Virtually everyone is familiar with Thomas Jefferson's famous saying that if he had to choose between government without newspapers and newspapers without government, he would not hesitate to choose the latter. Journalists like to forget, however, that Jefferson also said: "The man who never looks into a newspaper is better informed than he who reads them, inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors." (Letter to John Norvell, 1807)

In a similar vein Dr. Samuel Johnson, over two hundred years ago, wrote in his own newspaper that "A newswriter is a man without virtue, who writes lies at home for his own profit." (The Idler, November 11, 1758)

Journalists sometimes seem to earn such reproach. Within the last few months The Boston Globe, CNN, Time, The New Republic, and the Cincinnati Enquirer have been knee deep in journalistic misconduct. Look, for example, at The Enquirer. It retracted a story on Chiquita Brands International (chiefly bananas) and fired the reporter, Michael Gallagher, who with inside help illegally entered Chiquita's private communications to write the story. It was for that that he was fired. The newspaper has not told us about the truth of Gallagher's report on Chiquita. The people remain uninformed, which makes it appear that the Enquirer sold its democratic birthright for a mess of bottom line porridge. We have no effective way of holding that paper accountable in meeting the people's need to know about Chiquita.

That illustrates our problem: How can the people in the United States hold journalists and news organizations accountable? (Of course similar questions arise in the practice of public relations, advertising, and entertainment. I address only the news media.) Almost all professions, except clergy, professors, and journalists, are held accountable by government, via some form of licensure. Those three professions, however, are shielded from government control by the First Amendment, and law is applied only in egregious cases as a sort of last resort.

Law does enter the accountability equation, of course, not only for commerce but also for journalism. In what follows I give primary attention to recent developments of the civil law in relation to two revolutionary journalistic cases where ethics and law met.

In American law historically, there have been only two significant causes of action specific to the press: libel and privacy. Libel has been with us quite awhile, but the defining case for the last three decades has been New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Sullivan and its progeny⁽¹⁾ established a very high hurdle for libel plaintiffs. Most plaintiffs must show "actual malice," i.e., that at time of publication a media defendant either knew a statement to be false or acted with "reckless disregard" as to its truth or falsity. Under Sullivan even the libel plaintiffs who prevail in trial courts seldom do so at the appellate level. The law of libel seems now to be quite media friendly.

A second legal cause of action specific to the press is the privacy tort. Privacy as a legal

right is relatively new in American law. It was essentially created by the famous Harvard Law Review article of 1890 by Warren and Brandeis.⁽²⁾ At this point in its short history the privacy tort recognizes four types of offenses: intrusion (unwanted and highly offensive invasion of someone's solitude, seclusion, or private affairs or concerns); publication of truthful private facts that are not "newsworthy"; false light and fictionalization (unauthorized publication of false information that does not rise to the level of defamation); and commercial appropriation ("appropriation of a person's name, likeness or personality for commercial purposes").⁽³⁾ Privacy law is developing quite slowly, and relatively few law suits on privacy have been brought against news organizations.

Now we get to the fun part, a veritable revolution in efforts to rein in the press through law. Two very recent cases, Cohen and Food Lion, have signaled yet a third application of common and statutory law to the press. These cases invoke what have come to be called "laws of general applicability."

The logic of the courts is simple enough. Laws that require promise keeping, duty of loyalty to an employer, and that forbid trespass and fraud are requirements that are universal in all free societies. There are no good reasons for exempting any citizen, including journalists, from such demands of the law. These duties are required not merely of Good Samaritans but also of minimally decent Samaritans. Until Cohen, however, there was no significant litigation against news organizations based on such laws.

Cohen v. Cowles Media Co.

The basic facts in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), and 445 N.W.2d 248 (Minn. 1989), were these: Dan Cohen was director of public relations for an agency that ran campaign advertising for the Minnesota Republican Party in several statewide races in 1982. Cohen offered some reporters from Minneapolis and St Paul information about the Democratic candidate for Lieutenant Governor, but only on condition that he would be treated as an anonymous source and not be identified. The reporters agreed to the condition and promised him anonymity. Cohen's information concerned documents he had dug up about the opposing candidate for Lieutenant Governor:

[She] had been arrested twelve years earlier for unlawful assembly-she had been part of a protest march-but the charge had been dismissed. More serious, she had been arrested a year after that for petty theft and had been tried and convicted. Preoccupied with the recent death of her father, she had apparently forgotten to pay for $6 worth of sewing material. A few months later, her conviction was expunged from the record, but the record remained retrievable.⁽⁴⁾
 

Editors at the Star Tribune (Minneapolis) and at the St. Paul Pioneer Press, however, concluded, among other things, that Cohen's revelation was a sleazy political trick and that it was a more important story than the information about the candidate. They decided to violate the reporters' promises of anonymity and to identify Cohen as the source. The party fired Cohen immediately.

