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."