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"De Tocqueville and Jefferson warned us against the tyranny of the majority," says Paul McMasters, who is First Amendment ombudsman for the Freedom Forum, a nonprofit devoted to free speech, "but what we see emerging is the tyranny of the aggrieved. People are feeling more aggrieved toward the media, and everybody from the left, the right, and the middle is asserting his own rights" over the rights of the media.
As evidence of this trend, the Supreme Court took on about a dozen First Amendment cases this session, which McMasters believes is more than in any year in recent history. Furthermore, a Freedom Forum poll conducted this fall found that 42 percent of the U.S. public believes the press has too much freedom, not too little. Then there's the tendency to lump old-fashioned journalism in with entertainment and new media, including TV, movies, and the Internet. No matter how you cut it, he says, the prevailing mood is "sue the messenger."
Given that mood, the decision known as Food Lion may be the media's most important victory this year. That case arose when two ABC reporters lied to get jobs at a supermarket chain, then made secret videotapes while on the job. The tapes, which aired in 1992, allegedly showed workers doing things like grinding old meat with fresh meat and repackaging fish after its expiration date. In 1997, a jury awarded a $5.5 million verdict to Food Lion, but in October 1999, the Fourth Circuit Court of Appeals reduced the award to $2.
Food Lion was typical of a phenomenon called the "trash tort." The last resort of a scoundrel, the trash tort is a strategy adopted by corporations when they don't have the ammunition to win a libel suit. Instead, they hit their media critics with civil actions such as fraud or invasion of privacy. General Motors used the technique to drown out NBC's allegations about gas tanks, and Chiquita used it to discredit a 1998 exposé in the Cincinnati Enquirer.
Floyd Abrams, the lawyer for several media companies that supported ABC in the Food Lion case, has said that ABC's victory will make it harder for other plaintiffs to use non-libel suits to achieve an "end-run around the First Amendment." But the decision in Food Lion may be undercut by Sanders, a June 1999 ruling in California which awarded $1.2 million to a telephone psychic whose privacy was violated when an ABC reporter posed as a co-worker and secretly videotaped him at work. (The award has since been cut in half.)
If critics are split about the implications of Food Lion, everyone agrees the media lost out in Hit Man and Jenny Jones. These cases were decided in a one-two punch last May, reinforcing the theory that the media can be held liable for inspiring acts of violence committed by a third party.
The first case started innocently enough: in 1995, Scott Amedure and Jonathan Schmitz arrived independently at the studio of The Jenny Jones Show to tape a segment about secret crushes. While the self-proclaimed hetero Schmitz waited offstage, Amedure described a sexual fantasy about Schmitz that involved whipped cream and strawberries. The incident so infuriated Schmitz that a few days later, he bought a shotgun and killed his admirer. Amedure's family sued the show and Warner Bros., and in May 1999, a jury awarded the family $25 million in damages. (Warner Bros. is appealing the verdict.)
McMasters sees Jenny Jones as a classic example of blaming the messenger. "Here we are holding an entity with deep pockets responsible for a very vicious hate crime, based on the taping of a TV show that never aired," he says. "It betrays the mood of juries across this country who are expressing an antipathy" toward the media.
The Hit Man case took that antipathy to the extreme. The messenger in that case is Paladin Press, an alternative publishing house in Boulder, Colorado. In 1983, Paladin added a book to its catalog called Hit Man: A Technical Manual for Independent Contractors. This book eventually found its way into the hands of James Perry, who was allegedly hired in 1993 to knock off a Maryland woman, her quadriplegic son, and his nurse. Perry was convicted (and recently acquitted) of killing them in cold blood.
Before you could say "trash tort," the victims' families sued Paladin, claiming that the publisher had aided and abetted criminal conduct, because Hit Man had given Perry tips on how to carry out the perfect crime. Paladin asserted its First Amendment rights, attracting a crowd of supporters from the ACLU to The Washington Post. But last May, just as the trial was set to begin, Paladin's insurance company backed out, forcing the publisher to settle. The settlement cost Paladin $5 million and has already set a precedent. According to George, the Loompanics publishing house is now pulling potentially incendiary books on the theory that they are "lawsuits waiting to happen."