Wednesday, July 29, 2015

Is It Ethical To Go Undercover To Expose Evil By Participating in Evil?

by Michael Dorf

My Verdict column for this week asks whether the makers and disseminators of the videos showing Planned Parenthood officials seeming to haggle over prices the organization charges for fetal body parts could be liable for defamation for misleading editing. Whereas the raw footage shows clearly that the officials are discussing partial reimbursement for expenses associated with collection, storage, and transport of fetal remains (which is legal), the editing and captioning creates the impression of for-profit sale (which is a crime). I explain in the column that defamation liability is a possibility although I caution about the dangers of censorship that arise when journalists are held to answer in damages for editing out context, given that editing is essential to journalism. In this post I want to raise a question about the ethics of undercover cause journalism.

Putting aside deliberately misleading editing, I have considerable sympathy for the tactics of citizen journalists who aim to capture on film what they regard as immoral conduct. Thus, in prior posts (e.g., here and here) I have raised objections to "ag-gag" laws that make it illegal to enter slaughterhouses and other sites of animal exploitation for purposes of documenting what happens there and to the Fourth Circuit's Food Lion decision insofar as it permitted state law liability for trespass and breach of the duty of loyalty for defendants who obtained employment at Food Lion for the purpose of exposing its unsafe food handling practices. Although I do not share the pro-life position of the citizen journalists who targeted Planned Parenthood, I understand that they face challenges similar to those that face other citizen journalists motivated by the desire to expose what they regard as evil. (Three chapters of the book Professor Colb and I have written, Beating Hearts: Abortion and Animal Rights--forthcoming in 2016 from Columbia University Press--address strategic and tactical similarities between the animal rights movement and the pro-life movement.)

The Planned Parenthood videos were obtained by pro-life activists pretending to be potential purchasers of fetal body parts, conduct which, apart from the lying, does not appear to violate any moral principles the activists affirm. But other sorts of footage may require undercover cause journalists to participate in the very evil they hope to end in order to capture it on video. A pro-life nurse who secretly records a late-term abortion or an animal-rights activist who obtains a job in a slaughterhouse commits the very act her going undercover aims to subvert. Is that problematic?

Before answering that question dirctly, it may be useful to compare it with the question whether undercover police officers are justified in breaking the law in order to catch criminals. Although tv and film dramas often suggest that undercover police only ever feign criminality (e.g., they don't inhale), the truth is quite different. In various jurisdictions and at various times, undercover police have committed acts that would clearly be criminal--sometimes seriously so--but for their status as police officers. As UC Davis law professor Elizabeth Joh argued in a 2009 Stanford Law Review article, this practice--what she calls authorized criminality--is highly problematic and largely unregulated.

Any justification for the police to engage in authorized criminality would have to be consequentialist: Even if police participation in crime causes harm, the argument goes, it is calculated to reduce the total amount of harm caused by crime. Undercover police operations catch criminals and may deter crime, because would-be criminals who fear that their partners in crime may be undercover police will be less willing to engage in crime. At least that's the theory.

This approach could apply to private citizen journalists aiming to uncover evil if the citizen journalists' own ethics are consequentialist. For example, a Peter Singer-inspired utilitarian opponent of factory farming might have no moral objection to taking a job at a slaughterhouse if she thinks that the net result of her activity exposing what happens at the slaughterhouse will be to reduce animal suffering.

However, most activists in moral causes are not utilitarians or other sorts of consequentialists. People who favor animal rights generally think that it is wrong to participate in most activities that cause animals to suffer or die. Likewise, people who are strongly pro-life think that abortion is wrong and that it is wrong for them to participate in abortion, even quite remotely. Think about the objections of the employers in the Hobby Lobby case. They did not want to participate in providing health insurance that covered forms of contraception that they regarded as methods of abortion. If it could be shown that by providing such health insurance, the net abortion rate would decline--perhaps because other non-abortifiacient methods of contraception would lead to fewer unwanted pregnancies--presumably the employers would still object. So it would seem to follow a fortiori that someone who thinks abortion is wrong on deontological grounds should not participate directly in an abortion, even if in doing so she obtains footage of the abortion that can be used to sway public opinion and thus reduce the total number of abortions.

