders v. ABC, Inc., 60 Cal. Rptr. 2d 595 (Ct. App. 1997).
The California Supreme Court reversed and remanded, finding that the psychic had a limited right of privacy against being covertly videotaped by a journalist in his workplace–even if his or her interaction with that journalist may have been witnessed, and his conversations overheard, by his coworkers. Sanders, 978 P.2d at 79-80. The historic decision held that while someone may lack a reasonable expectation of privacy in a conversation because it might be seen or heard by some fellow employees, he or she may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter’s surreptitious taping of that conversation. Id. at 78; see also Marc Gunther, Hidden Camera, Hidden Agenda, Detroit Free Press, May 14, 1995, at H1 [hereinafter Gunther, Hidden Camera] (discussing Sanders).
Another important, precedent-setting, related case is Shulman v. Group W. Prods., Inc., 955 P.2d 469 (Cal. 1998). The Shulman case involved two plaintiffs, a mother and a son, who were injured in a severe car accident. Id. at 475. A rescue helicopter dispatched to the scene of the accident carried not only medical personnel but also a video camera operator shooting footage for the defendant’s television rescue series “On Scene: Emergency Response.” Id. The nurse wore a wireless microphone as she tended to the victims; the microphone picked up the conversation the nurse had with the mother as she pled for her death, saying repeatedly, “I just want to die” while pinned under the vehicle. Id. at 475-76.
At the scene of the accident, the video operator shot gruesome footage of the mother and son as they were rescued using “the jaws of life” including lingering visuals of the victims’ bloody wounds and jutting limbs, as well as recording the medical personnel’s confidential questions about the victims’ medical condition. Id. at 475-76. The operator continued to record the mother back inside the helicopter on the way to the hospital. Id. at 476. The mother and son never consented to the taping. Id. Subsequently, the footage and sound were edited into a nine-minute piece with a narrative voice-over–without the victims’ knowledge or permission–and broadcast as a segment of “On Scene: Emergency Response.” Id. at 475. The trial court granted the defendant’s motion for summary judgment on the plaintiff’s causes of action for invasion of privacy–one for public disclosure of private facts and the other for tortious intrusion. Id. at 477. The court of appeals, however, bifurcated its analysis of the taping into two distinct time frames–the scene of the accident itself and the scene inside the helicopter. Id.
Filmed events at the scene of the accident were not actionable, according to the court, because the plaintiffs could not have a reasonable expectation of privacy in a public setting. Id. at 477. However, the court found the footage captured inside the helicopter to be fully actionable and analogized the setting to that of a private hospital room. Id. Thus, the appeals court found triable issues of fact existed as to the mother’s claim regarding publication of private facts by broadcasting events recorded inside the helicopter and legal error on the trial court’s part as to both plaintiffs’ intrusion claims related to the inside of the helicopter. Id.
On appeal, the California Supreme Court added yet another twist to the case. The court affirmed the court of appeal’s decision regarding the plaintiffs’ intrusion claims inside the helicopter but reversed its finding as to the mother’s claim of publication of private facts regarding helicopter footage and audio. Id. Stating that the challenged material was substantially relevant to the newsworthy subject matter of the broadcast, the court found that the use of the tape of the mother at the accident scene and inside the helicopter was not actionable under a private facts theory, as it did not constitute a “morbid and sensational prying into private lives for its own sake.” Id. at 488 (citations and quotations omitted).
However, the California Supreme Court went two critical steps further than the court of appeals regarding the plaintiffs’ intrusion claims. In addition to a viable intrusion claim regarding the helicopter footage, the court held that the mother had a triable issue of fact regarding the intrusion of the camera operator recording and amplifying her conversations at the accident scene. Id. at 490. More specifically, the court found that the mother was entitled to a degree of privacy in her conversations with the medical personnel at the accident scene. Id. at 491. And as to the offensiveness of the conduct, the court reasoned that given the victims’ confusion and vulnerability a jury could find that the defendants’ recording of intimate conversations with rescue workers at the scene and in the helicopter to be highly offensive to the reasonable person. Id. at 493-94 (citing Miller v. NBC, 232 Cal. Rptr. 668, 678 (1986)). Ultimately, the court held that the press is not exempt from generally applicable civil and criminal laws–including California’s Penal Code section 632 prohibiting the recording of confidential communications. Id.
