No. 97-2492, 97-2564

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Food Lion, Incorporated, Plaintiff-Appellee/Cross-Appellant, —against— Capital Cities/ABC, Inc.; Lynne Litt, a/k/a Lynne Neufes; ABC Holding Company, Incorporated; American Broadcasting Companies, Incorporated; Richard N. Kaplan; Ira Rosen; Susan Barnett, Defendants-Appellants/Cross-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BRIEF OF INVESTIGATIVE REPORTERS AND EDITORS, INC. AS AMICUS CURIAE

SIMPSON THACHER & BARTLETT Attorneys for Amicus Curiae Investigative Reporters and Editors, Inc. 425 Lexington Avenue New York, NY 10017-3954 (212) 455-2000

DAVID B. SMALLMAN, ESQ. Of Counsel.

TABLE OF CONTENTS Page Table of Authorities ....................................................................................................................... ii Interest of Investigative Reporters and Editors, Inc. ...................................................................... 1 Statement of Subject Matter and Appellate Jurisdiction ................................................................ 4 Statement of Issues Presented for Review ..................................................................................... 4 Statement of the Case ..................................................................................................................... 4 Statement of Related Cases and Proceedings ................................................................................ 4 Statement of Facts .......................................................................................................................... 5 Summary of Argument .................................................................................................................. 7 ARGUMENT ................................................................................................................................. 9 I. THE JUDGMENT ENTERED BY THE DISTRICT COURT VIOLATES FIRST AMENDMENT PROTECTION FOR NEWSGATHERING ACTIVITIES AND CONTRAVENES LONGSTANDING PRACTICES OF FREEDOM OF THE PRESS ....................................................................................... 9 A. The Right of the Press to Gather News Must Be Protected Under the First

Amendment ........................................................................................................... 12 B. The Historical Practices and Valuable Role of the Free Press in America

Should Remain Unhindered .................................................................................. 17 1. Routine Press Practices Have Traditionally Included Investigative

and Undercover Reporting ........................................................................ 17 2. Practices Antedating and Attending the Adoption of the Press

Clause Indicate that Broad Protection Was Intended for the Right to Gather and Publish News ...................................................................... 25

II. THE FIRST AMENDMENT BARS ENFORCEMENT OF CLAIMS BASED UPON STATE LAWS THAT COMPEL DISCLOSURE OF IDENTITY, ASSOCIATION, AND INVESTIGATORY PURPOSE UNDER THE CIRCUMSTANCES PRESENTED HERE .............................................. 28 Conclusion .................................................................................................................................... 39 Addendum

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TABLE OF AUTHORITIES Page CASES Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) ........................................................................................32 American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997) ...............................................................................29, 34 Bates v. City of Little Rock, 361 U.S. 516 (1960) ........................................................................................................................11, 31 Branzburg v. Hayes, 408 U.S. 665 (1972) .....................................................................................12 Clifton v. Federal Election Commission, 114 F.3d 1309 (1st Cir. 1997) ........................................................................................................29 Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ..................................................................................................................................9, 28 Estes v. Texas, 381 U.S. 532 (1965) ..............................................................................................16 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) .......................................................................................................................15 Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1217 (D.N.C. 1996) ..................................................................................................30 Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224 (D.N.C. 1996) ..................................................................................................29 Garris v. Hanover Ins. Co., 630 F.2d 1001 (4th Cir. 1980) .........................................................................................................................5 Grosjean v. American Press Co., 297 U.S. 233 (1936) .......................................................................................................................................12, 15 Herbert v. Lando, 441 U.S. 153 (1979) ...................................................................................12, 15 Lovell v. City of Griffin, Ga., 303 U.S. 444 (1938) ........................................................................................................................13, 24 Marsh v. Alabama, 326 U.S. 501 (1946) .......................................................................................31 McIntyre v. Ohio Elections Comm'n,

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514 U.S. 334 (1995) ............................................................................................................... passim NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................................................................................11, 31 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ............................................................16, 24 Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 223 Cal. Rptr. 58 (1986) ...................................................................................28 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) .......................................................................................................................16 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) .......................................................................................................................13 Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir. 1991) .........................................................................................................................14 Rice v. Paladin Enterprise, Inc., 128 F.3d 233 (4th Cir. 1997) ................................................................................................................................16 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ................................................12, 15 Saxbe v. Washington Post Co., 417 U.S. 843 (1974) .....................................................................13 Shain v. United States, 978 F.2d 850 (4th Cir. 1992) ..................................................................................................................................9 Shelton v. Tucker, 364 U.S. 479 (1960) .........................................................................................30 Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) ..........................................................................................................................12, 29 Talley v. California, 362 U.S. 60 (1960) ......................................................................................................................11, 17, 31, 37 Thomas v. Collins, 323 U.S. 516 (1945) ........................................................................................31 Thornhill v. Alabama, 310 U.S. 88 (1940) ....................................................................................15 United States v. Morison, 844 F. 2d 1057 (4th Cir. 1988) ..............................................................................................................12, 13, 16, 28 United States v. Robel, 389 U.S. 258 (1967) .................................................................................31

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United States v. Steelhammer, 539 F.2d 373 (4th Cir. 1976) ................................................................................................................................14 Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997) ................................................................................................................................13 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ..........................................................................................................................15, 16 RULES Fed. R. Evid. 201 (f) advisory committee's note ..............................................................................................................................5 CONSTITUTIONAL PROVISIONS AND STATUTES U.S. CONST. amend. I ............................................................................................................ passim U.S. CONST. amend. XIV .........................................................................................................13, 31 N.C. Gen. Stat. § 20-137.2 (1997) .................................................................................................33 N.C. Gen. Stat. § 14-118.2 (1997) .................................................................................................33 N.C. Gen. Stat. § 14-276.1 (1997) ...........................................................................................32, 33 N.C. Gen. Stat § 75-1.1 (1997) .............................................................................................. passim 21 U.S.C. §§ 601-95 (1988) ...........................................................................................................21 OTHER AUTHORITIES James A. Albert, A History of Attempts by the Department of Agriculture to Reduce Federal Inspection of Poultry Processing Plants--A Return to the Jungle, 51 LA. L. REV. 1183 (1991) ........................................................21 David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455 (1983) ...........................................................................................25 Stephen Ansolabehere, THE MEDIA GAME: AMERICAN POLITICS IN THE TELEVISION AGE (1993) .............................................................................................................................................24

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James L. Aucoin, I.R.E.: INVESTIGATIVE REPORTERS & EDITORS, THE ARIZONA PROJECT, AND THE EVOLUTION OF AMERICAN INVESTIGATIVE JOURNALISM (1997) .................................................................17, 20 Leigh A. Aughenbaugh, The Demise of the Foreign-Natural Test in North Carolina - Goodman v. Wenco Foods, 16 CAMPBELL L. REV. 275 (1994) ......................................................................................................................................21 Russ W. Baker, Truth, Lies, and Videotape; PrimeTime Live and the Hidden Camera, 32 COLUM. J. REV. 25 (July/August 1993).........................................................................................................................11 Lyrissa C. Barnett, Note, Intrusion and the Investigative Reporter, 71 TEX. L. REV. 433 (1992) .............................................................................................................................19 Nellie Bly, THE MADHOUSE (1888) ...............................................................................................21 David S. Bogen, The Origins of Freedom of Speech and Press, 42 MD. L. REV. 429 (1983) ..............................................................................25 Zechariah Chafee, Jr., THE BLESSINGS OF LIBERTY (1956) ...........................................................17 Mitchell V. Charnley & Blair Charnley, REPORTING 337 (4th ed. 1979) ......................................14 Tom A. Collins, The Press Clause Construed in Context: The Journalists' Right of Access to Places, 52 MO. L. REV. 751 (Fall 1987) ....................................................................................25 Henry J. Cordes, E. Coli Became Deadly in Nebraska; `84 Outbreak Gave Clues to Mutant Bacteria; E. Coli's Attack on the Body, THE OMAHA WORLD-HERALD, December 14, 1997 ........................................................................5 Courtney, THE SECRETS OF OUR NATIONAL LITERATURE (1908) ........................................................................................................................18 Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal, 105 YALE L. J. 449 (1995) .............................................................................................................19

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Timony B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927 (1992) ......................................................................25 David F. Freedman, Press Passes and Trespasses: Newsgathering on Private Property, 84 COLUM. L. REV. 1298 (1984) ....................................................................................15 George Freeman, et al., `60 Minutes' and the Law: Can Journalists Be Liable for Tortious Interference with Contract?, 68-AUG N.Y. ST. B.J. 24 (1996) .................................................................................................................................28 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) .....................................................................................24 George Hay, An Essay on the Liberty of the Press, Respectfully Inscribed to the Republican Printers Throughout the United States (Philadelphia, 1799) ............................................................................................................26 George Hay, An Essay on the Liberty of the Press, Showing, That the Requisition of Security for Good Behavior from Libellers, is Perfectly Compatible with the Constitution and Laws of Virginia (Richmond, Va., 1803) ...................................................................................................................27 Ward Heeler, THE ELECTION CHICAGO STYLE (1977) ...................................................................37 James D. Horan, MATHEW BRADY: HISTORIAN WITH A CAMERA (1955) ..................................................................................................................19 Tony Horwitz, Blues on the Chicken Line, WALL STREET JOURNAL, December 1, 1994 ..................................................................................33 Louis Edward Ingelhart, PRESS AND SPEECH FREEDOMS IN AMERICA 1619-1995: A CHRONOLOGY (1997) ..........................................................................25 Erika King, Comment, Anonymous Campaign Literature and the First Amendment, 21 N.C. CENT. L.J. 144 (1995) .......................................................................................................31