In a certain sense, the objection I'm considering here is a familiar problem for people who believe in rights: A consequentialism of rights--i.e., acting so as to minimize rights violations--is problematic. And yet, people who care about rights understandably want to act in a way that minimizes rights violations. (A useful, if somewhat dense, treatment of the broader problem can be found here.) My view, for what it is worth, is that the objection to a consequentialism of rights melts away where one acts to minimize violations of rights by others but that one cannot simply trade off one's own rights violations in order to reduce net rights violations by oneself plus others. If it is simply wrong to kill, then it is wrong to kill A even if (somehow) killing A leads to the sparing of B and C. This is simply what it means to reject consequentialism.

There may be ways around this sort of objection. Perhaps the pro-life nurse who takes a job assisting in abortions finds ways not to provide any real assistance while she surreptitiously records the abortions. Or the animal rights activist takes a job in the slaughterhouse that does not directly involve killing. But I tend to think that this is a dodge. If the employer is willing to hire the undercover activist to do a job, presumably that's because the job is part of the process that the activist regards as evil.

Bottom Line: My tentative answer to the question that titles this post is "no."


Joe said...

This also raises questions about use of informants and police going undercover / participating in crimes to "expose evil" or at least prosecute certain crimes.

Greg said...

I would argue that most people are essentially "consequentialists" (I think I'm going to abuse this term a little) who would express their values in order as such:

1.) Prefer not to have their rights/freedoms violated.
2.) Prefer not to personally violate the rights of others.
3.) Prefer that no one have their rights violated.

As such, these people hold strong aversion to doing something illegal (which would result in a loss of their freedoms) and to personally harming others. They don't want to do the dirty work of harming others in order to prevent greater harm to third parties.

However, there probably are some who would evaluate these differently, such as:

1.) Prefer that no one have their rights violated.
2.) Prefer not to personally violate the rights of others.
3.) Prefer not to have their rights/freedoms violated.

A person who values things in this order would have no problem violating another's rights for the greater good, even if this meant that they would go to prison as a result.

It's probably better for society that most people fall in the first category rather than the latter. However, I'm not sure that I can say that taking actions based on the second type of relative moral evaluation is morally wrong.

As such, I would think that an animal rights activist who has the latter ranking of moral concerns could act morally in accepting an undercover job in a slaughterhouse.

Abortion is another matter. I may cover this in a second post.

Joseph said...

As for the "deceptive editing" claim on the Planned Parenthood videos, I don't know what you mean. From what I read, CMP raised questions of whether Planned Parenthood was violating the law. I read the "money quotes" in the transcript of the video and I was not led to believe that Planned Parenthood was admitting to violating the law. I see how a case could be made even in the context of the full video, but the language in those relevant quotes was fairly hedged and general. The nature of "accounting" (very intentional scare quotes) gives lots of wiggle room for Planned Parenthood.

The claim that there was editing or missing context ignores the substance of the contested statements themselves. Investigative journalism - like making a legal case - involves presenting evidence for that proposition. By putting forward the strongest evidence suggesting possible criminality I see nothing wrong here because I do not see additional context/quotes as providing a substantially different meaning from the video that was initially shown.

I was far more disturbed by the non-medically necessary procedures and maneuvers done to get the most in-demand body parts. Maybe there was informed consent about that, I don't know. And the calloused attitude of the PP leader was a huge focus and can't be washed away with claims about missing context.

On the matter of ethics, I agree with the conclusion of your post here and I am troubled by "authorized criminality" of police, outside of perhaps inchoate offenses.

Joe said...

Unrealistic purity, getting to the main point, for my tastes.

The undercover activist finds what is being done evil, but net believes that a little bit of evil is ethically justified to stop a bigger wrong if that is the only way to stop it realistically in the immediate future, especially when the wrong would occur regardless of their involvement. A pro-life nurse goes undercover. The abortions will occur anyway. Now, the nurse might stop a lot of wrongs, which still is a good thing.

There are limits to this sort of thing. Murder of an abortion doctor even if it will shut down the clinic would not be justified. [A few disagree; this is sadly not unknown, but the line is not arbitrary.] But, then, unlike abortions, murder of abortion doctors isn't going to happen any way if you don't do it.

The idea that even one day at a slaughterhouse as a largely fungible worker in a trade for stopping the killing of the animals there for all time would not be "ethical" is a sense of purity that is unworkable for me in the real world. It is not a matter of ignoring that some harm is involved. Killing in self-defense is at times justified; it is ethical. It isn't harmless. So, there is no "dodge" there.

It is that -- insert your philosophical labeling -- that net you are stopping a lot more evil while doing something that was going to be done anyway (some other person would do the job). You have to weigh all the sides there. So, an undercover sting might be so invasive of privacy, encouraging others to invade privacy etc., that a certain technique might be off limits generally (up to killing people).

