ABC's Food Lion Lies: A Study in TV Deception

By JOSEPH C. GOULDEN

You've heard a small part of a big media story--the decision by a Federal court jury in Greensboro, N. C., on January 22, 1997, that ABC must pay the Food Lion grocery chain $5,545,750 in punitive damages for a 1992 segment on its PrimeTime Live magazine show. ABC charged the chain with deliberately selling spoiled food. A jury of 12 Carolinians found that ABC got the story by fraud, and in essence that it had violated the standards by which decent people live and work.

But even in its disgrace, ABC did not have the dignity to admit that the challenged segment was grossly inaccurate and deceitful. Instead, ABC executives wrapped themselves in the First Amendment--pertaining to Freedom of the Press--and embarked upon a deliberate distortion of the issues involved. The day of the verdict, Roone Arledge, the president of ABC News, issued a written statement repeated by much of the media that in challenging the network's investigative techniques, "The company has done so without ever challenging the truth of our broadcast."

Arledge's statement was as false as was the segment attacking Food Lion. In both its public statements and thousands of pages of court filings, Food Lion indeed had challenged the veracity of the segment, and in damning detail.

Arledge and ABC lawyers knew this fact, but nonetheless he and other network officers repeated one of the more flagrant lies in the history of American journalism.

Arledge based his statement on the fact that Food Lion did not sue for libel, but for breaches of North Carolina law pertaining to trespass, fraud and breach of duty. This was a legal stratagem. Nonetheless, Food Lion knew from the moment that the PrimeTime Live segment aired that ABC had lied, and outrageously,and so stated.

But not until the grocery chain obtained some 45 hours of video "outtakes" [unused film] did its lawyers realize the extent of ABC's mendacity. ABC lawyers fought tooth and nail against the release of these outtakes, during which the one-year statute of limitations for a libel case expired. With the video evidence in hand, Food Lion sought to extend its case to include libel. ABC successfully kept the libel count out of the suit.

This report is intended to set the record straight about ABC and Food Lion.

--It will tell you how a hostile union enlisted ABC News as a witting partner in a campaign to destroy Food Lion, and how its officers helped ABC producers concoct the lies that enabled them to get jobs at the grocery chain.

--It will demonstrate how the undercover ABC producers performed much of the food handling mischief captured by their concealed cameras, and how the narration by network star Diane Sawyer did not match the images being shown to the public.

--It will document how ABC producers tried to lure Food Lion workers into violating company rules on the handling of food.

--And finally, it will show you how ABC News, the nation's most powerful TV network, set facts on their head in an attempt to deceive the public as to the significance of the jury verdict.

ABC's conduct in the Food Lion affair is a case study in media malpractice. It is a story of repulsive dishonesty. It does damage to the concept of a free press which should be dear to both the average citizen and to the professional journalist. And it tells, as a spokesman for Accuracy in Media told ABC News the day of the verdict, "why journalists now have less credibility with the American public than do professional wrestlers." ABC's "World News Tonight" did not air that quotation, because it cut to the truth of the ABC-Food Lion scandal.

Part I: A Union's Revenge

A dirty secret which ABC News did not share with its audience was the origins of the scheme to smear Food Lion. ABC producers wittingly became accomplices of the powerful United Food and Commercial Workers union in a campaign intended to destroy the grocery chain.

Food Lion is an uncomfortable bone in the throat of the UFCW. The company began in 1957 as a single store [Food Town] in Salisbury, N. C., and its low price policy enabled it to grow to 22 stores in 1974, all in North Carolina. It was bought that year by Delhaize, a European supermarket chain, and expanded rapidly under the new name of Food Lion to more than 1,000 stores in 1994, with 65,500 employees and gross annual sales of $8.2 billion. A $1,000 investment in 1957 would have matured into stocks worth $31,200,000 by 1992. The company claims that its prices average 15 percent lower than competitors.

The burgeoning giant was an attractive target for the UFCW, with 1,123,000 members [1979] in food stores, supermarkets and meat packing houses. Under federal law, 30 percent of workers had to

sign cards asking the National Labor Relations Board to hold a representation election. But workers who already earned salaries and benefits equal to or higher than those at unionized stories saw no reason to pay dues to the UFCW. The campaign flopped. The UFCW fell far short of the 30 percent minimum and abandoned its campaign.

The UFCW's embarrassing failure followed a trend distressing to labor barons--the fact that workers no longer consider unions relevant. Membership has declined to less than 15 percent of the work force in 1996 from a peak of 35.4 percent in 1945. Of the 16.4 million workers in unions affiliated with the AFL-CIO, 6.9 million work for local state and federal governments.

Nonetheless, even in defeat the UFCW wanted revenge. With much public fanfare, the UFCW launched what labor people call a "corporate campaign"--to punish Food Lion and its owners because employees refused to unionize. The UFCW's motive was economic. If non-union sentiment spread beyond Food Lion, the union risked losing dues income from workers in other chains. By hurting Food Lion, the UFCW would bolster the market shares of other chains, thereby expanding its own membership.

The UFCW's strategy was not any great secret. William H. Wynn, the UFCW president, told Progressive Grocer magazine in January 1986, "Our goal is simple: to hurt the employer economically."

Another union official, Thomas McNutt, Sr., told Regardie's, a Washington business magazine, in July 1988, that the UFCW intended to "bleed" Food Lion economically "until they either agree to do business with him or are forced out of business." Regardie's quoted McNutt as saying, "If we can't organize them, the best thing to do is to erode their business as much as possible."

The ease with which the UFCW coopted ABC News is illustrated by the fact that two producers working a thousand miles apart snapped up the idea when it was floated before them separately. An ABC producer named Lynne Litt, who worked the network's Atlanta bureau, had never done a PrimeTime Live Segment. [*]

[*} Litt married during the course of the litigation and she eventually was called Lynne Dale in court papers; for consistency, references herein shall be to Litt.

As is true of other ABC correspondents and reporters, Litt was alert for a story that could be "sold" to one of the network's many magazine shows in the hope of promotion or pay raises. Thus, as she said later when deposed by Food Lion lawyers, she was most receptive at the story tip she got from a Washington publicist named Neel Lattimore. A veteran activitist, Lattimore has a long background in public relations for labor unions. He is now press secretary for First Lady Hillary Rodham Clinton.