Cohen filed a law suit against the newspapers for defamation. The case bounced around the courts for awhile, and the ultimate outcome was that the Minnesota Supreme Court found for Cohen under the doctrine of "promissory estopple" (which, interestingly, was not part of plaintiff's original case).

Promissory estopple means this: If party A promises certain things to party B, and A does not keep the promise, and B is harmed by having acted on the assumption that A would keep the promise, B may recover damages from A. (The rule is from the Common Law and most states in the U.S. have such statutes.) Under that rule of law the appellate court awarded Cohen $200,000 in compensatory damages, but struck down $500,000 in punitive damages that had been awarded by a lower court.

I take it that we would agree that the moral foundation of the law of promissory estopple is solid enough. Few people, probably including the Twin Cities editors, would reject the principle that those who make a promise have a moral duty to keep it. The moral problem in Cohen was that the duty to obey the law came into conflict with another and equally demanding moral duty to inform readers about what was really going on in a political campaign. Editors concluded that the duty to keep promises should give way in this instance to the more compelling duty to inform readers. I believe their decision was morally defensible, but the courts concluded it was not legally defensible. In any event, Cohen is where ethics and law met.

Food Lion v. Capital Cities/ABC Inc. et al.

Food Lion⁽⁵⁾

is a second instance of execution of laws of general applicability against a media defendant. The basic facts are that ABC News "PrimeTime Live" went undercover to investigate food handling and labor practices at Food Lion, a rapidly growing supermarket chain with headquarters in Salisbury, North Carolina. Two ABC News field producers, Lynne Dale and Susan Barnett, received allegations-including a number of sworn affidavits-of unsanitary and potentially lethal food-handling practices at Food Lion supermarkets and of unfair labor practices by the chain. Some of the allegations and affidavits came to ABC-via Chicago's "Government Accountability Project"-from the United Food and Commercial Workers union. The union had for some time sought, unsuccessfully, to unionize Food Lion employees. ABC News executives concluded, among other things: 1) that the story was of overriding importance to the public, 2) that the affidavits in hand were not sufficient (especially in light of their source) to prove the allegations, and 3) that ABC should conduct an investigation to determine whether the allegations were true or false.

By lying on job applications the ABC producers obtained jobs in three Food Lion stores in North Carolina and South Carolina where they worked for about two weeks, much of the time with TV cameras concealed under wigs. "PrimeTime Live" broadcast the Food Lion investigation November 5, 1992. Food Lion brought suit, not for libel but for 1) business fraud (lying on job applications), 2) trespass (fraudulently gaining entry to non-public areas of stores), and 3) failure of duty of loyalty to employer (working for ABC and not giving Food Lion full measure of time and energy due an employer). The jury in Federal District Court found for Food Lion on all three counts, levied compensatory damages of $1,402 and punitive damages of a whopping $5,545,750, an amount subsequently reduced to $315,000 by the trial judge. Both sides have appealed.

All societies need to protect vulnerable citizens from abuse by unscrupulous power brokers, whether governmental or commercial. It is characteristic of the human condition that the corrupt seek to hide their corruption. Society cannot always rely on government bureaucracies to carry out adequate inspections of such enterprises as supermarkets. That is because government agencies charged with supervision are themselves often corrupt and they are always inadequately staffed. From at least the time of Nelly Bly, in 1886, we in the United States have relied in part on journalistic investigations to keep an eye out for corruption, in both government and commerce. In the modern era the need for journalistic "watchdogging" has increased because of increasing complexity and power of our institutions.

Simultaneously, however, the need to protect the people from a commercially-driven and maverick press has also increased. The press is a critical agent of accountability overseeing powerful organizations, but the press itself is a powerful force that can wreak great havoc for individuals and for society.

