by Michael Dorf
Last week's news that a Houston grand jury had cleared Planned Parenthood of any wrongdoing and had instead indicted anti-abortion activists David Daleiden and Sandra Merritt was generally greeted with the kind of joy that only schadenfreude can bring. For example, in a gleeful Daily Show segment, Trevor Noah compared the "twist ending" to the grand jury deliberations to a Hollywood movie in which the seemingly invincible villain is satisfyingly brought down at the last moment. Although I am also pleased that Planned Parenthood was not indicted, I take a dimmer view of the indictment of Daleiden and Merritt.
If you watch the Daily Show segment linked above closely, you will see that (at the 4:12 mark) it briefly borrows some footage from a CBS Evening News segment on the indictments. The full version of that CBS News segment in turn includes a few seconds of me talking (beginning at the 0:54 mark and again at the 1:36 mark), in which I warn that the prosecution of Daleiden and Merritt could chill legitimate journalism and other undercover investigations on matters of public interest. The CBS producers of the segment connected the prosecution of the makers of the Planned Parenthood videos to a chilling effect on environmental and animal rights activists--a linkage I have also drawn in the past (e.g., here).
After I appeared on the CBS News segment, I received some polite and some not-so-polite inquiries from people who wanted to know more about my view. Some of the questioners simply assumed--falsely---that I was expressing sympathy for the anti-abortion/anti-Planned Parenthood goals of Daleiden and Merritt. But others thought that I was missing an important distinction. Journalists aren't supposed to break the law in conducting their investigations, they said. I know that's true under existing law, but as Sherry Colb and I now explain in an op-ed on CNN.com, perhaps journalists need special protection so that, in some circumstances, they should be licensed to violate the law.
As our op-ed acknowledges, granting journalists exemptions from general laws would require resolving some difficult questions, most prominently: who is a journalist? As we note, Daleiden and Merritt do not work for any news organization. Nor do most of the environmental, animal-rights, and other activists who wish to go undercover to bring public attention to activities conducted in secrecy. Does anybody who wants to go undercover get to take advantage of the exemption we favor for journalists?
That's a hard question, but it's not an entirely novel one. The question of who counts as "the press" has arisen under state laws that permit reporters to shield their sources. Most state laws (e.g., California and New York) only grant the privilege to persons working for or otherwise connected with more or less conventional media. However, these laws generally pre-date the internet, while some of the more recently amended or enacted state laws (e.g., Connecticut) include a catch-all that is broad enough to cover at least the publishing, broadcasting, or internet news arm of an activist organization. Given that there is no general obligation on journalists to be "objective", the fact that the news webpage for a pro-life, workers' rights, animal rights, or other activist-oriented organization has a perspective shouldn't distinguish it from, say, FoxNews. I'm not saying that courts necessarily would or should apply an exemption from general laws regarding undercover operations exactly the same way that they apply reporter-source privilege laws, but the basic problem of "who is a journalist?" is at least familiar.
Another line of questions from viewers and readers asked whether a privilege for undercover reporting is needed. After all, journalists don't have one now, and yet they seem to do all right. Perhaps so, but the objection relies on the dubious empirical assumption that journalists (and activists) are currently uncovering all of the important secret information that is important for the public to know without breaking any laws in order to go undercover.
In any event, the need question could be addressed by a carefully limited privilege. In order to escape criminal liability under a general law, a journalist (or activist) could be required to show: (a) that the information was of genuine public interest; (b) that breaking the law was necessary to obtain it; and (c) that the public interest in the information outweighs the interest in enforcing the particular law. The foregoing is not meant to serve as anything like a model statute, but it does at least suggest one approach that could be adopted by a state legislature or by a court as a common-law defense.
A narrower approach--which I endorsed as a construction of the First Amendment in a prior post--would be to permit journalists and activists to escape criminal liability only where they were singled out for prosecution because of hostility to the content of their speech or reporting. But I take that proposition to be the law under the federal First Amendment already. And while it might, in principle, provide sufficient protection for journalists and activists operating undercover, in practice it would be under-protective because of the difficulty of proving illicit motive.
Finally, I want to be as clear as possible that nothing I've said here, in the CBS News segment, or in the CNN op-ed endorses the proposition that Daleiden and Merritt would escape criminal liability under a properly drafted and limited statutory or common-law exemption for undercover investigation. I am only saying that their case presents a question of broader significance.