[FN20]. See, e.g., Timothy Noah, Sorting Out What the Hidden Camera Saw, U.S. News & World Rep., Dec. 22, 1997, at 64. After ABC was sued in Food Lion and Sanders in 1993, and until the decisions became final, it continued to engage in the same kind of conduct it was sued for in those cases, especially “stings” and stories involving impersonation. Id. However, those who espouse the use of the hidden camera are now somewhat chastened and aware they do so at their own peril. See, e.g., Neil Hickey, Climate of Change, Colum. Journalism Rev., Sept./Oct. 2000, at 52 [hereinafter Hickey, Climate of Change]. Still, the hidden camera has a strangle hold on “PrimeTime Live” that it just can’t shake. On May 17, 2001, its hidden camera struck again, targeting police officers in New York and Los Angeles, attempting to “sting” them to see if they would return wallets that ABC said were lost. See Testing Police Honesty, at http:// more.abcnews.go.com/sections/primetime/2020/primetime_010517&uscore; wallets1.html (May 17, 2001). The cops returned the wallets, ruining ABC’s hidden camera “experiment,” but taxi cab drivers were not so fortunate on the same broadcast. Id.; see also Marc Gunther, The House That Roone Built 231 (1994) [hereinafter Gunther, House Roone Built] (detailing a history of ABC News and revealing the corporate culture that produced this sad need for invasions of privacy to be offered up to the public as entertainment). In respect of prime time magazine shows, “[e]ntertainment value, not news judgment, shape[s] story selection, much to the chagrin, once again, of ABC traditionalists.” Gunther, House Roone Built, supra, at 94.
An hour long news program costs half of what ABC otherwise pays for entertainment shows, about $400,000 for an hour, and generates more profits than all but the most popular entertainment shows. Id. at 231 (referencing “60 Minutes” and “20/20”). During the 1988-1989 season, “20/20” generated $50 million a year in revenues. Id. at 274. It is important that ABC never airs its dirty linen in public, which according to Arledge has helped it enormously. Id. at 248. By 1988, the three networks became obsessed with visuals, and “the networks could not resist compelling footage, even if it was manufactured news.” Id. at 269. Sam Donaldson’s contract in 1992 was tied to his ratings on “PrimeTime Live.” Id. at 346. “PrimeTime Live” specializes in hidden camera stories, and its ethics are in great question because it manufactures stories. Id. at 352. ABC News is premised upon and required to make money, and Arledge was eased out because although he made plenty for ABC, it was not enough. Id. at 362.
[FN21]. See Brian Carnell, Dateline Covers the Howard Baker Controversy, at http://www.animalrights.net/articles/2001/000079.html (May 30, 2001). One astonishing recent episode of “Dateline,” broadcast May 29, 2001, was a segment that established that the hidden camera can be a lie. Id. The broadcast detailed how a veterinarian who had been set up with a hidden camera by PETA (People for the Ethical Treatment of Animals) prevailed at trial in a contest over its verisimilitude, establishing that the primary justification for the hidden camera, i.e., that the camera does not lie, is now recognized as a national issue for being a canard. Id.