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Jane E. Kirtley, Vanity and Vexation: Shifting the Focus to Media Conduct, 4 WM. & MARY BILL RTS. J. 1069 (1996) .....................................................................................11 Gina Kolata, Detective Work and Science Reveal New Lethal Bacteria, THE NEW YORK TIMES, January 6, 1998 ..............................................................................................................5, 21 David Lange, The Speech and Press Clause, 23 UCLA L. REV. 77 (1975) ..........................................................................................................25 Paul A. Lebel, The Constitutional Interest in Getting the News: Toward A First Amendment Protection From Tort Liability for Surreptitious Newsgathering, 4 WM. & MARY BILL RTS. J. 1145 (1996) ......................................................................................................................................9 Leonard W. Levy, EMERGENCE OF A FREE PRESS (1985) .................................................................................................................................18, 25, 26 Leonard W. Levy, On the Origins of the Free Press Clause, 32 UCLA L. REV. 177 (1984) .................................................................................25 Leonard W. Levy, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION (1988) ......................................................................................25, 26 Leonard W. Levy, The Legacy Reexamined, 37 STAN. L. REV. 767 (Feb. 1985) .................................................................................................25 James Madison, The Virginia Report of 1799-1800, Touching the Alien and Sedition Laws; together with the Virginia Resolutions of December 21, 1798, The Debates and Proceedings thereon, in the House of Delegates in Virginia (Richmond, Va., 1850) ...........................................................................27 William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV. 91 (1984) ....................................................................................17 Roy Meredith, MR. LINCOLN'S CAMERA MAN: MATHEW B. BRADY (1974) ............................................................................................................19 Newsletters to Newspapers: Eighteenth-Century Journalism (Donovan H. Bond and W. Reynolds McLeod, eds., 1976) ......................................................................................................................25

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Robert M. O'Neil, Tainted Sources: First Amendment Rights and Journalistic Wrongs, 4 WM. & MARY BILL RTS. J. 1005 (1996) .....................................................................................24 Susan Peterno, The Lying Game, AM. JOURNALISM REV. (May 1997) ..............................................................................................11 PRIME TIME LIVE: FOOD LION (ABC Television broadcast, Nov. 5, 1992) ...............................................................................................................................6, 7 Margaret Jones Patterson and Robert H. Russell, BEHIND THE LINES: CASE STUDIES IN INVESTIGATIVE REPORTING (1986) ..........................................................................................................................23 Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette ................................................................................................................19 Upton Sinclair, THE JUNGLE (1906) ...............................................................................................20 Potter Stewart, "Or of the Press", 26 HASTINGS L.J. 631 (1975) ................................................................................................................................16, 25 Dwight L. Teeter, Jr., Decent Animadversions: Notes Toward a History of Free Press Theory ..............................................................................25 13 Letters of Delegates to Congress 1774-1989 (G. Gawalt & R. Gephart eds. 1986) ...........................................................................19 Jake Thompson, Lawmakers: Fight E-Coli on Farms; The USDA and Ranchers Join Call for More Research to Prevent Tainted Beef, THE OMAHA WORLD-HERALD, December 21, 1997 ..........................................................................................................................5 John Thomson, AN ENQUIRY CONCERNING THE LIBERTY, AND LICENTIOUSNESS OF THE PRESS (1801). ............................................................................................................................................27 Laurance H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, Keynote Address at the First Conference on Computers, Freedom and Privacy (Mar. 26, 1991), <http://www.cpsr.org/conferences/cfp91/tribe2.html> (visited Jan. 11, 1998) ....................................................................................................................24

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Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988) ..................................................................................................................................30 Alison Lynn Tuley, Outtakes, Hidden Cameras, and the First Amendment: A Reporter's Privilege, 38 WM. & MARY L. REV. 1817 (1997) ...............................................................................................24 John W. Wade, The Tort Liability of Investigative Reporters, 37 VAND. L. REV. 301 (1984) ................................................................................................................................10, 24 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) ........................................................................................................................24 Jonathan Wallace and Michael Green, Bridging the Analogy Gap: The Internet, The Printing Press and Freedom of Speech, 20 SEATTLE U. L. REV. 711 (Spring 1997) .................................................................................................................25 Tunis Wortman, A TREATISE CONCERNING POLITICAL ENQUIRY, AND THE LIBERTY OF THE PRESS (1800) ...........................................................................................................................27 Larry Yellen, Information Pot of Gold: Tracking IG Efforts Help Bring the Downfall of the Jolly Green Giant, THE IRE JOURNAL (Fall 1981) .......................................................................................................23 Note, The Right of the Press to Gather Information, 71 COLUM. L. REV. 838 (1971) .................................................................................15 Note, The Rights of the Public and the Press to Gather Information, 87 HARV. L. REV. 1505 (1974) ...........................................................................................................15 Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 YALE L.J. 1084 (1961) ......................................................................................18

1

No. 97-2492, 97-2564

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Food Lion, Incorporated, Plaintiff-Appellee/Cross-Appellant, —against— Capital Cities/ABC, Inc.; Lynne Litt, a/k/a Lynne Neufes; ABC Holding Company, Incorporated; American Broadcasting Companies, Incorporated; Richard N. Kaplan; Ira Rosen; Susan Barnett, Defendants-Appellants/Cross-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BRIEF OF INVESTIGATIVE REPORTERS AND EDITORS, INC. AS AMICUS CURIAE

Interest of Investigative Reporters and Editors, Inc.

Investigative Reporters and Editors ("IRE") is a grassroots non-profit organization

dedicated to improving the quality of investigative reporting within the field of journalism. Its

more than 3,000 members work for the nation's leading broadcasters, cable operators,

newspapers, and magazines, and are directly engaged in the day-to-day practice of acquiring and

disseminating newsworthy information to the public. Publications of the organization include

The IRE Journal, a bi-monthly which focuses upon current and historical investigative

journalism practices in the United States. IRE also sponsors publication of THE REPORTER'S

HANDBOOK: AN INVESTIGATOR'S GUIDE TO DOCUMENTS AND TECHNIQUES, which is a leading

manual for the training of investigative reporters in the United States.

2

IRE was formed in 1975 with the intent of creating a networking tool and a forum

in which journalists from across the country could discuss important issues in their field and

exchange information and ideas. This group of reporters first came together to create a higher

standard of journalism. After a June 1976 car bombing killed founding member Don Bolles, a

reporter for the Arizona Republic newspaper, IRE launched what became known as the "Arizona

project." Investigative reporters from across the country determined to finish the investigation

their colleague had started in order to demonstrate that eliminating a single journalist could not

destroy cherished press freedoms dating back to the founding of the Republic. The resulting

inquiry into organized crime, corrupt politicians, and improper land deals provided citizens with

information that without concerted effort by dedicated investigative journalists may have

remained cloaked by murder and hidden from public view. Today, IRE continues its work with

print, electronic, and broadcast journalists, producers, freelancers, professors and students,

offering advice and techniques to enhance the skills necessary for investigative reporting. IRE

trains journalists in the use of cutting edge technology through its National Institute for

Computer-Assisted Reporting, a program operated jointly with the University of Missouri School

of Journalism, and hosts a Web site as an online resource for journalists. IRE also sponsors

annual and regional conferences at which it offers programs on a broad spectrum of topics,

including newsgathering techniques and reporters' ethics, and provides access to a collection of

more than 11,000 investigative stories in its Resource Center. Through these and other activities,

IRE helps reporters focus their efforts and produce high-quality, in-depth investigations.

The appearance of IRE as amicus curiae is desirable to provide the Court with an

interpretation of the history and tradition of investigative reporting in the United States from the

perspective of an organization which is comprised of individuals directly involved in the

newsgathering process. Without endorsing any particular newsgathering techniques, and without

3

looking to courts to evaluate difficult, often controversial issues of journalistic ethics, IRE

expresses support as a matter of constitutional law for newsgathering rights protected by the

freedom of the press clause contained in the First Amendment. Specifically, this Court's ruling

on Food Lion, Inc.'s efforts to curtail the pursuit of newsworthy, truthful reporting by

investigative reporters is likely to set a precedent that will influence the way the press gathers

and reports the news well into the next century.

IRE disagrees as a general matter with the decision of the District Court that mere

concealment of identity in the pursuit of otherwise legitimate newsgathering activities by

investigative reporters, without more, can result in liability for fraud, trespass, breach of the duty

of loyalty, and for liability under the North Carolina Unfair Trade Practices Act ("UTPA").

Furthermore, IRE does not believe that the press clause in the First Amendment permits

curtailment of the public's right to information through the imposition of civil liability upon

reporters who, under the circumstances presented here, are investigating threats to public health

and safety. As a practical matter, these state law claims have been used to impose liability upon

investigative reporters who fail to disclose in advance their identities, media affiliation, and

investigative purpose to the targets of their investigation, even though any state interest in

mandating such disclosure and thereby imposing such liability is either nonexistent or

outweighed by the First Amendment interest in unhindered newsgathering. Accordingly, IRE

supports the position of Appellants Capital Cities/ABC, Inc., et al. ("ABC") in seeking reversal

of the District Court decision upholding the verdict and opposes the position of Appellant Food

Lion, Inc. ("Food Lion"), in seeking reversal of the District Court's decision denying its request

for damages arising from broadcast of the information about Food Lion obtained by ABC.

Statement of Subject Matter and Appellate Jurisdiction

IRE agrees with Appellants ABC's Statement regarding Subject Matter and

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Appellate Jurisdiction.

Statement of Issues Presented for Review

IRE agrees with Appellants ABC's statement of the substantive issues on appeal.