[There is another tenuous Clinton connection to the litigation: Randall Turk, who signed many pleadings as lead counsel for ABC, is also the lawyer for former Craig Livingstone, the resigned White House personnel security director at the bottom of the "Filegate" scandal, the legally-questionable obtaining of hundreds of secret FBI files for White House use.]

According to Litt, Lattimore steered her to Nick Clark, a staff member of UFCW, and she met several former Food Lion workers who had been brought to Washington to testify at congressional hearings on wage-hour issues. She wrote a story proposal focusing on union claims that Food Lion employees were forced to work "off the clock," that is, overtime without compensation. These subjects had been the focus of aggressive UFCW litigation against Food Lion for several years, with the union paying lawyer fees for former employees who were willing to sue the chain.

Despite this background, Litt would later claim that she knew nothing of the "corporate campaign" which the union was waging against the chain.

But the UFCW's seminal role was well-known to another ABC producer before whom the same story was floated in the same time frame. She was producer Susan Barnett, and she was no novice in the field at the use of media as a propaganda tool. Before joining ABC, she worked for the Better Government Association, a self-styled watchdog group in Chicago. While at BGA, she said in a deposition, she learned how "public interest groups" manipulate the media to promote their causes.

Although the Food Lion story came to Barnett in round-about fashion, she knew its provenance. The first contacts were Elaine Dodge and Tom Devine of a Washington group called the Government Accountability Project, or GAP, an offshoot of the Institute for Policy Studies, a far-left think tank. GAP was working with the UFCW to interview former Food Lion workers in a search for wage-hour violations which could be used to harass the chain in court.

Barnett spoke to Elaine Dodge on Jan. 30, 1992. According to her notes, Dodge told her that the UFCW "wants to do something on a grand scale" for PrimeTime Live. Dodge had affidavits which she would "send w/union's permission." Barnett was walking familiar ground in dealing with the UFCW. PrimeTime Live in the same year worked on UFCW-inspired exposes on Montfort, Inc., a Midwest meat-packing house, and on supermarket foodscanners. UFCW official Allen Zack testified on deposition, "I have dealt with Susan Barnett over the years on a number of different stories."

GAP gave Barnett a sheaf of "affidavits" from the workers--actually, unsworn statements taken by summer interns, some of which had been rewritten by Dodge. The bulk had not even been signed. More than half of these persons had been involved in litigation against Food Lion, and hence could not be considered objective sources. ABC's eventual on-camera interview pool consisted of seven persons supplied by the UFCW. Only one was still employed by Food Lion. The others had been away from the store from one to almost five years. But all seven had something in common: each was being represented, without cost, by UFCW lawyers in suits against Food Lion [Anchor Dianne Sawyer let pass without challenge the assertion by one woman, "I don't even know these gentlemen."] Another claimed he feared being fired for talking about Food Lion on the air. In fact, he had already testified at a Congressional hearing and was a plaintiff in three suits against the grocer.

On the segment, Diane Sawyer mentioned in passing that some of the sources were suing Food Lion, but she did not say that every source which ABC interviewed was supplied by UFCW. Here is what she said in acknowledging sources of the story:

"A final note. We want to acknowledge the Government Accountability Project, a kind of support organization for whistle blowers. They first called our attention to the growing sanitation and food-handling complaints made by workers from Food Lion." There was a major omission from this credit line. Sawyer did not tell viewers that the UFCW, which was trying to destroy Food Lion, helped the producers lie to go undercover in its stores.

Sawyer continued, "PrimeTime went undercover so we would have independent verification of what our 70 sources told us." But was this sweeping claim true? Producer Litt admitted to this misrepresentation in a deposition in July 1996:

Q. Is it fair to say that at the time you went undercover at Food Lion you had not spoken to 70 sources?

Litt. Yes.

Q. Would it be incorrect to say that the reason that you went undercover was to confirm allegations about Food Lion that you had received from 70 different sources?

Litt. Yes.

Many of these interviews eventually got onto the air, but without any supporting undercover video evidence. Thus a reasonable question: Did the network put any credence in the interview statements? Under Federal court procedures, each side stipulates in advance the truth or falsity of various statements so that trial time won't be wasted on undisputed issues. In one of these court pleadings, the network said that it "admits that one of the reasons ABC conducted an undercover operation at Food Lion was

that it did not consider the reports it had received about Food Lion to be sufficient information upon which to base a PrimeTime

Live segment."

But ABC was unwilling to admit the union's role in the story even after the jury verdict. Roone Arledge's formal statement said only, "We had reports from a number of current and former Food Lion employees about deceptive, unsanitary and unsafe food-handling practices that were said to be widespread in its stores." Arledge did not mention that the UFCW had inspired these official investigations, much less its partnership with the union.

In a lengthy analysis of corporate campaigns published in 1995, Food Lion accused the media of being "de facto allies" of unions who want to hurt their targets. The paper asserted:

It is a commonplace assumption among the public that journalists, acting autonomously, come up with all of their own story ideas and, through independent research, uncover all of their 'facts.' The truth is, however, that ideas from stories come from many places, most of them outside the news organization itself, and the information that journalists gather has often been 'conditioned' by some individual or organization with a vested interest in the story.

Journalists working under pressure to produce work on a regular basis develop networks of contacts which they routinely check for ideas or comment, and they are contacted by still other outsiders--organizations, officials, publicists--trying to interest them in a given story. In practice, this means that journalists are often dependent for their information on interested parties, in ways of which they are unaware.

Moreover, journalists tend to operate under a series of common norms about what constitutes a 'newsworthy' story. Included are such criteria as timeliness, drama and conflict, the involvement of interesting or well-known personalities, and a measure of audience interest.

The unions--like other special interests--are skilled at providing for the needs of journalists by staging so-called media events, by providing ideas and background research, and perhaps most importantly by generating the appearance of conflict, in each instance with presumed failings of the target company as the subject of the story.

The pre-packaged story provided by the UFCW was enough to satisfy Susan Barnett. She wrote a "story idea" memo of some 500 words length entitled "Something Rotten At Food Lion" without even a perfunctory attempt to get Food Lion's side of her story. Some excerpts give the flavor of how she intended to present her piece:

"Welcome to the great American grocery store, where...they alter expiration dates, rotten meat is ground into hamburger and deli salads, and that fish--well, they washed it in bleach and perfumed it with lemon...