However, consider “The Sting,” which aired on “PrimeTime” (the “Live” has now been dropped), on June 14, 2001 and was rebroadcast on December 27, 2001. The Sting, at http://more.abcnews.go.com/sections/primetime/2020/primetime_ 010614&uscore;homerepairs_feature.html (June 14, 2001). This episode showed numerous instances of dishonest repairmen at a home on Long Island. Id. The house, called the “sting house,” had eight hidden cameras, all wired by ABC. Id. The story, conducted with the assistance of the district attorney, raises numerous ethical concerns. Id. The reporter in this “sting” was Diane Sawyer, who was the correspondent in the Food Lion case, the anchor in the Sanders case, and was named as a defendant in Hornberger v. ABC, Inc., No. L1078697 (N.J. Super. Ct. 2000), and Med. Labs. Mgmt. Consultants v. ABC, Inc., 30 F. Supp. 2d 1182 (D. Ariz. 1998). Id. In the interest of full disclosure, co-authors Mr. Johnson and Mr. Rishwain are trial and appellate counsel, and Professor Elder is of counsel in the appeals of these latter two cases. Ms. Sawyer has been lambasted by Frank Rich of The New York Times and cultural scholar Neal Gabler for not being a serious journalist but rather a celebrity. See Neal Gabler, Life the Movie, How Entertainment Conquered Reality 154-55 (1999). She has arguably been the most public advocate of hidden cameras of all on-air news persons. First, this “sting” by ABC is similar to a media ride-along scenario, which encourages police to show off for the camera, to tout their exploits, as this show does. Second, it appears as though ABC is in league with the police in setting up the sting. This is not the role of the press. If the police want to film, let them film. Why is ABC involved–so good hidden camera footage could be obtained? Third, why do the faces of the wrongdoers have to be shown? They may have made a mistake, but is it fair to punish them in front of tens of millions of people? Fourth, why are stories so old and routine as this being done? Fifth, why was it necessary for Diane Sawyer to invade a shop demanding to speak to the owner? This is a “gotcha” tactic that serves no purpose other than to embarrass and convey a false and negative impression. Who in their right mind would give an interview in such circumstances? The sole purpose of the tactic is to embarrass and heighten the emotion of the piece. Lissit, Out of Sight, supra note 10, at 32 (“It’s Sawyer’s job to come in after the undercover work has been done and confront people with the results.”).
See also Hanlon v. Berger, 526 U.S. 808 (1999); Wilson v. Layne, 526 U.S. 603 (1999). In Hanlon, CNN teamed up with federal investigators to jointly plan the execution of the search warrant of a private ranch. Hanlon, 526 U.S. at 809; see also Supreme Court Puts Educators, Police on Notice (May 24, 1999), at http://www.cnn.com/US/9905/24/scotus.01/. The partnership was memorialized by a written contract so that the officials could assist the media in obtaining material for their commercial programming. See Media Participation in Search Risks Liability for Media and Government Agents, Appellate Decisions Noted (Dec. 1997), at http:// www.appellate-counsellor.com/newsletter/9712.htm [hereinafter Media Participation]. The plaintiffs claimed that their Fourth Amendment rights were violated by the officers and CNN and claimed that CNN trespassed and violated the Federal Wiretap Act. Id. The Montana District Court granted the defendant’s motion for summary judgment. See Timeline-Hanlon v. Berger, First Amendment Center, at http://www.freedomforum.org/fac/98- 99/Hanlon_time.htm (last visited Jan. 19, 2002) [hereinafter Hanlon Timeline]. The court of appeals, however, reversed. Id. The court found that the agents were not entitled to qualified immunity and CNN, by acting in concert with federal agents and willfully participating in the search warrant execution, did not operate under color of state law. Media Participation, supra. The court cited CNN’s contract with the agents, the fact that the government shared confidential information with CNN that was under seal, and that the record suggested the government officers planned and executed the search in a manner designed to enhance its entertainment rather than law enforcement value by, for example, engaging in conversation with the plaintiff for the sound bite benefit of the cameras. Id. Furthermore, the court held that CNN was on the hook for trespassing. See Hanlon Timeline, supra.
On appeal, the Supreme Court held that while the plaintiffs had stated a Fourth Amendment claim, the government agents were entitled to the defense of qualified immunity, but not as to future conduct. Id. The remaining claims against CNN, however, stood. See id.
[FN22]. MacGregor, supra note 9.