In addition, IRE would supplement Appellants ABC's issue No. 2 as follows:

2. Did the district court err in concluding that ABC's conduct was not protected

by the First Amendment, because Food Lion relied on "generally applicable torts" and a

"generally applicable statute," and further err by enforcing state laws that impose liability upon

individuals who do not disclose their identities, media affiliations, and investigatory purpose in

connection with gaining employment for newsgathering activities protected under the First

Amendment, without a compelling state interest in doing so.

Statement of the Case

IRE agrees with Appellants ABC's Statement of the Case.

Statement of Related Cases and Proceedings

IRE is not aware of any pending related cases or proceedings, other than the

matter referred to in Appellants ABC's Statement.

5

Statement of Facts1/

Investigative reporting about unsafe practices in the food industry dates back to at

least 1906, when Upton Sinclair depicted gruesome practices he witnessed while working

undercover at a Chicago meat-packing plant.1/ New threats to public health and safety from the

mishandling of food products surfaced in the early 1980s and have presented an ongoing danger

to American consumers since that time. See, e.g., Jake Thompson, Lawmakers: Fight E-Coli on

Farms; The USDA and Ranchers Join Call for More Research to Prevent Tainted Beef, THE

OMAHA WORLD-HERALD, December 21, 1997, at 1; Henry J. Cordes, E. Coli Became Deadly in

Nebraska; `84 Outbreak Gave Clues to Mutant Bacteria; E. Coli's Attack on the Body, THE

OMAHA WORLD-HERALD, December 14, 1997, at 11a; Gina Kolata, Detective Work and Science

Reveal New Lethal Bacteria, THE NEW YORK TIMES, January 6, 1998, at 1 (hereinafter, "Lethal

Bacteria").

In December 1981, a deadly new strain of bacteria began to infest the nation's

food supply. Lethal Bacteria, at A1. Since that time, it has reportedly infected as many as

20,000 Americans a year and killed hundreds. Id. First identified in July 1982, the Centers for

Disease Control has reported that infections from this bacteria are now the leading cause of

1/ IRE adopts Appellants ABC's statement of the facts, recites certain additional facts, and

reiterates other facts that are particularly relevant to its argument, infra. With respect to facts regarding generally known threats to public health and safety in the United States and the public's reliance upon the press as a source of information, this Court can "draw of necessity upon the sources commonly drawn upon for constitutional adjudication: `constitutional facts' of record, judicial notice . . . and relevant policy concerns advanced in the briefs of . . . amici." Garris v. Hanover Ins. Co., 630 F.2d 1001, 1010 n.7 (4th Cir. 1980). See Fed. R. Evid. 201 (f) advisory committee's note (judicial notice may be taken, at discretion of court, on appeal).

2/ See Affidavit of Prof. Steven Weinberg, former Executive Director of IRE, annexed as Appendix 1 to the Memorandum of Law in Support of Defendants' Motion for Judgment as a Matter of Constitutional Law on Punitive Damages (filed Feb. 24, 1997 in the District Court) ("Weinberg Aff."), Joint Appendix ("JA") 1798.

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kidney failure in children, with at least 1,000 children a year developing this ailment and 3

percent to 5 percent of them dying. Id., at A14. Despite increased emphasis on food handling

safety guidelines by federal regulators, numerous outbreaks continue to occur. Id.

Consistent with a long tradition of investigative reporting into food industry and

restaurant practices that represent potential threats to public health, defendants initiated an

undercover investigation of plaintiff Food Lion after learning of allegations about unsanitary

food handling practices at its stores, consumer deception, and labor law violations. See

Defendants' Proffer of Evidence Excluded From Liability Phase of Trial (JA 1471), and 12/3/96

Tr. at 59 (JA 438); Tr. 1411, 1631-32 (JA 894, 918-19). The allegations of unsafe food handling

practices included, inter alia, mixing outdated beef parts and new pieces of beef together; using

bleach to mask the odor of spoiled meat, and putting new dates on products that hadn't sold

before the expiration date already on the label of the food item. Id. These activities did not occur

in areas of Food Lion stores accessible to the public, but instead took place in parts of the

supermarkets where food workers handled food items before they were made available for

purchase by shoppers. See PRIME TIME LIVE: Food Lion (ABC television broadcast, Nov. 5,

1992) (videotape submitted as Exhibit A to Defendants' Reply Brief Supporting Post-trial

Motion for Judgment as a Matter of Constitutional Law on Punitive Damages) ("Food Lion

Broadcast").

Subsequently, two ABC producers sought jobs as entry level food workers at

Food Lion. Tr. 562-72, 857-68, 1303-06 (JA 697-707, 784-95, 860-63). In order to obtain

undercover jobs as a meat wrapper and a deli clerk, the two producers concealed aspects of their

actual identity (but not their real names) by providing resumes which substituted untrue

information about their backgrounds and employment experience. Id. The two ABC producers

also concealed from Food Lion their investigatory purpose in obtaining employment from Food

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Lion. Id. After being hired by Food Lion, the ABC producers documented unsanitary food

handling practices by their employer, including a sound and audio record through the use of

hidden cameras. Food Lion Broadcast. Upon completing their investigation, which took one

week and two weeks, respectively, the two ABC producers quit their jobs. Tr. 353-59, 384, 689-

90, 1306 (JA 652-58, 664, 744-45, 863). Subsequently, the findings of the two ABC producers

were shown on PrimeTime Live, an ABC news television broadcast, and the American public

thereby became informed about food handling practices at Food Lion supermarkets. Food Lion

Broadcast. Food Lion did not contend in the District Court that information in the broadcast was

false or defamatory, and in that regard the truthfulness and accuracy of ABC's report with respect

to Food Lion's food handling practices is not at issue in this case. Following a jury trial, the jury

awarded Food Lion $1,400 in compensatory damages on Food Lion's fraud claim, nominal

damages of $1 each on the trespass and duty of loyalty claims, and $5,545,750 in punitive

damages (allocated among the various defendants) on the fraud claim. Food Lion ultimately

accepted a remittitur on its punitive damages award to $315,000.

Summary of Argument

The Judgment entered by the District Court violates established First Amendment

protection for newsgathering activities and contravenes longstanding practices of freedom of the

press dating back to the founding of the Republic. The District Court relied upon inapposite

authority in failing to recognize any First Amendment rights of the press to gather news in the

manner pursued in this case and did not consider controlling cases that require a balancing of the

Constitutional interest in unhindered newsgathering against the state interest in enforcing

mandatory disclosure of identity, media affiliations, and investigatory purpose in obtaining

employment for newsgathering activities. The history of investigative and undercover reporting

shows that such practices are valuable to the public -- especially, as here, during a dangerous

8

bacteriological outbreak affecting the safety of the nation's food supply. Such reporting also

contributes to the functioning of a democracy, and is within the mainstream of American

journalism. Press practices antedating and attending the adoption of the press clause indicate

that broad protection was intended for the right to gather and publish news, show that the

Founding Fathers and Framers of the Constitution routinely concealed their identities when

reporting news and opinions anonymously, and also show that they essentially functioned as

undercover political reporters, although they did not themselves describe their activities as such.

In summary, the District Court decision was erroneous as to its finding of liability and the

availability of punitive damages and should be reversed. The District Court decision with

respect to denying damages arising from broadcast of truthful and accurate information about

Food Lion's conduct should be affirmed.

9

ARGUMENT

I. THE JUDGMENT ENTERED BY THE DISTRICT COURT VIOLATES FIRST AMENDMENT PROTECTION FOR NEWSGATHERING ACTIVITIES AND CONTRAVENES LONGSTANDING PRACTICES OF FREEDOM OF THE PRESS

The judgment of the District Court effectively diminishes the Constitutional rights

of every reporter in the United States by eroding protection afforded to newsgathering within the

meaning of the press clause in the First Amendment.1/ This holds true because the District Court

did not, in entering judgement against ABC (1) recognize any First Amendment rights of the

press to gather news under the circumstances presented1/ or (2) balance the Constitutional

interest in unhindered newsgathering against an ostensible state interest in protecting a

supermarket chain's intangible property rights (asserted in direct response to media exposure of

public health and safety concerns arising from food mishandling by store employees in non-

public areas). See Shain v. United States, 978 F.2d 850, 855 (4th Cir. 1992) (Wilkinson, C.J.

concurring) (noting traditional balancing of newsgathering rights of reporters under the First

Amendment against competing interests and warning of "false balance" that results when "First

3/ "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. CONST. amend. I.

4/ The district court erroneously based its conclusion on the proposition that the press has no blanket First Amendment immunity from laws of general application. See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) ("generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news"). The Cowles Media Co. case, however, does not preclude a First Amendment defense to the state law claims at issue here in the context of newsgathering. See generally Paul A. Lebel, The Constitutional Interest in Getting the News: Toward A First Amendment Protection From Tort Liability for Surreptitious Newsgathering, 4 WM. & MARY BILL RTS. J. 1145 (1996); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (enforcement of compelled disclosure unconstitutional under First Amendment).

10

Amendment interests in newsgathering have not been truly weighed.").

As a consequence of the District Court judgment, members of the press who go

undercover and accept other employment while pursuing their stories will be required by state

law to make affirmative disclosures about their identity, media affiliations, and investigatory

purpose or else be subject to liability for fraud, trespass, breach of fiduciary duty, and violation

of unfair trade practices statutes. It is therefore no small irony that more than two hundred years

ago, the Founding Fathers and Framers of the Constitution, including James Madison, Alexander

Hamilton, and John Jay, intentionally concealed their own identities in order to function as

undercover political reporters, promoting anonymously the same First Amendment protections

whose denial to ABC's undercover journalists has engendered the appeal now pending before

this Court. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 360 (1995) (Thomas, J.,

concurring) (historical evidence indicates that Founding-era Americans opposed attempts to

require that anonymous authors reveal their identities on the ground that forced disclosure

violated the "freedom of the press.").