"If you shop at one of their 800+ stores, say employees of Food Lion, you're paying good money for bad food. And Food Lion, one of the nation's fastest growing supermarket chains covering 11 states, they say, is laughing all the way to the bank.

"The warehouses are worse...where mice nest in bulk foods for the stores' bakery goods--shake a bag of rice and mice scatter....meat and poultry sit in the hot sun on the docks for hours because there is either no room in the refrigerated areas, not enough employees to move the shipments expeditiously, or the refrigerated units are broken..

"I propose that we go undercover at Food Lion to see just what lurks in the grocer's aisle..."

Barnett later admitted to Food Lion lawyers that she did not have personal knowledge of any of these allegations. She claimed that she "didn't remember" asking about any conflicts between UFCW and Food Lion. She also claimed to share Lynne Litt's ignorance of the highly visible "corporate campaign" which UFCW was waging against the grocer. These statements were outlandish, for Litt met with the complaining clerks the very day they testified before a House committee concerning their grievances with Food Lion. We are also baffled about how any person in the news business could have embarked on a story concerning Food Lion without running across any of the UFCW campaign.

Here is where ABC News first went astray, in terms of journalistic ethics. Instead of "reporting" a story, the network set out with a preconceived idea of what would be put on the air. This is a flagrant violation of standards of journalistic fairness. The segment that ABC aired months later closely tracked the original story memo.

II: ABC's Undercover Operation

Ira Rosen, senior producer for PrimeTime Live, decided to merge the Barnett-Litt proposals into a single story, and approved the women's scheme to go undercover in Food Lion stores. Food Lion lawyers would ask Rosen later whether anyone at the network "raised any question as to how two producers as far apart as these two were coming up with the same story idea?" No, Rosen said, "It was one of those coincidences." We find astounding his lack of editorial curiosity.

Enter once again the union, for the women needed some grocery background to qualify for Food Lion jobs. A UFCW official got Litt into an Atlanta supermarket where she observed meat wrappers at work, and later helped her obtain a short-time job in another Atlanta grocery. He procured a false reference letter for her from a grocer in Uniontown, Penn. A former Food Lion worker provided a bogus reference for Litt to use on her job application form.

Barnett, meanwhile, was observing deli work in New York City, courtesy of the UFCW, and getting a false reference from Cub Foods in Chicago, a store where she never worked. Both women told a plethora of lies on their employment applications. Asked why she wanted to work for Food Lion, Litt wrote, "I really miss working in a grocery store, and I love meat wrapping. I heard Food Lion is a great place to work. I would like to make a career there. I will work very hard. I am not afraid of hard work." Litt persuaded her Atlanta dentist to let her use him as a reference. Barnett transformed the Better Government Association into "BGA Office Supply." Her former boss there was alerted to support her story.

"So you asked him to lie?" Food Lion lawyer John Walsh asked Barnett during a deposition. "Yes," the ABC News producer replied.

Walsh asked Litt, "Did you ask yourself what, in your work as a journalist, would justify telling lies to get information?"

Litt replied, "I knew from my ten years' experience at ABC News that there are some limited circumstances in which it's appropriate to tell a lie."

In all, five persons working for ABC sent a total of 20 job applications to various Food Lion stores. Only Barnett and Litt actually took jobs.

But Litt apparently began to have qualms about the tack ABC was taking. Guidelines of ABC News are strict: undercover techniques are to be used only when no other alternative exists to get a story. ABC had interviewed a handful of past and present Food Lion workers, all UFCW activists, who gave horrifying accounts of mishandling of food. But would these unfriendly sources be trusted? Were they telling the truth, or inflating isolated incidents to help their union smear Food Lion? And what objective evidence existed to support their claims, such as health department inspection reports?

On April 1, 1992, Lynne Litt talked with ABC lawyer Jonathan Barzilay and Walter Porges, then the vice-president for broadcast standards. Subsequently she wrote what comes across as a for-the-record memorandum: Barzilay and Porges, she related, "said they were worried we would find small violations here & there & and make it into a big problem that it is not. I agreed. .."

So Litt called her boss, Ira Rosen. According to her memorandum, "Ira said don't worry about it. Just shoot everything, collect all stuff & bring to NY; editorialize later. I'm worried."

By any interpretation possible, Litt's memorandum was a red flag of warning that the network was getting onto shaky ground. Porges's job was to keep ABC News off the destructive shoals of inaccuracy and unethical practices.

But Porges interpreted his watch dog duties generously. In a 1993 libel case, he was asked by opposing lawyers what he did when someone complained about a story. Oddly, Porges would do no investigation of his own to determine whether the complaint was valid; he would simply have the responsible producer write a rebuttal memorandum which he would adapt as an answer under his own name--in essence, letting the challenged reporter do a report card on his own work.

Porges also claimed clairvoyant powers in evaluating a news report. He testified, "Believe it or not, one can read a script and/or view a television segment and, based on what one sees, with enough experience, one makes a judgment that what one reads or sees is fair."

This statement is one of the more damning things that ABC News has ever said about itself. It perhaps explains why the network has been on the losing side of half a dozen libel cases in the 1990s.

With the network's designated watch dog asleep in his kennel,

Litt and Barnett set about planning their undercover work, working with a company that specializes in covert photography for news shows. In depositions, lawyers for the outside companyinsisted that its techniques not be publicized. Nonetheless, Litt's testimony gave hints of how she and Barnett worked. The hidden camera she used was "slightly thicker than a lipstick container...five or six inches long...the lens of the camera was as thick as the head of a pin." The women concealed them in wigs, which caused problems. In the words of Ron Hill, one of the ouside cameramen, "It's a free-floating camera that's on top of the head, and there is no way to judge your shots, so it involved a lot of practice." The women would go to a van in the parking lot during lunch to change batteries and film cassettes.

Both producers had equipment trouble. Litt said one of her tapes came up "completely blank." Nor would the tape recorders always catch conversations. During the work Hill suggested hiding an unattended covert camera in a store to snoop even when the producers weren't working; ABC lawyers vetoed this idea.

In addition to the covert photography, Litt tried to get into the store computer--actually, the time clocks, it developed. But she did not have the proper identification codes. "I tried on several occasions to punch up time clock information in order to see if someone was clocked in or not." Barnett tried (and failed) to do the same.