[FN23]. See Meredith O’Brien, A Watchful Eye, Quill, June, 2001, at 10 (“Hidden camera footage is sexy. It smacks of hard-nosed investigative reporters hiding in the shadows waiting to catch the bad guys…”); see also J. Dygert, The Investigative Journalist: Folk Heroes of a New Era (1976). Defense lawyers love to trot out Nellie Bly and Upton Sinclair as stellar examples of the benefits of undercover journalism, but they should think twice about doing so. Upton Sinclair wrote The Jungle in 1905 as a novel. Upton Sinclair, The Autobiography Of Upton Sinclair 109-10 (1962). He never impersonated anyone; rather he walked around the stockyards and interviewed workers to obtain his information. See id. Further, he was a radical socialist, known as a “propagandist novelist,” who first published his novel as a serial in The Appeal To Reason, a Socialist weekly. Robert B. Downs, Afterword to Upton Sinclair, The Jungle 343, 343-44 (1960). Further, Sinclair did not publish photographs obtained by trespass or fraud, nor did he invade the privacy of or embarrass by name any individuals. See id. at 344-49.
Nellie Bly was a “self-promoting sensationalizer and an embarrassment to the craft,” most interested in her own fame and held in disrepute by many of her peers. Paul Starobin, Food Lion Expose Was Stunt Journalism: ABC Could’ve Done a Devastating Story Without the Tricks, Star-Tribune (Minneapolis-St. Paul), Jan. 30, 1997, at A21. Bly’s newspaper, The World, engaged in “sensation-mongering [that] was the object of much industry ridicule, with its exploitative use of women reporters especially singled out.” Brooke Kroeger, Nellie Bly: Daredevil, Reporter, Feminist 225 (Times Books 1994). In Bly’s day, there was no ban on impersonation to get information, and she claimedthat it was against her principles to lie to get information, though she did not adhere to the same. Id. at 101. Moreover, in her famous story on mental asylums, Bly got prosecutorial immunity before proceeding. Dorothy Rabinowitz, ABC’s Food Lion Mission, Wall St. J., Feb. 11, 1997, at A20 (“Hers was, of course, a time–long before journalists had come to view themselves as an elite society–in which reporters were more likely to concern themselves with deceit and its consequences.”). By contrast, the greatest muckrakers shunned such ruses. An example is Ida Tarbell who toppled the Standard Oil Monopoly of John D. Rockefeller “by the tireless bird-dogging” of public records and other documents. Starobin, supra; see also Susan Paterno, The Lying Game, Am. Journalism Rev., May 1997, at 40, 42 (quoting Robert Miraldi to the effect that the best of the early twentieth century journalist reformer types “were all above board, [who] all identified themselves as reporters”).
[FN24]. MacGregor, supra note 9 (“Simplistic and empty, they serve no higher purpose than to create a villain, because everyone looks guilty when viewed through the wide-angle HatCam.”). Former “60 Minutes” producer Barry Lando revealed the failings of these stories and the modus operandi of “60 Minutes”:
What it means is that investigative reports on CNN or 60 Minutes or anywhere else usually painted starkly: black and white, the bad guys and good guys. In fact, most of life is played out in shades of gray. When you start digging into any supposed scandal you usually find that the bad guy is not all that bad; the good guy is not all that good, and often the supposed villain in not really a villain at all. Such subtleties, though fascinating to uncover, don’t make for the kind of clear-cut morality plays that are the staple of programs like 60 Minutes.
The producer frequently finds he no longer has “a story.” Usually producers and correspondents recognize when they arrive at that point and drop the project. But not always. It’s when the revelation occurs after you have already committed several weeks and tens of thousands of dollars to a report that the process is most painful, and the temptation to continue, in spite of what you have uncovered, is greatest.
…The fact is there is no first-class editorial person at 60 Minutes who supervises the producers in any serious way, asking for sources, constantly probing for weaknesses. Temptations to distort abound.
Most taped interviews, for example, run at least half an hour in length. But it’s rare that the producer uses more than a couple of minutes of any particular character; usually its [sic] only twenty or thirty seconds. The choice of those sound bites is critical. They’re simple to manipulate; it’s easy to delete bothersome denials of qualifying phrases.