To be sure, the right to be free from unprivileged intrusions and harmful

deceptions, when present, are factors worthy of judicial consideration in connection with

enforcement of state laws that protect those interests. See John W. Wade, The Tort Liability of

Investigative Reporters, 37 VAND. L. REV. 301, 324 n.106 (1984). This case, however, involves

investigative reporting about a publicly-held corporation by a respected newsgathering

organization into matters of national health and safety, undertaken in the context of a serious

bacteriological outbreak. Under these circumstances, the "blunderbuss" regulation of

employment-related disclosures about identity, background and purpose should not pass

constitutional muster. McIntyre, 514 U.S. at 357 ("Anonymity is a shield from the tyranny of the

majority . . . . [The State] cannot seek to punish fraud indirectly by indiscriminately outlawing a

11

category of speech . . . with no necessary relationship to the danger sought to be prevented.");

Talley v. California, 362 U.S. 60, 65 (1960) ("there are times and circumstances when States

may not compel members of groups engaged in the dissemination of ideas to be publicly

identified.") (citing Bates v. City of Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357

U.S. 449, 462 (1958)).

Moreover, without reference to the ethical propriety of using hidden cameras and

other undercover reporting techniques,1/ this unprecedented effort to regulate the manner in

which the press operates goes beyond any judicial holdings of which IRE is presently aware,

and, if not reversed, will derogate historic and hard won press freedoms that are entitled to

protection under the Constitution. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

576 (1980) (plurality opinion) ("without some protection for seeking out the news, freedom of

the press could be eviscerated."); Branzburg v. Hayes, 408 U.S. 665, 707 (1972) ("news

gathering is not without its First Amendment protections. . . ."); Herbert v. Lando, 441 U.S. 153,

194 (1979) (same).

5/ Whether certain newsgathering techniques are ethical, appropriate, or honorable presents

a far different question than whether they are subject to continued protection under the Constitution. Just because certain newsgathering activities are lawful, does not mean in every circumstance that they are necessary or that they will be undertaken by journalism professionals and media executives. Indeed, many members of the press foreswear using hidden cameras and undercover reporting techniques. Others believe such methods may be appropriate under certain carefully proscribed circumstances. See Russ W. Baker, Truth, Lies, and videotape; PrimeTime Live and the Hidden Camera, 32 COLUM. J. REV. 25 (July/August 1993) (containing Society of Professional Journalists checklist for use of hidden cameras and other forms of misrepresentation); Susan Peterno, The Lying Game, AM. JOURNALISM REV. (May 1997); Jane E. Kirtley, Vanity and Vexation: Shifting the Focus to Media Conduct, 4 WM. & MARY BILL RTS. J. 1069 (1996). In short, such decisions typically do not occur within a moral, ethical, or legal vacuum. See Steve Weinberg, THE REPORTER'S HANDBOOK: AN INVESTIGATOR'S GUIDE TO DOCUMENTS AND TECHNIQUES 488-494 (3d ed. 1996) (discussing the ethics and accuracy of investigative journalism and suggesting that the use of undercover reporting techniques be carefully evaluated on moral, ethical, journalistic, and legal grounds before proceeding).

12

A. The Right of the Press to Gather News Must Be Protected Under the First Amendment

Courts must ultimately construe the meaning of the Constitution of the United

States and secure the rights provided thereunder. Richmond Newspapers, 448 U.S. at 594

(Brennan, J., Marshall, J., concurring). Furthermore, as this Court has observed,

Courts have long performed the balancing task where First Amendment rights are implicated. The Supreme Court has often had to balance the value of unrestricted newsgathering against other public interests. In these cases the courts have taken an "aggressive" balancing role, directly comparing the interest served by restraints on the press with the interest in unhindered newsgathering.

United States v. Morison, 844 F. 2d 1057, 1082 (4th Cir. 1988) (Wilkinson, C.J., concurring)

(citations omitted). Because the scope of First Amendment protection depends upon the

definition of newsgathering and the meaning of the First Amendment language at issue, it is

further important for the Court to evaluate routine press practices, Smith v. Daily Mail Publishing

Co., 443 U.S. 97, 103-104 (1979) (right to seek out information privileged at least to the extent it

involves "routine . . . reporting techniques"), and to examine "the history and circumstances

which antedated and attended the adoption of the press clause of the First Amendment." See

Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) ("clause expresses one of those

fundamental principles of liberty and justice which lie at the base of our civil and political

institutions, and as such is embodied in the concept `due process of law' and, therefore protected

against hostile state invasion by the due process clause of the Fourteenth Amendment"); Lovell v.

City of Griffin, Ga., 303 U.S. 444, 452 (1938). See also Whitener v. McWatters, 112 F.3d 740,

743-744 (4th Cir. 1997) (addressing history and long practice of disciplinary action with

legislatures; analyzing application of freedom of deliberation, speech and debate, from the

Glorious Revolution in England through ratification of the Constitution).

It has been recognized that "[i]nvestigative reporting is a critical component of the

13

First Amendment's goal of accountability in government. To stifle it might leave the public

interest prey to the manifold abuses of unexamined power." Morison, 844 F.2d at 1083.

Quoting James Madison, the Morison concurrence continued:

"A popular Government, without popular information, or a means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." 9 Writings of James Madison 103 (G. Hunt ed. 1910). We have placed our faith in knowledge, not ignorance, and for most, this means reliance on the press. Few Americans are acquainted with those who make policy, fewer still participate in making it. For this reason, the press provides the "means by which the people receive that free flow of information and ideas essential to effective self-government."

Id. at 1081 (citing Saxbe v. Washington Post Co., 417 U.S. 843, 863 (1974) (Powell, J.,

dissenting)); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 517 n.4 (1984)

(Stevens, J., concurring). In contrast to the interest in unhindered newsgathering, restraints on

the disclosure of information threaten the ability of the press to scrutinize and report on matters

of public interest. Morison, 844 F.2d at 1081. "There exists the tendency, even in a

constitutional democracy, for government to withhold reports of disquieting developments and to

manage news in a fashion most favorable to itself. Public debate, however, is diminished

without access to unfiltered facts." Id. See Reuber v. Food Chemical News, Inc., 925 F.2d 703,

713 (4th Cir. 1991).1/

The Court in Reuber addressed the "reality of the newsgathering process" and

6/ In Reuber, a case involving claims of defamation and invasion of privacy by a

government scientist arising from publication by the press of a leaked letter of reprimand, this Court reviewed three specific rationales for creation of a fair report privilege, each of which is relevant here in identifying the duties of the press under the First Amendment. Id. "Under the agency rationale, a reporter acts as an agent for members of an otherwise preoccupied public which could, if it possessed the time energy or inclination, inform itself about a government report or action." Id. "The public supervision rationale recognizes that news organizations play an important role in providing the public with information it needs to monitor the operations of government." Id. "The public information rationale focuses on the public's interest in matters affecting the public welfare." Id.

14

observed that investigative journalists, in providing the public "with information essential to

informed debate" should ensure that the accuracy of their charges can be determined before

publication. Id. at 717.1/ The Court also noted that the "free exchange of views would be

diminished to the public detriment" if the media were held to a strict liability standard in the

context of defamation law: "Prior censorship by the press of every conceivably false charge in

the course of an intense public controversy also possesses dangers to the values protected by the

First Amendment--dangers which in some particulars parallel those of censorship by the state."

Id. The same concerns should apply with equal force to strict liability under state law for mere

concealment of a reporter's identity and investigatory purpose while engaged in legitimate

newsgathering activities. See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 781-

82 (1978) ("press cases emphasize the special and constitutionally recognized role of that

institution in informing and educating the public, offering criticism, and providing a forum for

discussion and debate."); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586-87

(Brennan, J., Marshall, J., concurring in the judgment) (discussing structural role of First

Amendment and "principle that debate on public issues should be uninhibited, robust, and wide-

open"). See generally, David F. Freedman, Press Passes and Trespasses: Newsgathering on

Private Property, 84 COLUM. L. REV. 1298, 1306-1322 (1984) (reviewing theories and authority

underlying the existence of a newsgathering privilege); Note, The Right of the Press to Gather

Information, 71 COLUM. L. REV. 838 (1971); Note, The Rights of the Public and the Press to

7/ Undercover reporting is one historical method to do so. See Mitchell V. Charnley &

Blair Charnley, REPORTING 337 (4th ed. 1979) (discussing effectiveness of undercover investigative reporting). State laws that have the broad effect of forcing investigative reporters to disclose their identities and investigatory purpose in order to escape strict liability for fraud, trespass, breach of fiduciary duty, and violation of deceptive trade practices statutes are distinguishable from regulations that merely fail to afford journalists rights of access lawfully withheld from other members of the public. Cf. United States v. Steelhammer, 539 F.2d 373, 377 (4th Cir. 1976) (Winter, C.J., dissenting).

15

Gather Information, 87 HARV. L. REV. 1505 (1974). See Thornhill v. Alabama, 310 U.S. 88, 102

(1940) ("Freedom of discussion . . . must embrace all issues about which information is needed

or appropriate to enable the members of society to cope with the exigencies of their period");

Herbert v. Lando, 441 U.S. 153, 189 (1979) ("The newspapers, magazines and other journals of

the country, it is safe to say, have shed and continue to shed, more light on the public and

business affairs of the nation than any other instrumentality of publicity; and since informed

public opinion is the most potent of all restraints upon misgovernment, the suppression or

abridgement of the publicity afforded by a free press cannot be regarded otherwise than with

grave concern") (citing Grosjean v. American Press Co., 297 U.S. 233, 250 (1936)).