Simply put, we need not only a press free enough to investigate centers of power unhindered by government, but also we need some way to avoid the harm a maverick free press can cause. The puzzler is: How can we protect ourselves from our own watchdog without pulling his teeth? Mr. Jefferson recognized the tension: We need a free press and we need to guarantee the press's responsible exercise of that freedom. That tension between those two morally good ends lies at the heart of our present condition.

I want now to look for a morally acceptable role of law-under the First Amendment-in watching the watchdog.

The answers may be difficult, but the question is simple: How might we strike the most satisfactory balance between too little and too much restriction of the press as we enforce laws of general applicability against news media defendants?

To begin with, it is perfectly apparent that Cohen and Food Lion represent a radical shift in the focus of law away from the substantive content of journalists' product to the procedures journalists use while gathering information. David A. Logan puts it this way:

Plaintiff lawyers in Cohen and Food Lion, in order to attack the press in a radically different way, have done a very clever end run around the well established laws of libel and privacy. Abandoning well developed law, they moved into an area of the law that is poorly developed. That is why these two cases are of such importance; they are revolutionary. Communications law is expanding and becoming ever more complex.⁽⁶⁾
 

Under the present circumstance, then, what ought the law to be? What changes in law do ethical concerns and simple justice dictate? My analysis suggests this: For violations of laws of general applicability (and perhaps for libel as well) the press should pay reasonable compensation for demonstrable loss, just as any citizen or company should. But journalists and news organizations should be exempted by law from all punitive damages. Why? (1) Because punitive damages are arguably a subtle and insidious form of "prior restraint," which the First Amendment usually prohibits. (2) Because juries often award ridiculously high punitive damages, and because punitive damages are never predictable, the threat of those damages will have serious and unacceptable effects on the press. The fear is that news organizations will engage in "self-censorship." Justice Marshall, in Rosenbloom v. Metromedia 403 US 29 (1987), expressed exactly that point: "The size of the potential judgment that may be rendered against the press must be the most significant factor in producing self-censorship-a judgment like the one rendered against Metromedia would be fatal to many smaller publishers."

It is for those reasons, then, that I suggest a standard⁽⁷⁾ that leaves compensatory damages in place but that eliminates punitive damages (except in extreme cases) against the press for infractions of the general law.

My suggestion may not be as far-fetched as at first might appear. Similar notions have been entertained by legal scholars, including proposals from the Annenberg Program⁽⁸⁾ and from the Iowa Research Project for the Reform of Libel Law.⁽⁹⁾

The idea of eliminating punitive damages against media defendants is also part of ABC's
appeal to the Fourth Circuit in the Food Lion case, which states:
 

Even if state law and the First Amendment would permit liability in the circumstances of this case, the award of punitive damages should be overturned. Subjecting the press to punitive damages for its newsgathering conduct introduces another important factor into the First Amendment balance-the threat to the press created by giving juries largely unfettered discretion to establish a potentially ruinous penalty for any act they deem wrongful. The additional burden on newsgathering and reporting caused by the threat of massive punitive awards greatly outweighs any state interest in awarding more than compensatory relief to those affected by the kind of undercover reporting at issue here.⁽¹⁰⁾
 

In order to establish an ethical solution-or to recommend policy-we must examine the purposes of compensatory and punitive damages. My own ethical justification looks like this: Compensatory justice is designed to redress actual and past harm, to repay the victim of injustice, to return the world to the status quo ante. Such compensation to victims has been in the moral canon at least since Deuteronomy was written, and it is a universally accepted moral (and legal?) rule. Moreover, the threat of compensatory awards will likely not deter journalistic information-gathering unduly. That is true because editors can calculate possible damages with relative accuracy, and thus they can know the extent of their risks when undertaking surreptitious gathering of information.

Unlike compensatory damages, however, punitive damages are highly unpredictable, as we saw in Food Lion. Editors have no idea of the size of their risk in undercover ventures, but they can predict that they would be substantial. That unpredictability carries with it a serious chilling effect. I doubt that ABC, for example, would have uncovered Food Lion's nastiness had ABC executives known what the investigation would ultimately cost.

