By Mike Dorf
Free-speech claimants are often unsympathetic. At worst, they can be grossly offensive: Neo-Nazis claiming a right to march in a neighborhood of Holocaust survivors; Klansmen claiming a right to burn crosses; homophobic zealots claiming a right to picket military funerals. At best, free speech claimants may be annoying people who would interrupt harried pedestrians and travelers with unwanted information. Zechariah Chafee, a great champion of free speech, once described the Jehovah's Witnesses, whose free speech rights he repeatedly supported, as a "sect distinguished by great religious zeal and astonishing powers of annoyance."
To say that freedom of speech protects unpopular messages and messengers is not to say that it should protect all unpopular messages and messengers simply in virtue of their unpopularity; rather, it is to say that disagreement with, or offense at, the message is not a sufficient basis for regulation. Here I take no position on whether recent protect-the-speech-we-hate decisions like United States v. Stevens or Snyder v. Phelps are correct. Instead, I want to apply to a recent controversy the core principle that mere disgust with the messenger is not by itself a reason to ban the message.
That brings me to James O'Keefe, the provocateur who released clips of NPR's Ron Schiller knocking the tea party while negotiating a donation from the fake Muslims with whom he was meeting. It turns out that O'Keefe manufactured a good deal of Schiller's most questionable statements through highly misleading editing that falls well below the standards for professional journalism. This leads me to agree with Ira Glass that NPR over-reacted to O'Keefe's sting, but I'll put that aside. Here I want to say a word about the legality of O'Keefe's self-appointed sting operation.
In Food Lion Inc. v. Capital Cities/ABC Inc., the U.S. Court of Appeals for the Fourth Circuit rejected a First Amendment defense by ABC reporters who took jobs working at the Food Lion grocery chain for the purpose of exposing its unsanitary practices. Food Lion was able to sue the journalists for breach of the employees' duty of loyalty and for trespass, although it only collected $2 in damages, while a trial award for fraud (based on alleged misrepresentations in the job applications) was reversed. That reversal was based on a failure of proof under state law, however, so the bottom line from the Food Lion case is that where state law entitles a business to secrecy (or loyalty, which amounts to the same thing in many of these cases), the First Amendment does not provide a defense to undercover journalists.
The Supreme Court did not review the Fourth Circuit ruling in Food Lion, but the appeals court's ruling was arguably correct as a matter of Supreme Court doctrine. The court considered itself bound by two Supreme Court precedents. In Branzburg v. Hayes the Supreme Court rejected the contention that the First Amendment confers on reporters a right to provide their sources with enforceable promises of confidentiality. Generalizing from there, the Court said in Cohen v. Cowles Media Co., that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." The Fourth Circuit noted in Food Lion that the state tort law under which the defendants were sued applied equally to everyone, and so thought that the case fell within the general rule of Branzburg and Cohen.
Much of the impetus for the Cohen principle comes from the inevitable problem that would arise if the Court were to hold that the First Amendment confers on the institutional press some rights to be exempt from laws that apply to everyone else: the Court would then need to establish workable criteria for deciding who counts as a member of the institutional press. Especially in an era when any clown with a computer can publish his or her musings on a blog or a Facebook page and claim to be a journalist, there is reason to worry that a principle of exceptions for the official media would either swallow the rules or have to draw distinctions among speakers that are themselves problematic under the First Amendment.
There is more reason to worry about the definitional issues in the context of a case like Branzburg than in the context of a case like Food Lion. If all it takes to avoid having to give testimony about what someone told you is to say that you promised her confidentiality, then the courts could be deprived of a good deal of valuable testimony. To be clear, I'm not fully persuaded that Branzburg was rightly decided, but at least there is something to the fear that a constitutional shield would be abused. By contrast, recognizing a First Amendment immunity for the revelation of truthful information absent some good reason for secrecy strikes me as less costly. Thus I would be willing to say that anybody who wants to go undercover for the purpose of exposing wrongdoing ought to be able to, subject only to laws that protect legitimately private information.
What counts as legitimately private? I won't try to spell it all out here, but a few examples should illustrate the basic idea. Certainly state law can forbid invasions of the privacy of natural persons. Thus, a dinner guest who excuses herself from the table ostensibly to use the washroom but in fact photographs your underwear drawer and posts the photos on YouTube can be made liable in tort without offending the First Amendment. Likewise, some protections for commercial enterprises such as trade secrets, customer lists, and personnel files can and should be protected. But I would want courts to demand that an enterprise claiming protection against the actions of a whistleblowing infiltrator be able to point to some valid reason why the enterprise is entitled to secrecy in order to recover damages or otherwise subject the infiltrator to liability. The mere fact that the revelation of truthful information will harm the enterprise should not be enough. (Nor should be standard-form contracts purporting to waive the protection of the First Amendment.)
My proposed First Amendment protection for the likes of the undercover journalists in Food Lion and for O'Keefe would not extend beyond news-gathering and dissemination. False statements (including those manufactured by cutting and pasting video clips to make it appear that an answer given to one question was really an answer to a wholly different question) could still result in liability for defamation. But insofar as Food Lion and the Supreme Court precedents on which it rests provide no protection for undercover journalists, I believe they dis-serve the public and First Amendment values.