Lastly, it has been noted that while "the autonomous press may publish what it

knows, and may seek to learn what it can," the First Amendment "establishes the contest, not its

resolution." United States v. Morison, 844 F.2d 1057, 1085 (Wilkinson, C.J., concurring) (citing

Potter Stewart, "Or of the Press", 26 HASTINGS L.J. 631, 636 (1975)). There can be no contest,

however, if reporters are denied at the outset an opportunity to participate in the game. See

Zeran v. America Online, Inc., 129 F.3d 327, 333 (4th Cir. 1997) ("fears of unjustified liability

produce a chilling effect antithetical to the First Amendment's protection of speech") (citing

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)). In short, enforcement of

state laws that require mandatory disclosures of identity, association, and investigatory purpose

(thereby exposing to money judgments the entire net worth of individual reporters who fail to

comply) tilts the playing field too far in the wrong direction. See Estes v. Texas, 381 U.S. 532,

539 (1965) ("The free press has been a mighty catalyst in awakening public interest in

governmental affairs, exposing corruption among public officers and employees and generally

informing the citizenry of public events and occurrences . . . ."); New York Times Co. v. Sullivan,

376 U.S. 254 (1964). Cf. Rice v. Paladin Enterprise, Inc., 128 F.3d 233 (4th Cir. 1997) ("First

16

Amendment might well circumscribe the power of the state to create and enforce a cause of

action that would permit the imposition of civil liability, such as aiding and abetting civil

liability, for speech that would constitute pure abstract advocacy, at least if that speech were not

"directed to inciting or producing imminent lawless action, and . . . likely to incite or produce

such action.").1/

These same reasons also demonstrate why the District Court decision with respect

to denying damages arising from the broadcast of truthful and accurate information about Food

Lion's conduct should be affirmed. To do otherwise would undo Sullivan without any basis.

Similarly, liability for punitive damages arising from truthful reporting also offends the meaning

of the First Amendment, and the chilling effect of the District Court's judgment should be ended

by reversal.

8/ In Zeran, this Court noted that "Congress considered the weight of the speech interests

implicated and chose to immunize service providers to avoid any such restrictive effect." 129 F.3d 327, 331. Here, it is the press clause itself that requires the weighing of the newsgathering interests.

17

B. The Historical Practices and Valuable Role of the Free Press in America Should Remain Unhindered

1. Routine Press Practices Have Traditionally Included Investigative and Undercover Reporting

As early as the 17th Century, journalist Benjamin Harris collected evidence of

atrocities during the French and Indian War to reveal the complicity of the British in torture and

slaughter. See James L. Aucoin, I.R.E.: INVESTIGATIVE REPORTERS & EDITORS, THE ARIZONA

PROJECT, AND THE EVOLUTION OF AMERICAN INVESTIGATIVE JOURNALISM 7-16 (1997)

(hereinafter "Aucoin, EVOLUTION OF INVESTIGATIVE JOURNALISM"). Harris rallied his

countrymen to challenge the actions of their existing government, and was subsequently

prosecuted by the British government for his ongoing journalistic efforts. See William T.

Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV.

91, 107 nn. 93 & 94 (1984) (discussing punishment of Harris by the Crown for seditious libel).

This lesson, and similar prosecutions in that era,1/ did much to forge sentiments in the colonies

towards fundamental protection for press activities (and concealment of identity whenever

necessary). See Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the

Devil, 70 YALE L.J. 1084, 1085 (1961) (citing Courtney, THE SECRETS OF OUR NATIONAL

LITERATURE 151-77 (1908)).

During the Revolutionary War and Ratification periods, many of the Founding

Fathers and Framers, including Thomas Jefferson, Richard Henry Lee, James Madison,

Alexander Hamilton, John Jay, Dr. Benjamin Rush, George Clinton, Robert Yates, and others,

9/ Caution was well-founded because the English Crown dealt harshly with its critics. See

Talley v. State of California, 362 U.S. 60, 65 (1960) ("John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England"). See generally Zechariah Chafee, Jr., THE BLESSINGS OF LIBERTY 190-207 (1956).

18

intentionally concealed their identities to comment in the press upon matters of great national

importance. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 n.6, 359-371 (1995)

(Thomas, J., concurring). See also Leonard W. Levy, EMERGENCE OF A FREE PRESS 206 (1985)

(hereinafter "Free Press") ("The pen names of the men who wrote for the newspapers concealed

some of Pennsylvania's--and America's--most renowned politicians."). These individuals,

serving in various governmental and other capacities, gathered and disseminated information to

the public under false and fictitious names such as "Publius," "Cato," "The Federal Farmer,"

"Janus," "Leonidas," and "Detector". Id. They deliberately concealed their identities, among

many other reasons, to avoid prosecution for seditious libel, as well as to be more effective

advocates. McIntyre, 514 U.S. at 342-43. Disclosure of their actual identities would

undoubtedly have interfered with their access to information and continuing participation in the

process about which they were reporting. Id.

In a sense, many of the Framers and Founding Fathers themselves functioned as

undercover political reporters, who concealed their identities both to avoid the real threat of

reprisal and to be effective in maintaining access to the sources of information which formed the

basis for their reports and opinions. And although they and others did not characterize their

actions as such, their apparent function as anonymous or undercover "newsgatherers" is

demonstrated by the body of work contained in the historical record. Id. Writing under the

pseudonym "Scipio", the Governor of New Jersey in 1784, William Livingston, attacked the

state legislature's failure to lower taxes and accused a state officer of stealing or losing state

funds during the British invasion of New Jersey. Id. (citing Scipio, Letter to the Printer, Feb. 24,

1784, The New-Jersey Gazette). See also id. at 361 ("Leonidas" -- actually Dr. Benjamin Rush -

- reporting that members of Congress engaged in embezzlement and fraud) (citing 13 Letters of

Delegates to Congress 1774-1789, p. 141 n. 1 (G. Gawalt & R. Gephart eds. 1986)). These

19

anonymous publications therefore contain not only substantive commentary on the meaning and

scope of the First Amendment in the early years of the Republic, but just as importantly provide

factual evidence of actual press practices during the period when the First Amendment was

enacted -- practices which provide a basis for evaluating and applying the broad meaning of the

press clause in the present day. See discussion infra.

Several generations later when civil strife threatened what the Revolution had

achieved, the battlefield photographs of Mathew Brady, one of the earliest photo-journalists,

shocked the nation with depictions of the plain horrors of war. See Lawrence Douglas, Film as

Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal, 105 YALE L. J.

449, 464 (1995) (citing James D. Horan, MATHEW BRADY: HISTORIAN WITH A CAMERA (1955)

(hereinafter "Film as Witness")1/; Roy Meredith, MR. LINCOLN'S CAMERA MAN: MATHEW B.

BRADY 24 (1974). In the aftermath of the War Between the States, during the period of massive

industrialization from 1889 onwards, reporter Henry Demarest Lloyd exposed wrongdoing by

10/ Visual evidence, including photographs, film, and video, has had a lasting effect upon

journalism. See Lyrissa C. Barnett, Note, Intrusion and the Investigative Reporter, 71 Tex. L. Rev. 433 (1992) (describing impact of photographs from hidden cameras used in investigations by "60 Minutes" and "20/20" television news programs). Its power is also recognized in adjudicative proceedings. During the Nuremberg Tribunal, Supreme Court Justice Robert H. Jackson, the chief counsel for the Allied prosecution, offered this description of documentary evidence during his opening statement:

We will show you these concentration camps in motion pictures,

just as the Allied armies found them when they arrived . . . . Our proof will be disgusting and you will say I have robbed you of your sleep . . . . I am one who received during this war most atrocity tales with suspicion and skepticism. But the proof here will be so overwhelming that I venture to predict not one word I have spoken will be denied.

FILM AS WITNESS, at 450. Nazi war criminal Hermann Goering later commented of the

pictorial evidence: "And then they showed that awful film, and it just spoiled everything." Id. at 449, n.1.

20

the Standard Oil Company in WEALTH AGAINST COMMONWEALTH, establishing new standards

for journalistic thoroughness, accuracy, and documentation of evidence. See AUCOIN,

EVOLUTION OF INVESTIGATIVE JOURNALISM at 7.

Within the past 100 years, journalists have regularly concealed information --

including the reporter's actual identity and purpose -- from targets of newsgathering activities.

Weinberg Aff. at 1-2. A primary reason for doing so has been to overcome otherwise restricted

access to information regarding socially significant, newsworthy matters. Id.

Perhaps the most famous example (which, as in the above-captioned appeal,

concerned unsafe food handling procedures and matters of public health and safety) is Upton

Sinclair's 1906 expose of unsanitary Chicago meatpacking plants. Sinclair's novel, THE JUNGLE,

described in gruesome detail meat-packing practices he witnessed while posing as a food worker.

The book, which focused public attention on unsavory practices that endangered American

consumers, caused President Theodore Roosevelt to order an investigation that led to federal

legislation to protect food safety. See Meat Inspection Act of 1906, ch. 2907, 34 Stat. 1260

(codified at 21 U.S.C. §§ 601-95) (1988)); James A. Albert, A History of Attempts by the

Department of Agriculture to Reduce Federal Inspection of Poultry Processing Plants--A Return

to the Jungle, 51 LA. L. REV. 1183 (1991); Leigh A. Aughenbaugh, The Demise of the Foreign-

Natural Test in North Carolina - Goodman v. Wenco Foods, 16 CAMPBELL L. REV. 275 (1994).1/

Other important examples of investigative and undercover reporting1/ include the

following:

11/ The threat to public health and safety arising from unsafe food handling practices,

ranging from tainted hamburgers to contaminated apple juice, continues. Lethal Bacteria, at A14.

12/ Articles are further described and excerpts annexed to the Weinberg Aff. (JA 1798).