And, you have to be honest there. The undercover agent to stop drug crimes might be more trouble than it is worth. Might be different to stop the next 9/11 or child prostitution (agent being let's say the driver, a fungible assistant).

Joe said...

Prof. Dorf's column and other articles explained the deceptive nature of the editing, including to promote the idea that illegal selling of tissue was involved when a full look at the video etc. shows that it is not. I'm unsure of the confusion. A certain person might not judge PP to have broke the law, but some did get that inference. The above person also is likely to have spent more time on it than the average person.

Investigative journalism should provide an informed look - including context - to the reader. Making a "legal case" is often a one-sided affair in our system. OTOH, advocacy tends to be more one-sided. "Journalism" is a bit different.

The "callous" nature very well warrants looking at the context. She was supposedly talking to someone in the business of obtaining this sort of thing. When she is "talking shop" with such people, as compared to a patient or the general public, she is not going to talk in the same way. Especially if we only hear a few minutes of a couple hours of talk. Doctors among themselves also might be "callous" about their profession in some fashion.

Doctors who perform abortions are required to have consent and follow certain procedures for the well being of the patients. If the particular procedure involved was not in the person's best interests, it would be not allowed. OTOH, if there are certain choices you can make here among acceptable options & one might - with consent - obtain tissue that could help with a myriad of medical advances, what exactly is the issue?

I get the idea we have people who don't like abortion, who at best are sadly accepting it is legal, and really are turned off by hearing about it. Abortion, including for those of rape victims, is distasteful on some level. After all, even watching coroners on fictional t.v. shows is unpleasant for some. This seems to be a major point of the activists' efforts here. But, that is more detail, I guess, than addressing the bigger question. Still, since the details were brought up.

Hank Morgan said...

Interesting post. It sounds as if you are endorsing Thomas Aquinas's concept of "double effect." Aquinas argued that a person may commit an act that will cause some harm, provided that the act itself is not morally wrong and the person acts with the sincere intention that the good consequences will outweigh the bad consequences. But, he said, you cannot commit an act that is itself morally wrong, even if you intend and believe that the good consequences will outweigh the bad consequences. This is usually used in the law of war. The argument goes that it is acceptable to bomb a munitions factory even if some innocent civilians will die, because bombing a munitions factory is not itself immoral. But it is not acceptable, in Aquinas's logic, to intentionally bomb a civilian village, even if one intends and believes that this will end the war faster and thus have a good consequence, because bombing a village is an immoral act.

However, I don't agree with your implicit premise that most animal-rights advocates are in the rights-based tradition of Aquinas. In my experience, they tend to be followers of Bentham and Singer, both firm utilitarians who would take the position that you can commit an inherently immoral act (if they would even acknowledge there is such a thing) if you reasonably anticipate and intend the good consequences will outweigh the bad. That would make it acceptable for animal-rights activists to engage in lying and even to work at a slaughterhouse if they thought it would reduce overall animal suffering. However, most pro-life activists identify explicitly with the Aquinas camp, and believe that every person (including, they believe, the fetus) possesses intrinsic moral rights.

So one might expect pro-life activists to have a harder time morally justifying the commission of immoral acts to further their cause. But I'm afraid that when we consider the types of acts committed by the two activist camps, it's hard to see any empirical evidence that one side is more willing to engage in "inherently" unethical behavior than the other. Extremists on both sides have committed extremely serious crimes, perhaps suggesting that the finer points of Aquinas v. Bentham are not driving behavior on the ground.

Joseph said...

Joe, my post made clear that I understand what is being claimed by PP defenders but I have not seen any more than a general accusation. You are wrong that Prof. Dorf's column "explained the deceptive nature of the editing." An "explanation" would perhaps include a quote from the edited video and then other quotes revealing how that quote is misrepresented in smoe substantial way.

You say, "A certain person might not judge PP to have broke the law, but some did get that inference." That some might get an inference does not mean there is deceptive editing. I maintain that it is a reasonable inference even in context of the full video.

I don't buy the "unrealistic purity" of the distinction you draw between investigative journalism and advocacy. Certainly any brand of journalism should not misrepresent the facts (something I didn't remotely suggest would be okay).