Justice Marshall makes the point about the unpredictability of juries and its effect on the press. In his dissent in Bloomberg he wrote: "The manner in which unlimited discretion may be exercised is plainly unpredictable. And fear of the extensive awards that may be given under the doctrine must necessarily produce the impingement on freedom of the press recognized in New York Times." (Bloomberg v. Metromedia 403 US 83 (1971))

In addition to the argument from unpredictability, we must note an argument based on the purpose/end of punitive damages. Punitive damages are by definition designed to punish the offender, not to compensate the victim. But why punish the offender once due compensation is made? The clear answer is the deterrence function, to control that offender's future conduct by threat of further punishment.⁽¹¹⁾ A press punished harshly for morally justifiable deceptive investigations⁽¹²⁾-and undercover operations are deceptive by definition-will think twice before inviting that punishment a second time.

I suggest to you, therefore, that the imposition of punitive damages on the press is in fact, both in intent and in effect, an insidious form of PRIOR RESTRAINT on journalistic investigators, which is almost always unconstitutional under the First Amendment.⁽¹³⁾ For that reason, punitive damages amount to a direct violation of the moral and Constitutional imperatives of a free press. They are simply unacceptable morally and should be declared unconstitutional by the courts.

Let me now argue against my own conclusion. In an important lecture at the Washington and Lee Law School in 1990, Professor Jerome Barron⁽¹⁴⁾ addressed the general question of punitive damages. Barron made two very attractive arguments that would lead to conclusions different from the one I have drawn. The first is that if we were to disallow punitive damages to news media defendants altogether, we would risk disenfranchising individual and relatively poor media plaintiffs-precisely the group the law should protect most, the "little guys." Less well endowed plaintiffs often can employ lawyers, and thus gain access to the courts, only on a contingency basis. Contingency fees depend upon punitive damages. Thus to eliminate those damages is in effect to deny most private plaintiffs access to the courts. As Barron argues, "The availability of punitive damages may enable a lawyer to take a plaintiff's case on a contingency fee basis. Punitive damages thus become a form of empowerment. . . ."⁽¹⁵⁾

Barron's second argument against eliminating punitive damages is that such a policy would provide yet another disincentive to talented leaders from entering public life at all. Who wants to risk everything, to be left defenseless against press attacks? Professor Barron observes that "The decision to enter public life . . . opens one's whole life to impeachment by the media, . . ." (111) Recent history proves that it is difficult enough now to attract competent leaders into public life.
 

It seems obvious, then, that we have no clean and neat mechanism for resolving the tension between too much constraint on the free press and too little. Nevertheless, I think that the people of this nation need a press that is less rather than more held in check by courts. That is part of the reason I am worried by recent applications of "laws of general applicability" to the press and its information gathering. This 1990s revolution in media law has raised serious question about the threat of press "self-censorship" caused by jury discretion to award punitive damages to media plaintiffs. Until better solutions present themselves, and despite the attractiveness of other solutions, I have tentatively concluded that we should exempt news media defendants from punitive damages altogether. That is how important a robust and free press is to the people, i.e., to those human beings who will remain at the mercy of such entities as supermarkets, nursing homes, and mental hospitals.

Now, with the following anecdote I shall finish. This is said to have come from Benjamin Franklin:

My proposal, then, is to leave the liberty of the press untouched, to be exercised in its full extent, force and vigor; but to permit the liberty of the cudgel to go with it. Thus, my fellow citizens, if an impudent writer attacks your reputation, dearer to you perhaps than your life, you may go to him openly and break his head. If he conceals himself behind the printer and you can nevertheless discover who he is, you may in like manner waylay him in the night, attack him behind, and give him a good drubbing.

I don't know about you, but as for me and my house, we stand with old Ben!
 
 
 
 
 

1. See Herbert v. Lando, 441 U.S. 153 (1979); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1975) coupled with Associated Press v. Walker, 388 U.S. 130 (1967), and Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Of paramount importance are Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and St. Amant v. Thompson, 390 U.S. 727 (1968) (on "reckless disregard"). See also Harte-Hanks Communications, Inc. v. Connaughton, 491- U.S. 657 (1989) on "purposeful avoidance of the truth" as "actual malice." On falsity and attributed quotations, see Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).

2. Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review IV (December 15, 1890): 193-220. Among the most influential law review articles of all time, this one was written not about government intrusion into personal affairs but about the press hounding the Warren family unmercifully. Later appointed to the Supreme Court of the united States, Justice Brandeis wrote a stinging dissent recognizing the right to be left alone as "the most comprehensive of rights and the right most valued by civilized man." Olmstead v. United States, 277 US 438, 478 (1928).

3. Bruce W. Sanford, Libel and Privacy, 2^nd ed. Prentice Hall Law & Business, 1991, pp. 523-586. Sanford is widely recognized as among the country's foremost scholars of privacy law.

4. This statement of the facts was written by Donald M. Gillmor, in Louis W. Hodges, ed., Social Responsibility, XIX (1993), pp. 24-25.

5. This case is still in litigation. It was first tried before a jury in the United States District Court for the Middle District of North Carolina, in Greensboro. Both plaintiff and defendant appealed to the United States Court of Appeals for the Fourth Circuit, in Richmond, Virginia. The appeal was argued on May 4, 1998, and as of this writing it has not been decided. The case will likely be appealed to the United States Supreme Court, no matter what the decision by the Fourth Circuit.

In the interest of fairness and objectivity, I must disclose here that I testified in the trial court as expert witness in ethics for defendant ABC News et al.

6. Just for fun, complexity is inherent in law and in the regulatory rules governments use to enforce statutory requirements. Here's proof: The Lord's Prayer is 66 words, the Gettysburg Address is 286 words; and there are only 1,322 words in the Declaration of Independence. Yet government regulations concerning the sale of cabbage total 26,911 words!

7. Other and similar standards have been recommended by others. See Logan, op. cit., 164, who states as his thesis: "If a reporter violates 'generally applicable' state tort law (e.g., commits fraud and trespass), she should be subject to liability and an award of compensatory and, in extreme cases, punitive damages." Another scholar recommends that punitive damages be allowed in libel cases only when "actual malice" is established. See Richard A. Epstein, "Was New York Times v. Sullivan Wrong?" 53 U. Chicago Law Review, (1986) 804.

8. The Annenberg Washington Program, "Proposal for the Reform of Libel Law" (released in 1988 and available at no charge from the Annenberg Washington Program in Communications Policy Studies of Northwestern University, The Willard Office Building, 1455 Pennsylvania Ave., NW, Suite 200, Washington, D.C. 20004) included two relevant proposals regarding libel law. In the case of a declaratory judgment on an action brought by a plaintiff, no damages at all would be awarded (Annenberg Proposal, Section 4). Section 9 states: "No punitive damages shall be permitted in any action for defamation." The full text of the Annenberg Libel Reform Proposal and a commentary on it are available in Rodney A. Smolla, "The Annenberg Libel Reform Proposal," in John Soloski and Randall P. Bezanson, eds., Reforming Libel Law, New York: The Guilford Press, 1992, pp. 229-286. Also see Brian C. Murchison, et al., "Sullivan's Paradox: The Emergence of Judicial Standards of Journalism," North Carolina Law Review,73/1 (November 1994). And Randall P. Bezanson et al., Libel Law and the Press: Myth and Reality (Collier/Macmillan, 1987).

9.

10. From the Opening Brief for Appellants/Cross-Appellees Capital Cities/ABC, Inc. et al. in the United States Court of Appeals for the Fourth Circuit, filed January 12, 1998, p. 44.

11. "The stated purposes of punitive damages almost always include (a) punishment or retribution and (b) deterrence." See Dan B. Dobbs, The Law of Remedies, West Publishing Co. 1993. Pp. 453-455. Also Dan B. Dobbs and Paul T. Hayden, Torts and Compensation, 3^rd ed., 1997, pp. 784-788.

12. For a statement about moral justification of deceptive techniques of information gathering by journalists, see my article "Undercover, Masquerading, Surreptitious Taping," Journal of Mass Media Ethics, Vol. 3, No. 2 (Fall 1988), pp. 26-36.

13. I am aware that "prior restraint" ordinarily addresses the situation in which news organizations possess information that they are restrained from publishing. I am obviously deviating somewhat from that common meaning.

14. Professor Barron is Lyle T. Alverson Professor of Law at The George Washington University.

15. "Punitive Damages in Libel Cases-First Amendment Equalizer?" Washington and Lee Law Review, vol. 47, no.1 (Winter, 1990), p. 122.