21

• 1887-88: Reporter Nellie Bly posed as an emotionally troubled woman in order

to gain entry to Blackwell's Island Insane Asylum. Bly's story exposed mistreatment of patients

and ultimately resulted in additional funding for the agency supervising the asylum and

improved sanitary conditions, more palatable food, and the firing of abusive nurses. (Weinberg

Aff. at 2) See Nellie Bly, THE MADHOUSE (1888); Bly also posed as a "wayward female" to

investigate the Magdalen Home for Unfortunate Women and as the wife of a patent medicine

manufacturer to demonstrate corrupt practices by lobbyists involving the New York state

legislature.

• 1960: Reporter Edgar May won a Pulitzer Prize posing as a services caseworker

in the Erie County Welfare Department. May concealed his actual employment status by

referring to his "previous employment" with The Buffalo Evening News.

• 1972: An investigative team from The Chicago Tribune won a Pulitzer Prize

uncovering violations of voting procedures in local elections. One of the reporters concealed his

identity in order to obtain a job at the Chicago Board of Election Commissioners.

• 1973-75: Reporters from an investigative team at The Chicago Tribune concealed

their actual identities in order to obtain jobs as nurses' aides and janitors at Cook County nursing

homes. The resulting news story led to closings of homes by Cook County and Illinois

regulators. Another Tribune reporter, Bill Gaines, went undercover as a janitor at Von Sollbrig

Memorial Hospital in order to document shoddy health care practices and violations of state law.

• 1978: Chicago Sun-Times investigative reporters concealed their identities to

obtain jobs at abortion clinics and referral agencies for abortion clinics in order to investigate

allegedly unnecessary abortion procedures. Following publication of their story, new laws were

passed to regulate outpatient abortion clinics, some of the clinics were closed, certain doctors left

the state, and one physician was ultimately sent to prison. Also in 1978, a soundman with the

22

CBS television program "60 Minutes" concealed his actual identity to enroll at a cancer clinic at

Murrieta Hot Springs, California. The investigation led to the closure of the clinic by the State

of California and the owner of the clinic received a prison sentence.

• 1980: In connection with an investigation of farm loan fraud, Chicago-Sun

Times journalist Bruce Ingersoll concealed his identity by posing as a bidder at a bankruptcy

sale. The news stories prompted Congressional hearings, caused new regulations to be issued by

the U.S. Department of Agriculture, and resulted in the scuttling of several government

contracts. See Larry Yellen, Information Pot of Gold: Tracking IG Efforts Help Bring the

Downfall of the Jolly Green Giant, THE IRE J. (Fall 1981). Also in 1980, a reporter from The

Nashville Tennessean, Jerry Thompson, posed as a retired member of the military in order to

infiltrate the Ku Klux Klan. Increased law enforcement awareness of Klan activities following

publication of Thompson's reporting led to curtailment of Klan activities in the Nashville area,

and also led to arrests of Klan members and the apparent prevention of a bombing attempt. See

Margaret Jones Patterson and Robert H. Russell, BEHIND THE LINES: CASE STUDIES IN

INVESTIGATIVE REPORTING 265-79 (1986).

• 1988: Two reporters from The Miami Herald, one white, one black, posed as

potential tenants to test the level of racial discrimination in the Miami real estate market, and

published reports describing widespread discrimination despite Federal laws enacted to combat

such practices.

• 1994: A Wall Street Journal reporter, Tony Horwitz, obtained a job in a poultry

processing plant to publish an award winning report on labor and health issues. Horwitz

disclosed his university education and employment at "Dow Jones & Co.", publisher of the Wall

Street Journal, but observed that the plant manager "barely glanced at his job application,"

perhaps due to labor shortages and high turnover in the plants.

23

• 1996: Ms. Magazine reporter Helen Zia exposed inhumane working conditions

by obtaining employment as a pieceworker in a New York City sweatshop.

The press practices described above clearly reflect newsgathering practices well

within the mainstream of American journalism. Not surprisingly, in a society where nearly

ninety-nine percent of American households have a television and approximately eighty percent

of adults rely solely on television for news information,1/ it is the practices of broadcast

journalists that have spawned recent efforts -- including most prominently the complaints filed

with the District Court in this case -- to end-run the New York Times Co. v. Sullivan libel

standard, 376 U.S. 254 (1964), with novel theories of tort liability. See John W. Wade, The Tort

Liability of Investigative Reporters, 37 VAND. L. REV. 301, 324 n.106 (1984). See also Robert

M. O'Neil, Tainted Sources: First Amendment Rights and Journalistic Wrongs, 4 WM. & MARY

BILL RTS. J. 1005, 1023 (1996). However, contrary to the view that popular broadcast news

shows are somehow less deserving of historical First Amendment protection than the

Washington Post or the New York Times,1/ the nature of press practices from the time of the

Revolution onward suggests a broad based constitutional interest in protecting newsgathering

activities regardless of changing reporting techniques and technologies.1/

13/ See Alison Lynn Tuley, Outtakes, Hidden Cameras, and the First Amendment: A

Reporter's Privilege, 38 WM. & MARY L. REV. 1817, 1847 nn.199 & 200 (1997) (citing Stephen Ansolabehere, THE MEDIA GAME: AMERICAN POLITICS IN THE TELEVISION AGE 4 (1993)).

14/ Cf. 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); 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).

15/ Technological innovations do not alter the proper First Amendment analysis. See Lovell v. City of Griffin, Ga., 303 U.S. 444, 452 (1938) ("The liberty of the press is not confined to newspapers and periodicals . . . . The press in its connotation comprehends every sort

24

2. Practices Antedating and Attending the Adoption of the Press Clause Indicate that Broad Protection Was Intended for the Right to Gather and Publish News

Further explanation for the genesis of journalistic practice in the United States can

be shown by a review of the history and circumstances which "antedated and attended the

adoption of the press clause of the First Amendment." While debate ensues about the Framers'

intent with respect to freedom of the press and the degree to which courts should defer, the

practices of the press during the Revolutionary and Ratification periods are well documented and

demonstrate, as a whole, that the exercise of press freedoms during the founding of the Republic

encompassed a range of practices evident in the modern era, from measured objective reporting

to tabloid-style journalism:1/

When the Framers of the First Amendment provided that Congress

(..continued) of publication which affords a vehicle of information and opinion."). See also Laurance H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, Keynote Address at the First Conference on Computers, Freedom and Privacy (Mar. 26, 1991), <http://www.cpsr.org/conferences/cfp91/tribe2.html> (visited Jan. 11, 1998) (Constitution's norms, at their deepest level, must be invariant under merely technological transformations) (cited in Jonathan Wallace and Michael Green, Bridging the Analogy Gap: The Internet, The Printing Press and Freedom of Speech, 20 SEATTLE U. L. REV. 711, 748 n.166) (Spring 1997)).

16/ See, e.g., Louis Edward Ingelhart, PRESS AND SPEECH FREEDOMS IN AMERICA 1619-1995: A CHRONOLOGY (1997); Timony B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927 (1992); Leonard W. Levy, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 195-220 (1988); Tom A. Collins, The Press Clause Construed in Context: The Journalists' Right of Access to Places, 52 MO. L. REV. 751 (Fall 1987); Leonard W. Levy, EMERGENCE OF A FREE PRESS (1985); Leonard W. Levy, The Legacy Reexamined, 37 STAN. L. REV. 767 (Feb. 1985); Leonard W. Levy, On the Origins of the Free Press Clause, 32 UCLA L. REV. 177 (1984); David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455 (1983); David S. Bogen, The Origins of Freedom of Speech and Press, 42 MD. L. REV. 429 (1983); Dwight L. Teeter, Jr., Decent Animadversions: Notes Toward a History of Free Press Theory, reprinted in NEWSLETTERS TO NEWSPAPERS: EIGHTEENTH-CENTURY JOURNALISM 237-245 (Donovan H. Bond and W. Reynolds McLeod, eds., 1976); Potter Stewart, "Or of the Press", 26 HASTINGS L. J. 631 (1975); David Lange, The Speech and Press Clause, 23 UCLA L. REV. 77 (1975).

25

shall not abridge the freedom of the press, they could only have meant to protect the press with which they were familiar and as it operated at the time. In effect, they constitutionally guaranteed the freedom of the press as it existed and was practiced at the time.

ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION at 213 (citations omitted) (emphasis added)

(hereinafter "ORIGINAL INTENT"). Rather than adopting the limited conception of freedom of the

press contained in the existing law or in the views of libertarian theorists, the historical record

reveals that "[b]y freedom of the press, the Framers meant a right to engage in rasping,

corrosive, and offensive discussions on all topics of public interest. The English common law

definition had become unsuitable, and American libertarian theory had not caught up with press

practice . . . ." Id. See also Leonard W. Levy, EMERGENCE OF A FREE PRESS 206 (1985)

(referring to "slashing journalism" published during the 1780s by Eleazar Oswald in the

Independent Gazetteer). Freedom of the press during that hallowed era therefore meant far more

than freedom to opine in balanced, measured tones without fear of prior restraint. Freedom of

the press to the framers of the Constitution "meant the right to criticize harshly the government,

its officers, and its policies as well as to comment on any matters of public concern. The right to

criticize and comment no longer implied a decent or temperate fashion. It meant a freedom for

foul-tempered, mean-spirited expression . . . ." Id. The documentary record from the

Ratification Period further shows that:

[Freedom of the press] meant, too, that the press enjoyed a preferred position in the American constitutional scheme because of its special relationship to popular government. The electoral process would have been a sham if voters did not have the assistance of the press in learning what candidates stood for and what their records showed about past performance and qualifications. A free press was becoming indispensable to the existence of a free and responsible government . . . .A free press meant the press as the Fourth Estate, or rather, in the American scheme, an informal or extraconstitutional fourth branch that functioned as part of the intricate system of checks and balances that exposed public mismanagement and kept power fragmented,

26

manageable, and accountable. Freedom of the press had accrued still another function that intimately associated it with a free state, meriting its constitutional protection . . . [T]he existence of various personal liberties depended at least in part on the vigilance of the press in exposing unfairness, inequality, and injustice. Freedom of the press had become part of the matrix for the functioning of popular government and the protection of civil liberties.