Litt worked for Food Lion about two weeks; Barnett one week. So what did they found?

The segment closely tracked the story memo which Barnett wrote months earlier. Correspondent Diane Sawyer, who narrated the show, claimed, "we remind you PrimeTime went undercover so we would have independent verification of what our 70 sources told us."

The "verification" consisted of grainy video images and a number of quotes from employees who were cooperating with Barnett and Litt. For instance, former employee Jean Bull said, "They take that pork that's already starting to get a slime to it and it gets what they call a halo, a kind of green tinge to it. And they take and put that in the...sausage grinder, then they put it back out there for anywhere from seven to ten days as fresh, home-made sausage. And it's rotten."

Other interviewees claimed that Food Lion encouraged employees to soak spoiled ham or fish in Clorox to get rid of rotten odors, to sell cheese that had been gnawed by rats, and to remove the "sell-by" dates from meats and other goods with nail polish remover.

Another former employee, Vonnie Simpson, said, "Fish has a three-day shelf life. Okay, after three days you're supposed to reduce it and sell it or you throw it away. But we don't do that. We soaked the fish in baking soda and then we'd squirt lemon juice on them and put it back in the case and sell it for three more days...The fish would be so rotten it would crumble in your hand."

The images tumbled out for more than 12 minutes: hands packaging meat while Sawyer's voice-over talked about extending sales dates; shot of filthy meat-cutting equipment; deli food supposedly left on sale long after its expiration date.

Towards the end, Diane Sawyer acknowledged the help of the Government Accountability Project on the story, and she said that some of the interviewees were suing Food Lion on wage-hour issues. What her script did not say was the dominant role the UFCW played in inspiring story, in supplying every source interviewed, and in helping the women lie to get their jobs.

The combination of Sawyer's voice and the undercover video was powerful. Millions of Americans who watch PrimeTime Live reacted in disgust.

At Accuracy in Media, we watched the segment several times, and an important point soon became clear: regardless of what anchor Sawyer was telling viewers, the undercover videos did not match what was being shown on the screen. Where, for instance, was photographic proof that workers doused rotten fish in Clorox? And how could the stench of the powerful detergent be expunged from any fish so exposed? To borrow language from the ABC script, the segment seemed "so rotten it would crumble in your hand."

We would later tabulate 16 specific charges of misconduct made against Food Lion; as shall be seen, the vast majority proved either utterly false or misrepresentations of what actually happened in the stores. But not for many more months would the extent of ABC's deception be proven.

In the meanwhile, Food Lion suffered--just as the United Food and Commercial Workers had intended when they enlisted a witting ABC News as their ally in a "corporate campaign" designed to destroy a business.

III:Aftermath of a Lie

Damages to Food Lion began even before the segment aired. In late October 1992 the ABC network began airing promos on the segment aimed at building audiences for the so-called "sweeps period" that would begin in November. Food Lion stock dropped $214 million in a single day, and another $666 million the two days immediately before the broadcast as the promo ads continued. The days after the airing, stock plummeted another $629 million, for a loss of aobut $1.5 billion in a single week of trading days.

There was more. During the 18 months following the segment, Food Lion sales dropped by $4.6 billion, with a loss of profits estimated at $233 million. Food Lion cancelled plans to open new stores and laid off several thousand workers.

ABC News knew the economic consequences of the segment. Richard Kaplan, a senior producer for PrimeTime Live, said in a depositon on Aug. 23,1996: "Well, you always consider that there is an impact to the company, which impacts potentially their stockholders or employees...That's a downside that you have to consider, people's lives are affected, so you must consider that."

To several Food lion executives, Sam Donaldson, a co-anchor of PrimeTime Live, seemed to be gloating when he did one of the four follow-up reports that aired on ABC news on Jan. 7, 1993: "After

our report aired, Food Lion reported sales fell by 9.5 percent in November, while the company's stock dropped by about 20 percent. Because business is down, Food Lion announced it will not open as many new stores in 1993 as originally planned..."

Food Lion's initial impulse was to sue ABC for libel, given the distortions and inaccuracies that marred the segment. But on sober examination, lawyers for the grocery suggested otherwise. As stated by Richard L. Wyatt, Jr., of the Washington firm of Akin, Gump, Strauss, Hauer & Feld, "As every media organization well knows, the United States Supreme Court, in the interests of providing maximum protection to free speech, has made libel cases so difficult to win that even demonstrably false speech--like PrimeTime Live's show on Food Lion--is protected."

Wyatt continued that merely proving that the segment was false would not suffice: "Food Lion would also have to prove ABC's 'actual malice'--i. e., that ABC knew the statements on the show were false, or recklessly disregarded their falsity. Moreover, unlike in most other civil litigation, Food Lion could not prevail by proving that ABC had probably acted with actual malice; libel requires proof of actual malice by the difficult 'clear and convincing evidence' standard."

At the time, Food Lion lawyers now say, they had no idea of the scope of ABC's falsification,for they had not seen unused footage taken by the undercover producers.

So Food Lion chose an alternative route to libel, one which the media had trouble understanding. It sued ABC News under provisons of North Carolina law concerning fraud, based on the false job applications submitted by Litt and Barnett; trespass, because ABC gained access to Food Lion properties under false pretenses; and civil conspiracy. Additionally, the two producers were sued for "breach of the duty of loyalty," under provisions of what lawyers call the "serving two masters rule." As Food Lion lawyers stated, the duty of loyalty is "one of the oldest principles of common law"--essentially, the obligation to act solely for the employer and not adversely to its interests. "If companies cannot rely on their employees to meet these responsibilities, they simply cannot function."

One of the lawyers for Food Lion told us the chain had a "slam dunk case," given ABC's on-air admissions of how it got the story through undercover work.

Food Lion filed a separate suit against the United Food and Commercial Workers for the union's role in inspiring the telecast. Food Lion sued under a law which Congress originally passed to fight the Mafia--the Racketeer Influenced and Corrupt Organizations Act, or RICO. The suit charges a conspiracy including the UFCW, The Kamber Group, a Washington public relations firm which works for the UFCW and union; and various union officials. [This suit is headed for trial.]