The rest of your comment is decent apologetics that we could go 'round about but suffice it to say I'm not buying the various conflations nor assuming everything was done as it 'should' have. Maybe the nurse did inform the woman she was using the ultrasound and manipulating the fetus in the womb a certain way solely to preserve the integrity of its organs. That, I still find troubling. Or maybe a more general consent to donate the organs was plenty good enough to justify whatever was done to get as many as possible in as good shape as possible. At best, that provides an interesting contrast with those who yell rape for laws requiring ultrasounds before an abortion. Yeah, the details matter if we wish to explain and understand the claims being made on both sides.

The bloggers here make many interesting and thoughtful arguments relating to veganism. And while they make me think about such issues, I continue to eat my hamburgers. And maybe you're not in agreement with the bloggers on that issue either, but it would be just as wrong to wave a hand at the realities of "talking shop" and "callousness" involved in the meat industry. It's a nice way not to really engage in a debate.

Prof Buchanan wrote of NYC cab horses some months ago, ultimately lamenting the hard-heartedness (he had a better phrase I don't recall) of horse cab proponents. I noted that that objection may be right, but was akin to a religious objection that doesn't answer the argument of those supporting the use of cab horses. I think the same applies here and I wish people would not be so willing to ignore the important moral concerns and be so comfortable with "shop talk."

Kaelik said...

So I guess I have a question for you Michael Dorf. Are you not a consequentialist? Because you make this whole post about ethics, and yeah you have one side in line about how if you are a consequentialist it is easy, but just everything you wrote gives the general impression that you think non consequentialist ethics are the correct way to address this ethical dilemma.

Also, on the note of none consequential ethics, I just don't see why people don't accept that absent but-for causation, you really shouldn't feel ethically responsible for anything. If you didn't work at that factory, it would have killed all the same cows the same day, because that is what the factory does. If you didn't perform the abortion, it still would have been performed.

Maybe it is because I am a filthy consequentialist, but I just can't seem to muster up the energy to care if I am the one who pushes a button, or if someone else who is there who definitely would have pushed the button if I wasn't there is the one who pushes the button.

And frankly, maybe it is because you are too naive, or maybe it is because you just feel obligated to pretend people are honest, but if you really believe Hobby Lobby was about them not wanting their own actions to provide birth control and not step 1 in a "guerrilla war against [birth control]" exactly as Alito alleges is being carried out against the death penalty, then I have a bridge to sell you.

Unknown said...

@Kaelik: "Maybe it is because I am a filthy consequentialist, but I just can't seem to muster up the energy to care if I am the one who pushes a button, or if someone else who is there who definitely would have pushed the button if I wasn't there is the one who pushes the button."

So when the Serbian commander commands you to kill a bunch of innocent Bosnian civilians, or when the Hutu commander orders you to kill a bunch of innocent Tutsi kids, you comply. "Because, you know, if I hadn't shot them or hacked them to death, someone else would have...."

Joe said...

Will not go on regarding "apologetics" about the facts here. I found yours for your position weak in certain ways & responded.

I don't buy the "unrealistic purity" of the distinction you draw between investigative journalism and advocacy. Certainly any brand of journalism should not misrepresent the facts (something I didn't remotely suggest would be okay).

The comment spoke about "a legal case" and "putting forward the strongest evidence suggesting possible criminality" but in a legal case, the judge and jury sees two sides & with the other side "putting forward the strongest evidence suggesting innocence." One side isn't required to put "context" to weaken their case to give the full picture. A news story has more of a duty to put both sides in. Give us both sides & context.

This wasn't journalism. It wasn't "a legal case" with the duties prosecutors have. This was advocacy. There is a place for it, but it isn't the same thing. This is my point & sorry I didn't try to "remotely suggest" you said that misrepresentation is okay. I find this a red herring. I'll quote myself:

Investigative journalism should provide an informed look - including context - to the reader. Making a "legal case" is often a one-sided affair in our system. OTOH, advocacy tends to be more one-sided. "Journalism" is a bit different.

I find that comment unwarranted. And, you referenced "horse cab proponents" but that isn't apt either. We aren't talking about "proponents" of fetal tissue research only here talking to the general public. We are talking about someone who thought they were talking to insiders. It is not about "proponents" of slaughterhouses talking bluntly about how animals are killed to in op-ed pages. It is about someone running a slaughterhouse talking to someone in charge of the machines to kill them or someone else in the business.

I think your reference misses the point.

Kaelik said...

@Samuel Rickless

"So when the Serbian commander commands you to kill a bunch of innocent Bosnian civilians, or when the Hutu commander orders you to kill a bunch of innocent Tutsi kids, you comply. 'Because, you know, if I hadn't shot them or hacked them to death, someone else would have....'"

