Vindication for "Dateline NBC"
By Kathryn J. Olmstead
Kathryn J. Olmstead teaches journalism at the University of Maine in Orono and is editor and publisher of Echoes: Rediscovering Community, a quarterly journal of rural culture.
W HEN PETER KENNEDY SAT down with two friends and a bowl of popcorn to watch "Dateline NBC" on April 19, 1995, he expected to see himself portrayed as a champion for the nation's truck drivers, exposing outdated regulations and demonstrating the need for reform. A "Dateline" crew had accompanied him on a trip from Salinas, California, to Chelsea, Massachusetts, in the fall of 1994, and he had been interviewed and videotaped for the broadcast.
Instead Kennedy saw himself in the leading role in a convincing exposé on tired truckers who can become deadly hazards on the highways, exceeding the number of hours they should drive without sleep, using drugs to stay awake, and falsifying the hours recorded in their log books to hide their violations. The two-part program seemed to vindicate complaints of Parents Against Tired Truckers, an advocacy group formed by the parents of one of four teenagers killed in Lewiston, Maine, in October 1993 when an 18-wheeler plowed into their stalled car because the truck driver had dozed at the wheel.
Outraged by the way he was depicted, Kennedy, along with his employer, Ray Veilleux, owner of Classic Carriers in Waterville, Maine, filed suit against NBC. "Why would someone who had spent all his adult life in an industry he loved take a $100,000 truck and a $50,000 trailer and commit professional suicide in front of 27 million people and ruin himself?" asks Veilleux. His answer, and one of several claims in the suit, is that he and Kennedy were misled.
A Bangor, Maine, jury agreed on July 8, 1998. The nine jurors affirmed that NBC and the staff of the newsmagazine not only misrepresented their plans for the program, but also caused defamation, emotional distress, portrayal in a false light and invasion of privacy. The 19-count verdict awarded the truckers $525,000.
But in March, the U.S. Court of Appeals in Boston reversed most of the jury's decision, stating that the allegedly defamatory statements were reasonably based on Kennedy's admissions and that the plaintiffs could not prove them false. The court called "Dateline's" promise to produce a "positive" story "too vague and, in this context, constitutionally suspect" to support a claim of misrepresentation.
The case draws distinctions between ethical and legal issues and affirms First Amendment protection for issues of public concern. But it also raises questions: What should the ethical--as opposed to legal--limits be in obtaining information from a trusting source? What gives when the journalist's mandate to "seek and report the truth" collides with the obligation to "minimize harm"--two tenets of the Society of Professional Journalists' Code of Ethics?
The truckers say they agreed to participate because "Dateline" producers said they wanted to show the "positive side" of trucking and would not include PATT's positions in the program. The truckers also say NBC took quotes out of context and betrayed a confidence in broadcasting that Kennedy had tested positive for marijuana and amphetamines in a drug test. Veilleux testified he was hospitalized with chest pains after viewing the first segment and watched the second from his hospital bed. Classic Carriers drivers received death threats; the company lost business; and Kennedy was ridiculed and threatened when fellow truckers recognized him at truck stops, according to testimony.
Attorney Bernard Kubetz of Bangor, who represented NBC in the case, countered that everything in the program was true and that the producers promised only to create an accurate documentary. "At issue in this case is what was in the program," he says. Kennedy told NBC senior correspondent Fred Francis on camera that truckers call their log books "lie books" and that they could not stay in business if they operated within the law. He acknowledged falsifying his log and using marijuana.
Kubetz's argument that the First Amendment protects both "truthful speech" and the editing function of the press won out on appeal. "The appeals court stuck to strict interpretation of the law and careful evaluation of trial evidence," he says.
In its decision, the three-judge appeals panel reversed Kennedy's invasion of privacy claim because his drug use was "closely related to the theme of highway safety, an issue of public concern featured on the Dateline program." The truckers also lost an appeal for punitive damages, because they were unable to show that NBC was motivated by ill will. The court concluded that "Dateline's" motives were no more than "the zealous pursuit of an emotionally compelling story." The appeals court left open the possibility that Veilleux could recover damages for lost business due to PATT's inclusion in the program. The court also left open Kelly Veilleux's claim for damages for loss of companionship with her husband. "What good is a justice system when three judges can reverse the decision of a jury?" Veilleux asked after he heard the news. "I have a name for it: social injustice."
His attorney, William Robitzek of Lewiston, Maine, says the case pits the right to a jury trial against the right to a free press. "The jury listened to live witnesses, viewed videotapes and found evidence to support every single one of the truckers' claims," Robitzek says. "The appeals court looked only at the printed record and appeals briefs for evidence to support what NBC said."
Robitzek is contemplating an appeal to the U.S. Supreme Court.
Ken Paulson, executive director of the Freedom Forum First Amendment Center, is familiar with jury decisions based more on ethical than legal issues. "The American public has a tendency to regulate the media when it gets into the jury box," he says. "Juries are eager to right wrongs. They don't appreciate the First Amendment implications."
Calling the recent ruling "a significant victory for the free press," he says the case is also a reminder that juries will punish the media. "Fifty-three percent of the American public believes there is too much freedom of the press," he says, citing a recent Freedom Forum survey. "The challenge for the profession is to do a better job of explaining why we do what we do."
Bob Steele, director of the ethics program at the Poynter Institute in St. Petersburg, Florida, says journalists "can't prevent all harm." Steele wrote SPJ's ethical guidelines and intentionally selected the word "minimize" in defining reporters' obligations to people they affect. "In order to spotlight significant societal concerns, wrongdoing and system failure, journalists must probe into the lives and actions of those who are part of the story," he says. At the same time, they must be "highly professional, very respectful and appropriately compassionate."
He says it's not unusual for a story subject to bring a certain amount of naiveté to the process of journalism. The source may see the story through his or her own lens in a way that is very different from the journalist's. Steele says journalists should be careful not to exploit vulnerable individuals.
"There are times when the law allows something where ethics prompt a different course of action, and vice versa," he says. "How we conduct ourselves when gathering information, interviewing people, observing situations and reporting stories is as important from an ethical standpoint as what we put on the air or in the paper."