With the filing of the suit, Food Lion demanded copies of the 45 hours of undercover video which ABC made during its research. ABC stalled, claiming the tapes were privileged. Not until the first days of December 1992 did ABC surrender some 43 hours of videotapes, but in a form in which much of the sound was inaudible. Unbeknownst to Food Lion at the time, ABC withheld almost three other hours of tape.

The delay was significant, for it exceeded the one-year statute of limitations on filing a libel suit.

The opposing lawyers spent three years wrangling over the tapes--whether ABC would supply missing footage in usable fashion, and whether ABC could withhold certain interviews on the grounds of journalistic privilege. That additional footage was not produced untill February 1996. As Food Lion lawyers stated, "Given this series of events, one must ask: If the tapes supported ABC's position in this dispute, and if ABC had nothing to fear from its own tapes, why did the network go to such extraordinary lengths to keep the tapes out of Food Lion's hands?" The stringent effort to keep the outtakes secret "permits an inference that the removed footage is harmful to ABC's case," the lawyers said.

IV: The Truth of the Tapes

The video outtakes established the extent of ABC's fraudulent behavior. None of the undercover video supported the narrative claims about mishandling of food. Instead, much of the supposed "misconduct" was done by Susan Barnett and Lynne Litt. And ABC did not air numerous sequences in which Food Lion workers rejected suggestions by the producers that they violate company rules.

As mentioned earlier, our review of the video showed 16 specific allegations of misconduct by Food Lion workers. There are three, perhaps four, instances where workers seem to have violated company rules against selling outdated food: a worker cutting the edge off pork chops past their don't-sell date; and packaged ham and turkey breasts being kept in display counters.

Nonetheless, we had trouble accepting the network's claim even on these items for several reasons. First, ABC's film is so poor that the dates are indistinguishable, and as we found in instances, Diane Sawyer's narrative does not always match the pictures being shown. Second, and perhaps even most importantly, ABC does not establish that Food Lion workers were actually responsible for the glitches. In several instances, the outtakes show producer Susan Barnett looking at outdated food in a cooler and simply shoving it out of sight. Her job, as an employee, was to toss such food. So the "misconduct" she filmed well could have been her own. Our suspicions are intensified by the manner in which ABC selectively edited its video, leaving out material which showed supervisors instructing its undercover producers on proper procedures.

In other instances, the "evidence" consists solely of a statement by a disgruntled unionist (the claim about dousing fish and ham in Clorox, for example).

In an exchange typical of many which challenged ABC's working premise, Litt asked employee Isaac Pack, "Do they get mad at you when you throw out a bunch of stuff?"

Pack replied, "No, if you throw it away when it's bad. They're not particular on that. They want you to watch what you throw away. Like I said, I'm supposed to put one day on this fish. In the morning, I'm supposed to throw it away. That's company policy."

Another worker, Brian Veltri, was shown dumping old frankfurters from a display tray. He and Barnett got into a long discussion about leftover food. "What a waste," Barnett said. "I guess you could save some of it. I'm kinda' surprised." Another worker chimed, "Man, I could feed the dorm at Coastal [a local college] with all the food I throw away."

Employee Mike Fulbright told Litt about a colleague being fired because he didn't pay attention to the color of meat in a case and reduce the price. He said there was "no pressure" about throwing away outdated fish. Barnett was shown telling a deli manager the date on chicken salad had expired. Toss it, he ordered.

One of the more damning segments purportedly showed Barnett talking with another employee, Pat Alcorn, the deli cook, in a conversation that implied that Food Lion intentionally sold rotten chicken. Here is the full exchange. ABC aired only the portion shown in bold-face:

Barnett: Really? Ooh, yeah, I believe it. I wouldn't eat it. It smelled terrible.

Alcorn: Yeah. I wouldn't cook it the other day. I refused to cook it and I dumped it.

Barnett: You threw it away?

Alcorn: I came in and cooked the other day, not this week, last week. I smelled the water, smelled the chicken and I went over there to get fresh packs of chicken that was in the cooler andthey were all March 31st and it was April 8th when I was standing there cooking.

Barnett: March 31st was the expiration date and it was on April 8th?

Alcorn: And April 8th was the day I was standing there cooking and the night before, they had put March 31st meat in that water. So they put rotten meat in that water.

Barnett: uh huh.

Aocorn. And it stunk and I didn't want to fix it. And they said I could go ahead and fix it, just wash it off and go ahead and fix it. And I went over and told Mr. Alexander and I made him cover over and here and smell it. told him that they told me to go ahead and fix it. He told me to dump it, go back and get fresh chicken, then he stood there and said, 'Use your own judgment anytime you have to. That's what it's all about. You just got to use your own judgment, make your own decisions.

Barnett: Um hum.

Alcorn: And I did, and I have from then on.

The full exchange demonstrates that Pat Alcorn had caught an error--the "they' giving the directions was never identified--and that when she complained to a manager [Alexander] he told her to toss the chicken and use her own judgment on what to cook.

In another episode, ABC claimed that when chicken became outdated, Food Lion's policy was to douse it with barbecue sauce and repackage it so as to get around the "expired" sales date. It showed worker Pete Johnston talking to Susan Barnett. He stated: "Open them up and put on a soaking pad, a couple of them in a tray, this way we can put three days date on them."

True, but grossly incomplete, for Johnston was talking about something else entirely, as the full outtake showed. He had just explained to Barnett that Food Lion sometimes broke down large packages of chicken to packs containing one or two breasts and some drumsticks. ABC did not air this exchange:

Johnston: You're allowed to put three days on that.

Dale: OK.

Johnston. And put it in small packs.

Dale. OK.

Johnston. Then you're allowed to put three days on it.

Dale. Alright.

Johnston. OK.

Dale. Is that, it's not out-of-date at that point. You're just breaking it down and changing it into different packs.

Johnston. Right.

During Litt's first day at work, according to the outakes, Johnston instructed her to put fresh fish out for three days, and if any was left to check it, and if it was still good, sell it for an additional day for a reduced price. But what ABC put on the air was video of a pair of hands rewrapping out-of-date fish and putting it back out for three more days. The hands are those of Lynn Litt. On deposition, she claimed that she thought she was doing what Johnston wanted her to do, and she admitted that she had never asked what he intended. In other words, the undercover ABC producer did not follow instructions, nonetheless the violation of company rules was blamed on Food Lion.

