The Lying Game   

Debate over lying to get a story has intensified in the wake of the Food Lion case. Defenders say deception sometimes is critical in reporting important stories. But a mounting chorus of criticism decries the practice as overdone, bad for journalism's credibility--and just plain wrong.

FOR A SERIES ON DEHUMANIZING and dangerous work, Wall Street Journal reporter Tony Horwitz applied for a job at a chicken-processing plant a few years ago. In reporting the story, Horwitz knew he had to follow the Journal's tough policy on deception: "I was told not to tell any lies. If questioned, I was to answer honestly," he says. He filled out the application with trepidation, fearing "they were going to ask questions and I was going to have to head for the door." He listed Columbia University as his education and Dow Jones & Co., the publisher of the Journal, as his current employer. He was hired immediately.

The tale Horwitz told exposed food-handling violations, poor hygiene and the Dickensian working conditions that he endured. The story helped earn him a 1995 Pulitzer Prize and the respect of one of his poultry bosses. When Horwitz tried to return a week's worth of $5.10-an-hour earnings, the company refused to accept it. "Based on what you wrote in the piece," a company official told him, "you earned it." Horwitz donated the money to charity.

Compare the outcome of the Journal's story to the recent court decision against ABC's "PrimeTime Live" for the newsgathering techniques used to expose unsanitary food handling and labor law violations at the Food Lion supermarket chain (see "The Lion's Share," March). Producers lied about their previous work experience, gave phony references and used work time to gather hidden-camera film footage they later aired. In the lawsuit Food Lion brought against ABC News, the judge ordered the jury to assume the broadcast was true. Even so, the jury returned a $5.5 million verdict against ABC, which the network plans to appeal. "You did not have guidelines before," the jury foreman admonished journalists. "You now have them. Let's find a way to work within those guidelines."

The jury's decision launched a raging debate over the use of deception and misrepresentation in newsgathering, an argument that goes to the heart of what it means to be a journalist. The scoop has always mattered most, and journalists have long been rewarded for aggressive, clever approaches to getting it. In pursuing the news, though, where is the boundary between dishonest and legitimate journalism?

A proliferation of junk journalism in recent years has eroded public trust in the media, now at a historic low. Rebuilding confidence means avoiding deceit except in the most extreme cases, say some prominent print journalists. But many in TV argue that deceit in pursuit of the truth is a time-honored tradition. While journalists disagreed, a jury in the Food Lion case handed down one of the first legal restrictions on the use of misrepresentation and deception.

Because nearly all journalists agree lying weakens credibility, most executives at mainstream news organizations say they allow reporters to use deceit only rarely. The Society of Professional Journalists' ethics handbook says deception should be used only when all other means have been exhausted; the story illuminates an extremely serious social problem or prevents profound harm to individuals; when the journalists reveal their deception to the public; and when the harm prevented by the information outweighs the damage caused by the deception.

That's the theory. In reality, the rules have been widely interpreted, especially in television, usually due to competitive pressures. Says one attorney, "Libel law never asked journalists to explain how they got the truth as long as they got it."

Reporting on the Persian Gulf War, for example, the Journal's Horwitz donned a U.S. military uniform and rode around in a Jeep pretending to be a serviceman so he could provide one of the first uncensored accounts of the fighting. In other instances, though, the stories have been less extraordinary; journalists have misrepresented themselves to land jobs as telephone psychics to expose fortune-tellers and have gone undercover in bars to inform viewers of great pick up lines.

During a February "PrimeTime Live" post mortem on the Food Lion decision, ABC aired clip after clip of journalists lying to get stories: posing as welfare applicants and as mentally ill, landing jobs in meat-packing plants, setting up phony medical clinics. And not only TV journalists do it, "PrimeTime Live" anchor Sam Donaldson told viewers. "Print reporters have been working undercover to expose wrongdoing in this country for more than a century, winning prestigious awards like the Pulitzer Prize for doing so."

Not exactly. The best-known journalistic reformers, the muckrakers practicing in the first few decades of the century, "were all above board, they all identified themselves as reporters," says Robert Miraldi, chair of the department of communications and media at the State University of New York (SUNY) and author of the book "Muckraking and Objectivity."