ORIGINAL INTENT at 213 (citations omitted).

Shortly after ratification of the First Amendment, enactment of the Sedition Act

provoked a fierce rebuke to efforts to undermine hard won freedoms under the First Amendment

and to reimpose common law limitations on the press. See ORIGINAL INTENT at 215-216, and nn.

71-75 (citing George Hay, An Essay on the Liberty of the Press, Respectfully Inscribed to the

Republican Printers Throughout the United States (Philadelphia, 1799); George Hay, An Essay

on the Liberty of the Press, Showing, That the Requisition of Security for Good Behavior from

Libellers, is Perfectly Compatible with the Constitution and Laws of Virginia (Richmond, Va.,

1803), reprinted as TWO ESSAYS ON THE LIBERTY OF THE PRESS (New York: Da Capo Press,

(1970); James Madison [The Virginia Report of 1799-1800, Touching the Alien and Sedition

Laws; together with the Virginia Resolutions of December 21, 1798, The Debates and

Proceedings thereon, in the House of Delegates in Virginia 189-237] (Richmond, Va., 1850)

(reprinted by Da Capo Press, New York 1970); Tunis Wortman, A Treatise Concerning Political

Enquiry, and the Liberty of the Press, New York, 1800, 296 pp. (Reprinted by Da Capo Press,

1970); John Thomson, An Enquiry Concerning the Liberty, and Licentiousness of the Press, New

York, 1801, 84 pp. (reprinted by Da Capo Press, 1970). Hence, the libertarian theory of freedom

of the press, which emerged more fully when Thomas Jefferson assumed the Presidency, became

firmly entrenched as a guiding principle for the development of press freedom in America.

These freedoms, shaped by more than two hundred years of enlightened practice, should

therefore be guarded carefully against gradual erosion by innovative, but misdirected state law

27

claims. This is especially important, when, as here, claims are not asserted by an individual to

secure rights of personal privacy and property against unnecessary intrusion, but instead by a

large corporation with a clear self-interest in restricting "reports of disquieting developments and

manag[ing] news in a fashion most favorable to itself." Cf. Morison, supra, 844 F.2d at 1081.

See also George Freeman, et al., `60 Minutes' and the Law: Can Journalists Be Liable for

Tortious Interference with Contract?, 68-AUG N.Y. ST. B.J. 24, 27 (1996) (discussing

employment of tort theories other than defamation to obtain redress for press publication and

obvious purpose to evade common-law and constitutional hurdles that protect the press). See

also Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 517-22, 223 Cal. Rptr. 58, 62-

66 (1986) (suggesting approach to balancing newsgathering interests with concerns about tort

liability).

28

II.

THE FIRST AMENDMENT BARS ENFORCEMENT OF CLAIMS BASED UPON STATE LAWS THAT COMPEL DISCLOSURE OF IDENTITY, ASSOCIATION, AND INVESTIGATORY PURPOSE UNDER THE CIRCUMSTANCES PRESENTED HERE

29

Contrary to the holding of the District Court, the outcome of this case should not

be controlled by Cohen v. Cowles Media Co. In sharp contrast to that case, enforcement of the

state laws at issue here subjects reporters to liability, including punitive damages, for failure to

disclose complete and accurate information about their identities, associations, and investigatory

purpose when seeking additional employment. See Clifton v. Federal Election Commission, 114

F.3d 1309, 1313 (1st Cir. 1997) ("Supreme Court has long treated compelled speech as abhorrent

to the First Amendment whether the compulsion is directed against individuals or corporations").

Accordingly, resolution of at least the following constitutional issue should have been, but was

not, addressed in the proceedings below: can individuals be compelled under state law to

disclose their identities, investigatory purposes, and media affiliations -- and be punished for

concealment of same -- in connection with gaining employment for newsgathering activities

protected under the First Amendment? Compare McIntyre v. Ohio Election Commission, 514

U.S. 334 (1995) (general state interest in preventing fraud based upon enforcement of overbroad

statute insufficient to overcome right to conceal identity long guaranteed by freedom of speech

and of the press under the First Amendment) with Cowles Media Co., 501 U.S. 663, 669 (1991)

(enforcement of contract between publisher and news source to maintain anonymity of source

has only incidental effect upon newsgathering). See American Constitutional Law Foundation,

Inc. v. Meyer, 120 F.3d 1092, 1102-3 (10th Cir. 1997) (following McIntyre and striking down

portions of statute that unconstitutionally infringed on First Amendment rights). Thus, to the

extent that the compelled disclosures run afoul of the First Amendment, Cowles Media Co.

simply has no application. See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104 (1979) ("if

a newspaper lawfully obtains truthful information about a matter of public significance, then

state officials may not punish publication of the information, absent a need to further a state

interest of the highest order").

30

Each claim against ABC substantially depends upon the initial concealment of

identity and investigatory purpose by its undercover reporters, who modified their backgrounds

and references in order to obtain entry level jobs as food handlers in a supermarket chain. The

fraud claim hinged upon a false representation or concealment of a material fact. See Food Lion,

Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1217, 1219 (D.N.C. 1996). The trespass claim

required a misrepresentation relied upon to gain access to property (purportedly negating

consent). Id. The breach of fiduciary duty claim proceeded because undercover reporters were

employed by ABC and Food Lion at the same time and Food Lion did not know of affiliation

with ABC. Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224, 1229 (D.N.C. 1996).

And the claim under UTPA, N.C. Gen. Stat. § 75-16.1, required proof of conduct "constituting

an unfair or deceptive act or practice," and "conduct in or affecting commerce" that resulted in

"actual injury caused by the wrongful conduct." Id.

The question of whether the disclosures -- mandated by the enforcement of the

above laws at issue against the press -- are permissible in connection with lawful newsgathering

activities has not been directly addressed by the Supreme Court. However, that Court's holdings

in a long line of First Amendment cases show that such enforcement should be barred because it

violates protected rights of freedom of the press, speech and association, and the state laws at

issue, as applied in the District Court, are not narrowly tailored to serve any legitimate state

interest. See generally Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 1022-1039 (2d ed.

1988) (discussing authority under First Amendment, including overbreadth and vagueness

doctrines, for invalidating enforcement of laws, such as ordinary trespass ordinance, against

protected activity, rather than invalidation of law itself). More specifically, this case is most

directly analogous to a line of cases that protect anonymity regarding identity and association,

and which prohibit the enforcement of laws restricting First Amendment rights absent the

31

necessary level of state interest. See McIntyre v. Ohio Elections Commission, 514 U.S. 334

(1995) (invalidating law restricting anonymous pamphleteering during election);1/ Talley v.

California, 362 U.S. 60 (1960) (invalidating law prohibiting distribution of "any handbill in any

place under any circumstances" unless it contains names and addresses of those who prepared,

distributed or sponsored it); Thomas v. Collins, 323 U.S. 516 (1945) (statute preventing

soliticitation of union employees "contravenes the Constitution"); NAACP v. Alabama, 357 U.S.

449 (1958) (overturning civil contempt for failing to disclose membership list); Bates v. City of

Little Rock, 361 U.S. 516 (1960) (striking down ordinance that organization disclose its

membership list); Shelton v. Tucker, 364 U.S. 479 (1960) (striking down statute compelling

school teachers as condition of employment to disclose names and addresses of all organizations

to which they belonged or contributed to within past five years). In addition, the First and

Fourteenth Amendments do not permit a private corporation to use a state's rules (e.g., property,

trespass, fiduciary duty, or deceptive trade practices statute) to prevent an individual from

engaging in otherwise lawful newsgathering activities concerning matters of public interest. Cf.

United States v. Robel, 389 U.S. 258 (1967) (statute contains fatal defect of overbreadth because

it seeks to bar employment both for association which may be proscribed and for association

which may not be proscribed consistently with First Amendment rights); Marsh v. Alabama, 326

U.S. 501 (1946) (constitutional rights violated when property holder attempted to enforce

trespass statute to prevent distribution of religious literature); Amalgamated Food Employees

Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 322-23 (1968).

17/ Prior to the decision by the U.S. Supreme Court in McIntyre, approximately forty-eight

states and the District of Columbia had statutes requiring the disclosure of some party's identity on political literature pertaining to elections. See Erika King, Comment, Anonymous Campaign Literature and the First Amendment, 21 N.C. CENT. L.J. 144 (1995). Because these statutes regulate core political speech, they necessarily implicate the First Amendment. Id.