A Food Lion brief summarized other outtake revelations: "although Barnett suspected that some kielbasa in the deli case was moldy, she left it in the case overnight where it could have been sold to customers...she covered up that portion so that other Food Lion employees would not see it....although Barnett suspected that a piece of salami was unsafe to eat, she left it in a place where it could be sold to customers for six days rather then informing deli manager Brenda Sparks of her suspicions....although Barnett suspected that packages of chicken were out-of-date, she left the chicken in a place where it could be sold to customers for four days rather than informing Sparks of her suspicion..."

ABC did get some footage of isolated incidents of misconduct by Food Lion workers. One clerk is shown opening packages of outdated hamburger and tossing the contents into a grinder so it can be recycled with fresh meat. The clerk suggested that Food Lion would condone what he had just done.

But footage taken in the same time frame suggests otherwise. The manager, Johnston, is irate when he finds that the clerk has left unwrapped hamburger in a cooler. He stated, "I'll have to catch that [expletive deleted] for not closin' that [expletive deleted] up. I'll kick that [expletives deleted]."

There is a sequence in which one of the producers asks another clerk, a superior, about a tray of chicken on a counter, and whether it should be put back in the cooler. "No, throw it out," the boss says. The producer turns away and, in a disappointed tone of voice, exclaims, "Damn!"

ABC aired footage of worker Brian Veltri holding onto a sink and sliding his feet across the floor--evidence, narrator Sawyer said, that Food Lion floors are so greasy that employees have trouble walking on them. But as the outtake video showed, Veltri and a colleague, Peggy Camp, splashed soapy water on the floor while washing pots and trays at the end of a Sunday shift. Veltri, said by co-workers to be "an inveterate joker," clowned

around by sliding on the suds. There is no evidence of floors being greasy, or of employees having trouble with their footing, in any other videos.

Much of the segment was devoted to allegations about off-the-clock work, and during depositions Litt was asked whether she personally witnessed any such thing. She replied, "Not that I could tell, no."

The outtakes also contradicted ABC's claim about employees being forced to work off-the-clock. There was a long exchange with a supervisor named Pete Johnston. Litt asked, "Would you mind if I came in early, just to watch? I wouldn't clock in, I would just

watch." Johnston replied, "You're not supposed to do that." When Litt persisted, Johnston told her, "Aw, I know what you was thinking. See, what they'd do the first thing they'd do is say you're working off the clock." Litt said, "Right, right."

There is also an audio tape of Litt chatting with covert cameraman Bell. She states that she cannot prove that a man was working off-the-clock, saying, "Whatever it is, it's too clever for me to use or understand." Litt and the other cameraman, Hill, also discuss off-the-clock work. "Seriously, that's the way these people are," she said. "They fire people for this." Hill replies, "Throw that tape away."

Both Litt and Barnett are caught on their own film in repeated violations of Food Lion rules: Barnett touching food after touching money; Barnett not covering a cut in her hand before touching food; Barnett failing to wash her hands after taking out trash. ABC used this film to show how Food Lion workers flaunt health regulations. The list is a long one. There is also film of a supervisor chastising Litt for doing a bad job in cleaning a saw the previous night. A bit later she is shown exclaiming, " I don't know what the ____ I'm doing."

In a reprise on the controversy which ABC News aired on Feb. 11, Diane Sawyer heatedly denied that the undercover producers "staged" any incident. But there is outtake footage that, to Food Lion lawyers, suggested even grosser trickery than got onto the air. Lynne Litt and technician Ron Hill go into the store where Barnett is working undercover and buy some kielbasa, which they take back to the van and leave sitting on the dashboard for about 90 minutes on a sunny South Carolina afternoon. The next day, Litt returns to the store and asks Barnett for some kielbasa. On the third day, she returns it, claiming it is "moldy." Food Lion suspects ABC deliberately spoiled the kielbasa; for whatever reason, this footage was not used on the segment.

At one stage of the case, Food Lion lawyers questioned whether the ABC producers resorted to actual sabotage to get footage of uncleaned meat cutting equipment.

The episode began at 8:50 A. M. on May 6, when Litt clocked in for work. At 9:25 A. M., she clocked out and went to the ABC van in the parking lot, returning to work 10 minutes later. She claimed on deposition that she found that the tape in her hidden was camera was defective and she wanted to replace it.

Food Lion lawyers had already established that the technician made sure the camera was working before the women reported for work. Their suspicion was that Litt had done something which she did not want recorded on camera.

Later that day, Litt asked her supervisor if she could come in

the next morning, off-clock, and watch other persons work. He refused, citing rules against off-clock work. Meanwhile, the hot water heater for the meat area had stopped working. A plumber, Ed King, who came in during the evening found that "someone had tampered with the hot water heater by removing a jumper wire that could not have disappeared on its own." The plumber had to return the next morning with the part needed for the repair.

While the heat was inoperative, Litt made two trips into the meat department when she was not scheduled to be working, filming footage of a meat grinder which was left unwashed because of the lack of hot water. Her tapes during these visits had no sound.

In Food Lion's view, "Putting the water heater out of action was a sure way to cause sanitation problems in the store, and especially in the meat market. And Mr. King testified that in 20 years as a plumber, he had never seen a similar problem.

Judge N. Carlton Tilley, Jr., who heard this evidence presented during the trial, commented, "I have seen people tried on less evidence than that in criminal cases and convicted."

Anchor Sawyer claimed that meat-cutting equipment routinely went uncleaned, and that the producers "never saw" the blade or wheels being broken down for cleaning. But in fact cleaning this very equipment was one of the tasks assigned to the producers. And in one instance, a producer who was assigned to clean a meat room at the end of the shift left the store without doing so.

ABC paid much attention to some supposedly spoiled rice pudding returned by a customer. The video depicts Susan Barnett showing the pudding to employee Carol Jordan. "It kinds of smells, um, a little bit like sour cream," Barnett said. Jordan sniffs the carton and agrees,"Doesn't smell good." Actually, according to outtakes, when Jordan first smelled the pudding, she said she didn't note anything wrong with it. So Barnett tried again, and this time Jordan agreed with the producer. By this time, the pudding had been sitting on a "discard shelf," away from refrigeration, for some time. Barnett positioned it for a camera shot before engaging Jordan in conversation.