60 Minutes Laid Bare, Brill’s Content, Oct. 1998, at 85, 87.
[FN25]. See infra text accompanying notes 120-21, 130-38.
[FN27]. See sources cited supra note 19 (discussing Sanders).
[FN28]. See Elder, Privacy, supra note 18, § 2:5.
[FN29]. See id. § 2:6.
[FN30]. See discussion infra Part IV.
[FN31]. See Elder, Privacy, supra note 18, § 1:4.
[FN32]. See discussion infra Part II.
[FN33]. See discussion infra Part II.
[FN34]. See discussion infra Part II.
[FN36]. Id. at 285-86. Note that the Court has recognized the close analogue of this standard to the scienter requirement in the law of deceit, i.e., no liability for the “honest liar.” Bose Corp. v. Consumers Union, 466 U.S. 485, 502 n.19 (1984).
[FN37]. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 (1971). The terms are used interchangeably. See David A. Elder, Defamation: A Lawyer’s Guide § 7:5, at 64-65 & n.25 (1993) [hereinafter Elder, Defamation]. Note that this elevated evidentiary standard is only as to constitutional malice (i.e., knowing or reckless disregard), not as to falsity, although the Supreme Court has noted, but not resolved, that issue. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 661 & n.2 (1989). Two cases have limited the clear and convincing evidence standard to constitutional malice and concluded that all other aspects of defamation are subject to the preponderance standard. Goldwater v. Ginzburg, 414 F.2d 324, 341 (2d Cir. 1969), cert. denied, 396 U.S. 1049 (1970), reh’g denied, 397 U.S. 978 (1970); Rattray v. City of Nat’l City, 51 F.3d 793, 801-02 (9th Cir. 1994), cert. denied, 516 U.S. 820 (1995). The District of Columbia and Third Circuits have noted but not resolved the issue. Tucker v. Fischbein, 237 F.3d 275, 285, 288 n.5 (3d Cir. 2001); Tavoulareas v. Piro, 817 F.2d 762, 786-87 n.33 (D.C. Cir. 1987), cert. denied, 484 U.S. 870 (1987). But see Firestone v. Time, Inc., 460 F.2d 712, 722-23 (5th Cir. 1972) (Bell, J., concurring) (finding the clear and convincing requirement as to falsity “implicit” in the New York Times standard), cert. denied, 409 U.S. 875 (1972).
[FN41]. See Elder, Defamation, supra note 37, § 9:1[B], at 67. Note that private persons suing as to matters of public concern in libel cases may collect actual damages under a minimal fault/negligence standard but may collect presumed or punitive damages only if the New York Times standard is met. Gertz v. Robert Welch, Inc., 418 U.S. 323, 346, 350 (1974). The status/fault issue as to private persons in false light cases is unclear. See Elder, Privacy, supra note 18; see also sources cited infra note 369.
[FN42]. Elder, Defamation, supra note 37, § 9:1[D], at 14-15.
[FN43]. Id. § 9:1[E], at 16.
[FN44]. See Ball v. E.W. Scripps Co., 801 S.W.2d 684, 691 (Ky. 1990), cert. denied, 499 U.S. 976 (1991) (rejecting very lengthy and confusing “jury charges”–forty-one in number, forty-seven pages in length followed by lengthy interrogatories–in favor of the “bare bones” variety, deeming the former “unsuitable and unreasonable”).