There are a lot of different situations in which resistance might change something. If I'm dealing with something like a commanding officer ordering me to kill innocent civilians, protesting might result in other soldiers changing their mind. Depending on the number, I might just shoot the commander instead, if I think that might help.

As opposed to not getting hired at a burger plant. Which is going to convince exactly zero people, unlike filming a plant for few days, even if you have to push the button that would have been pushed by someone else.

Nothing about being a consequentialist requires me to be too stupid to see how different situations are different.

Unknown said...

@Keilik: Sure, there might be situations in which refusing to shoot or killing the commander could change things. But these are few and far between. In the vast majority of these cases, a single act of integrity will not change anything. And then what? Besides, we don't need for these cases to be actual. Hypothetical cases in which it is *stipulated* that refusal won't change anything will do just as well...

Greg said...

Unfortunately, the Serbian commander case gets strongly into point 1 of my post. Most people would probably do it, in fear for their own safety. It's easy to say we wouldn't, but faced with the choice between committing genocide and being killed during one, most of us would unfortunately decide to participate. We'd moralize it after the fact in much the way that Keilik describes, but ultimately we would be protecting our own interests.

This is ignoring training to be a soldier, which is designed to make you submit to authority without asking why, as there often isn't time for why in a combat situation.

Only when the risk of personal harm is less immediate and severe would most people start to ask the kinds of nuanced moral questions here. The slaughterhouse filming example is such a case, and "somebody else would have done it anyway" is a reasonable consideration if all else isn't equal (i.e. you doing it is better because you will be filming it.)

Joseph said...


There certainly are distinctions to be drawn between journalism and advocacy, and certainly between a legal trial and those things. I don't see a crucial need to draw distinctions between journalism and advocacy here where we are speaking of Planned Parenthood's own recorded words. So I will again raise the objection that I do not see where there has been deceptive editing, a claim you didn't wish to expound upon further. I didn't mean to imply you were asserting that I'm okay with misrepresentation, I was just wanting to be very clear that I understand differences between advocacy and journalism.

No doubt CMP's goal is one of advocacy and is using recorded words to that end. But there is an investigative quality to the recorded conversations and they do speak for themselves. The analogy with a trial is that we can all evaluate those words and offer contrary arguments and context.

Finally, I think you misunderstand my invocation of the cab horse blog by Prof Buchanan. My last two paragraphs concerned your dismissive take on shop talk, callous talk, and the distatefullness of abortion. I was likening proponents of cab horses (who can say the horses are "a well-loved, well-regulated, law-abiding part of the tourist economy") to those who dismiss the moral concerns here as mere uninformed distaste which ignores the value of medical research.

Joe said...
This comment has been removed by the author.
Joe said...

"I don't see a crucial need to draw distinctions between journalism and advocacy here where we are speaking of Planned Parenthood's own recorded words."

My general point is not that there is no overlap between advocacy, litigation and journalism but that there are differences. This was noted in my comments and what I wanted to underline.

But, why "recorded words" changes things is unclear to me. Journalism uses "recorded words" in quotes, t.v. interviews and so forth. Advocacy uses them. The two are likely to use them somewhat differently. The putative misleading nature of the edited videos has been addressed by various parties. That is a question of fact to debate, but still shows "recorded words" alone doesn't erase drawing distinctions. As to specifics, "going around and around" on the facts isn't the point of this thread & you didn't seem to see it as such either.


I still don't think the comparisons regarding callous talk on point. "Proponents" of cab horses would be comparable to proponents of fetal tissue research. This is not the issue at hand. The issue are an insider allegedly talking to fellow insiders. I go back to your first comment: "calloused attitude of the PP leader" When? If you aren't talking about in the video, given the context (isn't it ironic) of the conversation, I was misled.

At times, the general pro-choice community might sound "callous," but much less so generally speaking. OTOH, sounds much more like you are speaking about a specific person, who thought she was talking to another insider. Pick you profession. When they talk among themselves, they will often be more crude at times, especially if you single out a few comments they made among the years of time they serve their position.

This is what led to my first response. To be clear, I'm not necessarily agreeing the person was overly "callous," especially as a whole. But, I'll grant it for argument.

Joe said...

ETA: I might actually have misunderstood your reference but this in part is because I watched the "PP leader" providing a response. I saw nothing "callous" about that; it even includes an apology for the tone of the person in the video (which might be a p.r. move). So, I thought the person in the video was being referenced, thus my remarks.

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