Did a Food Lion customer buy some outdated pudding? Perhaps, perhaps not. There is another long outtake showing a manager walking down a counter of deli food, pointing at items and telling Barnett, "Throw that away, throw that away, throw that away...." In all, more than 20 items are tossed. Barnett mutters, "You're kidding." Another worker, apparently noting her surprise, remarks that she has usuallly left work when time comes to "strike the hot bar." Barnett "clocks out" a few minutes later and goes to her car and exclaims, "Goddammit!"

In another episode, Barnett notices a tray of chicken on a counter and asks Peggy Camp if she should put it in the cooler. Camp says no, that it has been sitting out and must be discarded. Barnett turns away and says to herself, "Damn."

ABC aired another sequence showing Barnett asking coworkers about the rotation policy for salads and chicken marinade. Neither knew the answer,and those exchanges are the ones that went on the air. What ABC did not show was Barnett asking the same question of a supervisor, Julie Jeskey, a senior employee, who told her that other persons working in the deli were new employees still being trained, because the store had only recently opened. She continues that if Barnett has any questions, she should direct them to a supervisor. ABC chose not to air Jeskey's statements.

So what work did ABC News do beyond the flawed undercover missions? ABC did not submit any of the suspect food to labs for testing. ABC did not consult food inspection services in either North or South Carolina about Food Lion's sanitation record. In South Carolina, ABC would have found that Food Lion ranked second among the six major food chains--87.4 versus an average of 85.4, surprassed only by Winn Dixie, 88.9.

ABC did go to state authorities in Florida, where Food Lion has a strong presence. On Nov. 7, 1992, two days after the PrimeTime Live show, Ken Lufkin, the head of state food and meat inspection, talked with the Tallahassee Democrat: "Lufkin said he has been working with ABC reporters for the past three weeks, providing them with inspection reports and allowing them to accompany inspectors on unannounced visits to Food Lion stores." Food Lion came up clean. Since this finding contradicted PrimeTime Live's preconceived story, it went unmentioned on the air.

In North Carolina, Robert Gordon, who heads food inspection services, put every inspector at his command into Food Lion stores the day after the broadcast. No violations were found.

V: Truth by Trial

Was ABC News truly concerned about Food Lion being a menace to the public's health? Both before and after the trial, ABC insisted that it was exposing an "imminent threat" to public health, that Food Lion's misdeeds were so dastardly that the undercover work was justified. But several sets of fact suggest the opposite:

-- Litt, Barnett and their camera crews admitted on deposition that at the very time they were "exposing" dangerous conditions, they were buying Food Lion deli food for lunch and dinner. Some of the food they bought was later donated to local food banks.

They could not provide a single instance of any customer ever becoming ill from food bought at the stores.

--The story was first proposed to Litt on Nov. 20, 1991, by UFCW publicist Neel Lattimore. She did not make a story proposal until the following March 16. Barnett, working from different sources, submitted her story proposal around the same time. They went undercover in April, and the segment did not air until Nov. 5-- almost a year after the original tip, and six months after the undercover investigation ended. This time line makes hollow ABC's claim that it acted to protect "public health and safety."

Even after the undercover work, producer Susan Barnett would not claim that Food Lion was doing anything dangerous to the public. Here is an exchange from her depositon:

Q. At the time you went undercover at Food Lion had you concluded that anyone's life or safety was at stake as a result of Food Lion practices?

A. No, I had not come to that--to any conclusions prior to undercover.

Q. Did you reach such a conclusion while you were undercover?

A. No.

ABC's own admissions showed that profits, not public service, motivated the segment. ABC aired the segment during the "sweeps period," the week in which viewership determines advertising rates. ABC vice president Richard Wald testified that "one rating point of the evening news is worth millions to the bottom line." Economics is paramount in the news business, Wald said. Since World War II "the news was distributed to the public, but it was sold to an advertiser. And what the advertiser bought was not the quality of the news but the quality of the audience." Sam Donaldson, co-anchor of PrimeTime Live, conceded, "We all know what success means...it's ratings, not just a congratulatory note from Bill Moyers."

Important dollars-and-cents testimony came from Robert Lissit of the S. I Newhouse School of Public Communications at Syracuse University, a expert on TV content analysis. Under questioning by Michael J. Mueller of the Akin, Gump trial team, Professor Lissit testified that he found that PrimeTime Live aired 141 segments involving hidden cameras from August 1989, when the program began, through May 1996--80 original shows, 50 reruns and updates,and 11 miscellaneous. The highest concentration, 35 of the 80, came during the so-called "sweeps period" of September through November. October and November, he said, "are the two months generally believed to provide the greatest return, the highest earnings for a network." November is the most important month for ratings for local stations. He said, "The higher the rating the higher the [advertising]rate. The more they can charge for the commercials."

ABC lawyers offered some peculiar defenses to the false employment charges. The covert taping was not illegal, they claimed, because Food Lion never expressly told the producers that they could not engage in such conduct, one pleading said. They also asserted that the North Carolina law against fraudulent employment "does not apply to the newsgathering activities of the press"--in other words, the media are above the laws that apply to everyone else. There was also a claim that as "entry-level employees," the producers owed no fiduciary loyalty to Food Lion.

Judge Tilley slapped aside ABC's argument that the First Amendment was broad enough to shield its conduct: "To allow ABC to hide behind a qualified First Amendment privilege in order to camouflage tortious behavior on the part of its agents and employees is unacceptable. It is fundamental that the press is and should be governed by the same generally applicable laws that order the rest of society."

ABC lawyers finally resorted to the presumed credibility of high-priced anchor Diane Sawyer to bolster its defense of the undercover operation. There was this exchange:

Q. But you would not have been one of the people to authorize them misrepresenting themselves to Food Lion, would you?

A. I authorized their going in undercover based on the fact that I knew we were going to do a hidden camera story.

Q. Well, was it required that you authorize that?

A. Yes, in the sense that it was my piece.

Q. Is it your testimony here today that you--your authorization was required before they could go undercover into Food Lion?

A. If I had not assented in and approved of a hidden camera investigation on Food lion, since it was my piece, it would not have happened.