32

Based upon the reasoning of these cases, the state cannot enforce claims for

trespass, fraud, breach of fiduciary duty, and violation of the UTPA merely because ABC's

reporters maintained some degree of anonymity (at least with respect to their employment

backgrounds) by altering their resumes and declining to disclose to job interviewers that they

were investigative reporters seeking to confirm allegations about improper or illegal practices by

Food Lion. States can and do implement and enforce more narrowly drawn statutes preventing

persons from impersonating police officers, falsely claiming possession of a pilot's license, or

claiming possession of an engineering or medical degree. Such misrepresentations could

undoubtedly create grave dangers, and most if not all states have enacted specific civil and

criminal statutes to prohibit anyone, including the press, from making such assertions for the

purpose of employment or otherwise. For example, the State of North Carolina has enacted the

following statutes concerning misrepresentations of identity:

§ 14-276.1 Impersonation of firemen or emergency medical personnel. It is a Class 3 misdemeanor, for any person, with intent to deceive, to

impersonate a fireman or any emergency medical services personnel, whether paid or voluntary, by a false statement, display of insignia, emblem, or other identification on his person or property, or any other act, which indicates a false status or affiliation, membership, or level of training or proficiency, if:

(1) The impersonation is made with intent to impede the performance of

the duties of a fireman or any emergency medical services personnel, or (2) Any person reasonably relies on the impersonation and as a result

suffers injury to person or property. For purposes of this section, emergency medical services personnel means

a medical responder, emergency medical technician, emergency medical technician intermediates, emergency medical technician paramedics, or other member of a rescue squad or other emergency medical organization.

N.C. Gen. Stat. § 14-276.1 (1997).

§ 20-137.2 Operation of vehicles resembling law-enforcement vehicles unlawful; punishment.

33

(a) It is unlawful for any person other than a law-enforcement officer of

the State or of any county, municipality, or other political subdivision thereof, with the intent to impersonate a law-enforcement officer, to operate any vehicle, which by its coloration, insignia, lettering, and blue or red light resembles a vehicle owned, possessed, or operated by any law-enforcement agency.

(b) Violation of subsection (a) of this section is a Class 1 misdemeanor.

N.C. Gen. Stat. 20-137.2 (1997). See also N.C. Gen. Stat. § 14-118.2 (1997) (unlawful for any

person, firm, corporation or association to impersonate another in taking or attempting to take an

examination).

The same level of concerns and the underlying public policy issues regarding the

above-described North Carolina statutes are not raised by employment that requires entry level

skills, such as the jobs sought by ABC's reporters. That is because any harm to the public is

minimal, particularly when weighed against a countervailing interest in legitimate newsgathering

about matters of public health and safety. Cf. American Constitutional Law Foundation, Inc.,

120 F.3d at 1102-3. See, e.g. Tony Horwitz, Blues on the Chicken Line, WALL STREET

JOURNAL, December 1, 1994, at A1 (staff reporter discloses "Dow Jones" as employer and

obtains dual employment in chicken processing plant). Horwitz described his experience as

follows:

After the brief orientation at B.C. Rogers, the other new workers and I were issued our safety and sanitation gear -- white coat, hairnet, rubber gloves, earplugs -- with $4.50, almost an hour's pay, deducted from our first paycheck to pay for these items. On the factory floor -- a noisy, wet expanse of chutes and belts loosely linked by the ubiquitous chain -- a supervisor pointed me to a space along a conveyor belt where workers frantically weighed chicken parts and crammed them into cardboard boxes. "Show him the ropes," he shouted at no one in particular, and no one ever did . . . . Interviewed later, Jack Rogers, B.C. Rogers general counsel and son of the company's CEO, said: "You learn on the line how to do the job."

Id. Thus, the District Court should have balanced the state interest in enforcing the laws at issue

34

depending upon type of employment. In addition, the District Court also should have drawn a

distinction between a state interest in requiring employment-related disclosures to prevent direct

harm that arises from employment (e.g., embezzlement), and any interest in preventing damages

to an employer arising from publication of newsworthy, truthful and accurate information

obtained by a reporter during her employment. See McIntyre, 514 U.S. at 331 n.13 (discussing

availability of defamation claim as a more direct attack on false statements that cause injury).

The District Court in this case, however, did not even begin to balance the factors

necessary to evaluate the constitutionality of enforcing the mandatory disclosures that formed the

basis for imposing liability upon ABC.1/ Instead, the rule of law that has emerged requires

unreasonably broad disclosures that bear little apparent relation to any state interest in preventing

reporters from obtaining jobs as meat wrappers and deli clerks by concealing some aspects of

their identities (while claiming, albeit inaccurately, to possess some experience that they do not

have). This "blunderbuss" approach to regulating employment-related disclosures has a direct,

not incidental, and therefore impermissible effect upon newsgathering efforts, and is fatally

flawed under the reasoning of McIntyre and its predecessors.

In McIntyre, the petitioner challenged an Ohio law prohibiting, among other

things, distribution of any publication designed to promote the adoption or defeat of a ballot

issue unless the publication contained the name of the person who was responsible for it. The

purpose of the law was thus to identify persons who distributed materials containing false

statements. The United States Supreme Court struck down the statute on three main grounds.

18/ As a general matter, state interest in enforcing such disclosure is measured by factors

including the nature of the protected constitutional rights at issue, the breadth of the disclosure sought and its relationship to the harm sought to be avoided by the disclosure, and, depending upon the level of applicable scrutiny, the availability of less restrictive disclosure more narrowly tailored to serve the asserted interest. See American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092, 1101-04 (10th Cir. 1997).

35

First, the Court recognized a broad historical right to anonymity dating back to the founding of

the Republic. Second, it found that anonymous speech had expressive value to the speaker and

to society that outweighed public interest in disclosure. Third, it found that the specific statute at

issue could not survive strict scrutiny because it was a "content-based" restriction on speech, and

not narrowly tailored to serve Ohio's asserted interest in preventing fraud. See McIntyre, 514

U.S. at 334 (Thomas, J. concurring).1/

The State of Ohio had asserted that the statute was a reasonable regulation of the

electoral process, and that the prohibition against anonymity was a reasonable regulation of the

electoral process. Id., 514 U.S. at 341. As in this case, the purported general interest for

compelling disclosure of identity was to pinpoint individual instances of misconduct, that is, to

prevent fraud by enabling identification of individuals who make false or fraudulent statements.

Id., 514 U.S. at 334, 371. The Court disagreed strongly, referring to the respected tradition in

the United States of anonymity in the advocacy of political causes, id., 514 U.S. at 343, and

observing that "identification of an author against her will is particularly intrusive; it reveals

unmistakably the content of her thoughts on a controversial issue." Id., 514 U.S. at 355. The

Court further pointed out that forced disclosure of the writer's identity served no compelling state

interest and had no necessary relationship to the danger sought to be prevented. Id. Writing for

the majority, Justice Stevens stated:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplified the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from

19/ The dissent, joined by the Chief Justice, recognized the broad sweep of the Majority

opinion, referring to the protection of anonymity as "a hitherto unknown right-to-be-unknown while engaging in electoral politics." 514 U.S. 334, 371 (Scalia, J., dissenting).

36

suppression--at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

Id., 514 U.S. at 357 (emphasis added).

While the right to anonymity at issue in McIntyre was addressed in the context of

publication, related principles apply to newsgathering activities.1/ The Court recognized that,

because of the history and tradition involved, application of state law should not occur without

reference to the character or strength of the interest presented in anonymity. Id. The history and

achievements of undercover reporting, see supra, demonstrate that interest. See also McIntyre,

514 U.S. at 341-42 ("interest in having anonymous works enter the marketplace of ideas

unquestionably outweighs any public interest in requiring disclosure as a condition of entry;

arguments favoring the ratification of the Constitution advanced in the Federalist Papers were

published under fictitious names). As the Court noted, "[t]he decision in favor of anonymity

may be motivated by fear of economic or official retaliation, by concern about social ostracism,

or merely by a desire to preserve as much of one's privacy as possible." Id. It is also true that

concealment of identity through anonymity permits an author to maintain access to the sources of

information upon which her reports are based. For this reason, in the realm of domestic politics,

publications continue to appear under pseudonyms. For example, the inner workings of Chicago

machine politics were revealed in a satirical book authored by an individual who called himself

"Ward Heeler." Mr. "Heeler", it was explained in the book's introduction, was a prominent

20/ Put another way, the purported fraud resulting in the imposition of civil liability for

tortious conduct depends upon state enforcement of an existing duty to make the required disclosures (or to refrain from making affirmative disclosures). Under the District Court's holding, these mandatory disclosures must conclusively establish who a reporter is, what she has done in the past and is doing now, and why she is doing it.

37

elected official who had to remain anonymous. "Were he to be discovered, his fellow politicos

would speedily sentence him to political death. He would not be reslated for office, his years of

achievement within the organization would be erased." See Ward Heeler, THE ELECTION

CHICAGO STYLE (1977). Of course, undercover reporting into public health issues addresses

issues concerning the prevention of actual mortality. See Talley v. California, 362 U.S. 60, 65

(1960) ("It is plain that anonymity has sometimes been assumed for the most constructive

purposes).

Finally, in observing that the State of Ohio had not shown an interest in

preventing the misuse of anonymous election-related speech so as to justify "a prohibition of all

uses of that speech," the Court held that: "The State may, and does, punish fraud directly. But it

cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based

on its content, with no necessary relationship to the danger sought to be prevented." McIntyre,

514 U.S. at 357 (emphasis added). In criticizing the "blunderbuss approach" of a state statute

that precludes concealment of identity under broad circumstances, the Court indicated that more

narrowly drawn laws are required to survive constitutional muster under the First Amendment.

Under that holding, the state cannot here rely upon fraud, trespass, breach of fiduciary duty

claims, and the UTPA to indirectly punish a protected right to limited, relatively unharmful

concealment of identity, media affiliation, and investigatory purpose in connection with

valuable, accurate, and truthful newsgathering activities.

38

Conclusion

For the foregoing reasons, Investigative Reporters and Editors, Inc., as amicus curiae,

requests that this Court reverse the judgment in favor of Food Lion, Inc.

Dated: April 2, 1998

Respectfully submitted, SIMPSON THACHER & BARTLETT By____________________________ David B. Smallman 425 Lexington Avenue New York, New York 10017-3954 (212) 455-2000 Attorneys for Amicus Curiae Investigative Reporters and Editors, Inc.