Only Upton Sinclair went undercover for what became a novel, "The Jungle," which exposed the horrors of the meat-packing industry. (Nellie Bly, known for pretending to be insane in order to expose squalid asylum conditions in New York, predated the more famous muckraking journalists like Ida Tarbell and Lincoln Steffens.)

In the last several decades, Pulitzer judges have discouraged undercover reporting by refusing to award prizes to reporters who engage in deception. In the late 1970s, the Pulitzer board did not honor a high-profile Chicago Sun-Times story on the Mirage Bar, a sting operation reporters set up to catch city officials taking bribes.

Many newspapers across the country, the Washington Post among them, forbid reporters from misrepresenting themselves. "I don't think reporters should misrepresent themselves. Period," says Ben Bradlee, the Post's former executive editor and now a vice president of the Washington Post Co. In a recent column, Seattle Times Executive Editor Michael Fancher wrote, "Philosophically, deception is a bad fit for journalists. Our role is to find the truth, not obscure it."

In deciding ethical questions, journalists often rely on the philosophy of utilitarianism: Actions on behalf of the public are right or good in proportion to their usefulness, especially when they bring about the greatest happiness of the greatest number. But who decides? And how?

The law governing the use of deception and misrepresentation in newsgathering "is unsettled," says media lawyer Rex Heinke. "Should journalists have special privileges, and if so, what are they? Society has been trying to figure out what's proper and what's improper conduct. We tend to sort that out through the courts, juries, the legislature and public debate."

Because the law is unsettled, journalists look to the public to help draw boundaries between legitimate and dishonest journalism. In the Food Lion case, for instance, the jury wanted to send a message to journalists: ABC had crossed the line, and not simply because it used hidden cameras. ABC "had gone too far" to get the hidden-camera footage, said jury foreman Gregory Mack. "You didn't have boundaries when you started this investigation.... You kept pushing on the edges and pushing on the edges.... It was too extensive and fraudulent.... The hidden cameras were not the issue."

The public has yet to judge harshly certain sins of journalistic omission, such as restaurant reviewers who dine anonymously or reporters who act as consumers to uncover unscrupulous auto mechanics. The public also tends to forgive misrepresentation when journalists use it to save lives, like reporters who get jobs in day care centers or homes for the elderly or mental hospitals to uncover life-threatening abuse.

But what about healthy reporters who pretend to be patients suffering from chemical sensitivity for an undercover exposŽ of what ABC News' John Stossel has deemed "junk science?" (See Bylines, November 1996.) It aired in January, and New York Times television critic Walter Goodman commented, "Maybe Mr. Stossel is planning to kick around his own techniques in a future exposŽ of junk journalism."

Countless other undercover exposŽs of marginal import have been aired and published, but no one seems to know exactly how many, since no studies have tracked them, according to communications academics. In the last decade, though, undercover reporting has become a staple on television. Local news teams try to outdo one another during sweeps weeks, and the number of national newsmagazines has grown from "60 Minutes" and "20/20" in 1989 to eight. The newsmagazines often must compete with entertainment shows, which encourages sensationalism as opposed to balance and nuance (see "Money Changes Everything," April 1993).

"The competition is so severe and the culture so demanding, news is obliged to do unnewsworthy things to survive," says Marvin Kalb, a veteran broadcaster who is now director of Harvard University's Joan Shorenstein Center on the Press, Politics and Public Policy. "Which is why a show like 'PrimeTime Live' does well in the ratings. But it has to engage in [deceptive] practices to achieve those ratings." Lying, he says, "has become the rule when it should have been the exception.... The use of deception is so widespread and sophisticated it demeans journalism and damages badly the journalist and the public."

Study after study shows the American public holding the news media in lower and lower esteem. Experts and polls attribute the decline to an array of factors, including a mistrust of the huge corporations that own much of the U.S. media and a proliferation of print and broadcast tabloid journalism, where using deception and misrepresentation are common tools. Too many investigations expose social aberrations, giving the public the feeling that media conglomerates have used "a bazooka to kill a fly," as one critic put it, training their guns on two-bit sleazebag criminals and welfare cheats who would never sue for damages. But that's entertainment.