[FN45]. See, e.g., Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758 (Ky. 1990), cert. denied, 498 U.S. 1047 (1991). The Warford approach has been described as an example of “the well-constructed collage” that plaintiffs must construct to prove constitutional actual malice. Elder, Defamation, supra note 37, § 7:1, at 2-3. In Warford, the court delineated numerous items of objective evidence that collectively supported a finding of constitutional malice in the case of a college basketball recruiter defamed by charges of recruiting improprieties. Warford, 789 S.W.2d at 772. The defendant reporters made minimal efforts to verify the credibility of their source, a student athlete, despite the plaintiff’s denials just prior to publication and the plaintiff’s request that the reporter contact several individuals, including the source’s parents, friends, and high school coaches. Id. The defendants also failed to contact anyone at the plaintiff’s university, including his boss, prior to the original publication. Id. Moreover, the defendants failed to conduct any further investigation prior to publication of the reprint, despite denials by the plaintiff and others. Id. In addition, the defendants conceded they were aware of the seriousness of the charge and the potential harm to the plaintiff from the pervasive dissemination to all future college and university employers. Id. Furthermore, the defendants delayed in contacting the plaintiff until just prior to the original publication despite the absence of a time deadline, permitting a jury to conclude the defendants “were committed to running the story without regard to its truth or falsity.” Id. Finally, the defendants transformed the source’s ambiguous statement into “the most potentially damaging alternative” creating a “jury question on whether the publication was indeed made without serious doubt as to its truthfulness.” Id. at 772-73 (quoting Rebozo v. Wash. Post Co., 637 F.2d 375, 382 (5th Cir.)).
[FN46]. See, e.g., McFarlane v. Esquire Magazine, 74 F.3d 1296, 1304-05, 1308 (D.C. Cir. 1996) (denying the plaintiff’s libel claim despite the defendants’ awareness that the independent-contractor author relied on a source viewed as a liar by several of the author’s other sources and that the article itself quoted or cited to several factors discrediting the source’s truthfulness), cert. denied, 519 U.S. 809 (1996); Perez v. Scripps-Howard Broad. Co., 520 N.E.2d 198, 204 (Ohio 1988) (upholding summary judgment where the defendant relied on a source with a history of drug trafficking who implicated the plaintiff, a police captain), cert. denied, 488 U.S. 870 (1988). See generally Elder, Defamation, supra note 37, § 7:2, at 33 n.54 (describing Perez as a “dubious decision”); id. § 7:2, at 217 (Supp. 2001) (declaring the McFarlane v. Esquire Magazine court reached a “dubious… conclusion”).
[FN48]. See Elder, Defamation, supra note 37, § 7:1, at 2-3, § 7:2, at 19-20 & n.96; see also cases cited infra note 57.
[FN50]. Eastwood v. Nat’l Enquirer, Inc., 123 F.3d 1249, 1253 (9th Cir. 1997) (“As we have yet to see a defendant who admits to entertaining serious subjective doubt about the authenticity of an article it published, we must be guided by circumstantial evidence. By examining the editors’ actions we try to understand their motives.”); Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1569 (D.C. Cir. 1984) (“The plaintiff need not obtain any admission of fault from the defendant.”), vacated on other grounds, 477 U.S. 242 (1986); Goldwater, 414 F.2d at 343. If this were not the law, “mere swearing could, as a matter of law, defeat any action to which the New York Times principles are applicable.” Guam Fed’n of Teachers v. Ysrael, 492 F.2d 438, 439 (9th Cir. 1974), cert. denied, 419 U.S. 872 (1974).
[FN52]. See Elder, Defamation, supra note 37, § 7:1, at 2.
[FN54]. See Elder, Defamation, supra note 37, § 7:1, at 2.
[FN57]. Goldwater, 414 F.2d at 342; see also Harte-Hanks, 491 U.S. at 668 (“[A] plaintiff is entitled to prove defendant’s state of mind through circumstantial evidence.”); Khawar v. Globe Int’l, Inc., 965 P.2d 696, 709 (Cal. 1998) (“To prove this culpable mental state, the plaintiff may rely on circumstantial evidence, including evidence of motive and failure to adhere to professional standards.”), cert. denied, 526 U.S. 1114 (1999); Sprague v. Walter, 656 A.2d 890, 907 (Pa. Super. Ct. 1995) (“Any competent evidence can be used to establish actual malice.”), appeal denied, 670 A.2d 142 (Pa. 1996).