This came in court testimony on Jan. 10. Earlier, ABC gave in a court filing a somewhat different version of Sawyer's role:

Diane Sawyer was apprised of the decision to pursue the investigation of Food Lion, but she was not personally involved in reaching the decision that entry upon Food Lion's premises was necessary to prevent harm to the public, nor was she involved in the undercover investigation...

The Carolina jury made short shrift of ABC's claims. In December it awarded Food Lion $1,400 in actual damages, the wages the chain paid the undercover producers. And then on January 22, it ordered Capital Cities/ABC, Inc.,, and ABC, Inc., to pay punitive damages totaling $5.5 million. Richard Kaplan, executive producer of PrimeTime Live at the time the show aired, was ordered to pay $35,000 in punitive damages; and Ira Rosen, the senior producer, $10,750. [Media organizations traditionally pay damages assessed against employees in such actions.]

ABC's counteroffensive started soon after the verdict. ABC News President Roone Arledge issued a statement claiming that Food Lion succeeded in persuading the jury to "punish" the network "without ever challenging the truth of our broadcast." He told The New York Times the same day, "They could never contest the truth" of the broadcast. As did the challenged segment, Arledge's statements stretched the truth past the breaking point.

Arledge's subordinates echoed the same theme. Cokie Roberts said on Larry King Live on CNN on Jan. 23 that "the jury did not and no one alleges that the story was untrue." Sam Donaldson, on the same show, said, "In fact, Food Lion did not challenge the accuracy of our report."

In fact, Food Lion had denied the veracity of the report from the very day that it aired; nonetheless, much of the media repeated ABC's claim about the chain not challenging the segment's veracity. One syndicated Washington talk show hostess, Candy Stroud, insisted to an AIM staff member the day after the verdict that Food Lion had "admitted" soaking spoiled fish and ham in Clorox; she seemed surprised when challenged on her facts.

ABC then began depicting itself as a ferocious defender of press freedom. In an Op Ed Page piece in The New York Times on Feb. 1, Arledge wrote, "By going undercover and telling a vital story about Food Lion's practices, we were also following a great tradition of American journalism. Upton Sinclair got a job in a meatpacking plant and wrote 'The Jungle,' which led to the introduction of meat inspection laws."

Unfortunately, Arledge is as sloppy at the history of journalism as his network is at journalism itself. In fact, Sinclair did not "get a job" in a plant. As he wrote in "The Autobiography of Upton Sinclair," published in 1962, "I sat at night in the homes of the workers...and they told me their stories, and I made notes of everything. In the daytime I would wander about the yards,and my friends would risk their jobs to show me what I wanted to see...So long as I kept moving, no one would heed me."

Arledge argued on his network's World News Tonight on Jan. 22 that an "overriding public interest" justifies the use of underhanded reporting tactics. A rogue policeman well might make the same argument to defend hitting a criminal suspect with a truncheon, or the FBI resorting to an illegal wiretap in an espionage case. We doubt that Arledge, or anyone else in the media, would excuse such misconduct by anyone other than a reporter.

Other journalists went into a worry mode on weekend talk shows after the verdict. Ellen Hume of PBS commented on CNN's Reliable Sources: "Perhaps the bottom line in all of these things is that there is a chilled atmosphere.... both the business side and the legal side are putting pressure on journalists who might otherwise have gone out and done a lot more investigative work. They've got to be a little clearer about what they're doing. They've got to be a little tighter about their techniques. They've got to be more ethical, but I'm worried that the whole thing is going to be thrown out with the bath water. ...I'm worried that we will not have the kind of aggressive investigative reporting that for years has benefited the public with consumer reports, with government scandals being found. We've got to have journalists in there doing that."

The Reliable Sources panelists compared ABC's Food Lion caper to a sting operation conducted by law enforcement officers, but they missed the essential difference. A law enforcement sting gathers evidence to be used to prosecute individuals suspected of engaging in illegal activities. In court, the defendants are permitted to present the best defense their attorneys can muster. The ABC attack on Food Lion, like Mike Wallace's attack on Gen. William Westmoreland in a CBS documentary on Vietnam in the 1980s, assembled evidence to be presented to millions of television viewers to convince them that Food Lion was guilty as charged. ABC News was the investigator, the prosecutor and the judge. Its witnesses didn't have to face cross-examination, and Food Lion was not permitted to present its defense. The TV audience was the jury, and its verdict was predetermined by the way in which the program was edited.

Trial by media lacks the protections provided to the accused in investigations by law enforcement agencies and trials in court. Promoting the public interest is secondary to getting a story that will attract attention to the TV show or the publication and increase its audience. The method all too often is to seek facts - 24 -that will support a predetermined conclusion. It can do far more harm than good unless handled very responsibly.

A. M. Rosenthal, the former executive editor of The New York Times, now a columnist, surely no foe of the First Amendment, decried ABC's sanctimonious attitude [Dec. 27]. He wrote, "News offices are treasuries of information that might interest the public as much as the goings-on in a supermarket: stories in progress, the names of whistle-blowers who have risked their jobs...to tell stories that should be told, and national security details, like the identity of government agents, which news people have decided to withhold.

"If another newspaper, magazine or TV team sent its employees into our homes or offices undercover or planted cameras or mikes in them, we would leap into ectasies of rage."

PrimeTime Live insulted thousands of Food Lion employees by charging that they would knowingly sell rotten food to their neighbors and friends. Such despicable behavior conceivably is fathomable to network employees who knowingly sell rotten news. Food market employees, at Food Lion and elsewhere, have higher standards of personal conduct.

During 1991-93, when David Westin served as the top lawyer for ABC-TV, he frequently worried when he reviewed such news programs as PrimeTime Live and 20/20. Westin, now the ABC News president, told the Knight-Ridder newspapers' Marc Gunther in 1993, "I did not see the prettiest side of our news magazines, I would have to say."

Neither does an American viewing public which can no longer trust what it sees on ABC News. The organization that views itself as America's premier newsgathering operation has injured the credibility necessary to the profession of journalism, and all of us suffer as a consequence.

This report is based on (a) thousands of pages of depositions, exhibits, court filings and testimony in Food Lion, Inc. v. Capital Cities/ABC, Inc., et al, Civil Action #6:92CV00592, in the United States District Court for the Middle District of North Carolina; and (b) more than 40 hours of video outtakes filmed by undercover ABC cameramen and producers during its "investigation" of Food Lion.