"If you're trying to make your mark in the TV newsmagazine business and you want to attract an audience, you want to do things that look dramatic on TV," explains Mike Wallace, dean of CBS News' "60 Minutes." As the original TV newsmagazine, "60 Minutes" has aired its share of stories using deception, from using a phony patient in a Rolls Royce to expose a bogus cancer clinic to opening a fake office to reveal fraudulent Medicaid practices.

Nowadays, though, "60 Minutes" rarely engages in deceptive newsgathering, Wallace says, a position that has evolved over the years. "We were afraid of becoming a caricature of ourselves," he says. "There were so many local stations and prime time shows aping what they believed we were doing. We said, 'We don't have to do that anymore.' We shouldn't be. [Deception] is perfectly legitimate if you're after drama and not illumination."

And, he adds, "we don't do it because, by and large, it is not necessary. If you really want to find out what's going on, there are ways to find out without lying."

Most journalists agree, according to a study in a recently released book, "The American Journalist in the 1990s," by David H. Weaver and G. Cleveland Wilhoit of Indiana University. Only 22 percent of the journalists surveyed said they believe "claiming to be someone else" may be justified to get a story, roughly the same percentage as in the early 1980s.

Though journalists have "an absolute First Amendment right" to pose as someone else in pursuit of the news, said New York Times reporter David Rosenbaum on a recent National Public Radio broadcast, it's "almost always bad journalism. We reporters don't want spies or policemen or people like that to pose as reporters. And I think we have a very hard time making the argument that that's wrong, and yet accept the idea that reporters can pose as somebody else.... The credibility of reporters, generally, is just simply too important to risk it by trying to expose some tainted chicken."

Critics of deceptive newsgathering tend to congregate on the print side; they cite anecdotal evidence that points to an increase in gratuitous undercover reports, largely due, they say, to lazy reporters and cheap bosses who have neither the time nor the patience for old-fashioned reporting, tedious legwork and diligence. Donovan Webster has covered computer chip and endangered species smuggling for the New York Times Magazine and Southeast Asian pirates for Details magazine. "I have never, ever misrepresented myself," he says. "I have always identified myself as a reporter."

Journalists who lie or deceive, he adds, "usually don't want to spend the time on the story that it would take to do it right. Their editors don't want to spend the months and months it would take. Time makes editors nervous."

But television needs pictures. And pictures drive reporters undercover for dramatic, indisputable evidence of wrongdoing. "Often the results are wonderful," says SUNY press historian Miraldi. "And I don't mean ratings. I mean the changes that result socially."

Miraldi is troubled by the Food Lion decision. "Everyone is talking about the newsgathering techniques and not about what [ABC] found," he says. "It turns the whole thing on its head. It puts the focus on attacking the messenger instead of concentrating on the message."

Jacquee Petchel, executive producer at WFOR-TV, a CBS owned and operated station in Miami, and chair of the Investigative Reporters & Editors' journalism awards committee, has had numerous conversations with colleagues about the ethics of using deceit to pursue the truth. "I truly believe that one of the redeeming qualities of television--and believe me, we're criticized all too often for having no redeeming qualities--is that we can take a camera some-place and bring a story to life," she says. "In the case of important public issues, like safety, or child abuse, or the care and treatment of the elderly or the developmentally disabled, where there is reason to do undercover work that gives our viewers a look inside a facility or place that merits scrutiny, then it's our job to do it. It's just that we have a camera and print people do not."

Other TV journalists defend misrepresentation as one more journalistic tool to right serious social injustice. "Inside Edition," for example, won George Polk, National Headliner and Sigma Delta Chi awards this year for an undercover exposŽ of door-to-door insurance sales, and last year received Headliner and Sigma Delta Chi awards for reporting on Medicare kickbacks. Winning such prestigious awards "shows us that top journalism organizations are recognizing undercover reporting," says Robert Read, senior producer for the investigative unit of "Inside Edition" and a former producer with ABC's "20/20."

Both award-winning stories used misrepresentation, Read says, though he was uncomfortable providing details about how far an "Inside Edition" researcher went to land a job with the insurance company he later exposed. Generally, Read says, "we always try to minimize misrepresentation" and to "back up all our undercover reporting by traditional reporting methods," like extensive interviews with sources and whistleblowers and gathering public documents. The program also tells viewers when misrepresentation, deception or hidden cameras have been used. When done correctly, he says, going undercover requires more work and money since, in addition to traditional reporting, journalists have to confirm the wrongdoing on tape.

For the insurance report, "Inside Edition" produced a piece that changed the way Arkansas regulates insurance sales, Read says. The state's insurance commissioner "even told us [change] couldn't have happened without actual documentation," he says. "What better way to document in the '90s but to see it actually occurring?"

Pictures often have a more powerful impact than words. "When [the public] sees a terrible injustice, they may be more compelled to do something about it," he says, as opposed to simply reading about injustice or the government's inability to regulate illegal practices.

Ira Rosen, the "PrimeTime Live" senior producer for the Food Lion story, says he has little patience for "all this sanctimoniousness about lying versus not lying." In television, he says, "pictures provide a level of truth as much as the spoken word. You can't separate the two. People need to see."

Rosen sees little difference between what the Wall Street Journal's Horwitz did to land a job in the poultry-processing plant and what ABC News did at Food Lion. Horwitz "told a little less of a lie," Rosen says. "If you make the effort to try to tell the truth, that makes a difference. That's what we've learned from the case, that the extent of the lie is important."

In a New York Times op-ed piece, ABC News Chairman Roone Arledge defended the network's use of deception in the Food Lion case, saying the network was "following a great tradition of American journalism." He wrote that "PrimeTime Live" reporters have exposed abuses in day care centers and hospitals, uncovered Medicare and Medicaid fraud and dramatized the problem of violence in schools. "Not one of the institutions we investigated," he wrote, "would have volunteered to tell all if a reporter had showed up with a camera."

Lawyers who specialize in civil litigation insist the multimillion-dollar Food Lion decision will greatly diminish on appeal, especially since the compensatory damages of roughly $1,400--the company's cost for hiring and training the two ABC reporters--are so small compared with the punitive award.

Since few people have the resources and fortitude to pursue legal action without a sure payback, it is unlikely legal restrictions on deception will follow in great numbers. "The practical reality is that most [people] don't want to pursue litigation because it results in a raft of adverse publicity that will repeat and repeat the adverse story," says media lawyer Heinke.

Journalists are then left holding a moral compass, charged with finding their way through the ethical thicket of the First Amendment's liberties. Back in 1981, a "60 Minutes" broadcast featured a panel of journalism luminaries discussing earnestly the very same questions of misrepresentation and deception in newsgathering now being argued, a discussion begun in the 1970s, which has included "a good deal of just this kind of soul-searching and self-scrutiny in newsrooms all over America," Mike Wallace told the audience. Little seems to have changed.

Deception and misrepresentation, like sloppy reporting and misspelling a source's name, sandbag a good story and divert attention from the truth, allowing lawyers and agenda-driven critics to shift the focus from shocking revelations to journalism's bad judgment. "The one question I had for the ABC people is not an ethical one but a practical one," says the Wall Street Journal's Horwitz. "You know the subject you're writing about will review the story with a fine- tooth comb and try to attack you. If you leave yourself vulnerable to questions, if you've lied on the job application, from a practical point of view, it's a dicey thing to do."

At Harvard, Marvin Kalb says his students often disagree with his view that lying to get the truth is almost always unacceptable. But he is undeterred. Dismissing the argument that people in the TV age are more likely to fight social injustice when they see it firsthand rather than read about someone saying it has occurred, the longtime television journalist responds, "The point is this: There are ethical standards that are supposed to exist in society. There are limits. Democracy is hard work. It requires constant effort.

"And," he adds, "it often doesn't yield its best work when you take a shortcut."