Thursday, November 30, 2017

The Four Lies and a Truth at the Heart of O'Keefe's Failed WaPo Sting Attempt

by Michael Dorf

Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post.

There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings against liberal targets. To use the language of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law by Prof Sid Tarrow and me, they combine stings--undercover reporting aimed at exposing wrongdoing--with scams--misrepresentation of the results of the stings through selective editing. Thus, even after the Post revealed that it was onto him, O'Keefe released a deceptively edited video suggesting that the Post was really just trying to cover up some other form of wrongdoing. This too was revealed by the Post.

Even as Prof Tarrow and I deplore scams, we acknowledge that there should be some protection for stings. We agree with Profs Justin Marceau and Alan Chen, who argue in a recent Columbia Law Review article that the First Amendment ought to be construed to permit some deception by journalists (and others performing journalistic activities) to gain access to persons or property in order to discover matters of public concern. Protecting scammers like O'Keefe may be the cost of protecting real investigative journalism by honest journalists and activists.

If, as Marceau and Chen, and Tarrow and I, and, in another piece, Prof Colb and I, have argued, journalists and activists engaged in journalist-like activities are sometimes justified in misrepresenting who they are and what they're doing in order to gain access to people or places in order to expose otherwise hidden wrongdoing, O'Keefe and his ilk engage in unjustified lying. In a moment I'll catalogue the unjustified lies but before doing so I want to deal with a threshold objection that even the initial lie was unjustified because the target of the sting was a news organization. That objection is, in my view, misguided.

Someone might think that journalists and activists are never justified in lying to gain access to otherwise hidden places or reticent people. For reasons discussed in the pieces I've mentioned, I disagree. Journalistic stings have a long and distinguished pedigree from before the time of Upton Sinclair. I've defended such stings for causes I support (like animal rights) as well as those I oppose (like the anti-abortion movement). The Planned Parenthood episode that forms the backdrop for my CNN essay with Colb and my forthcoming paper with Tarrow was arguably justifiable as a sting. The problem was the scam, i.e., the misleading editing of the footage: The anti-abortion activists were not content to expose Planned Parenthood officials talking callously about fetal remains (which the officials did); they embellished by making the officials appear to be selling fetal body parts for a profit (which they were not).

Suppose that you agree with me, my co-authors, and Marceau and Chen that lying is sometimes justified to gain access to otherwise off-limits sites or persons. You might think that a news organization is nonetheless an improper target on the ground that it is also devoted to holding others accountable through transparency. However, I don't think that judgment could be categorically supported. If a news organization were systematically sloppy or biased, then exposing its methods as such strikes me as itself newsworthy.

Consider a sting that targeted a different kind of publication. In late 1994, the mathematical physicist Alan Sokal submitted an article to the journal Social Text. It bore the ponderous yet preposterous title Transgressing the Boundaries—Toward a Transformative Hermeneutics of Quantum Gravity and was a parody of postmodernism. The editors of Social Text took it seriously and published it. Sokal believed that he had exposed certain forms of critical theory as, not to put too fine a point on it, bullshit. One can quarrel with that conclusion and some did. To my mind, the most cogent account of what happened and what it signified was provided by Steven Weinberg in a 1996 essay in The New York Review of Books (all but the opening paragraphs of which are behind a paywall, alas, for those w/o a university portal or a subscription). Whatever one makes of Sokal's hoax, at the very least his deception about his intentions brought to light certain facts about how people in various disciplines evaluate evidence and arguments. The sting of Social Text was, in my view, justified.

Likewise, if the Washington Post really were passing off fake news as real or systematically favoring the commercial interests of its owner, Jeff Bezos, in the way that President Trump frequently alleges, then a sting of the Post aimed at revealing as much would be justified. But of course in this, as in virtually everything else, Trump is simply making at best reckless and completely unsubstantiated allegations and more likely lying. There is no reason to think that the Post is deliberately departing from high standards of journalistic practice, even if it, like any fair-minded news organization, occasionally makes errors.

So we have four unjustified lies by O'Keefe and the ironically named Project Veritas.

(1) The initial premise of the sting--that the Post is a purveyor of fake news--is itself false. On the contrary, especially under the leadership of Marty Baron, the Post has been upholding high standards of investigative journalism, which, it should go without saying, is more important now than ever.

(2) Because the initial premise for the sting was not just false, but risibly so, there could be no legitimate reason to try to test the Post by sending a woman to the Post to tell her false story about the pregnancy fathered by Roy Moore and ensuing abortion. That false story was another unjustified lie.

(3) O'Keefe's selective and deceptive editing of his interaction with the Post reporter who tried to interview him as part of the follow-up on O'Keefe's attempted sting was the third unjustified lie. Such scams are never justified.

(4) The final lie--or at least deception--is somewhat more subtle. To explain it, I ask the reader to imagine that the sting had more or less worked. Suppose that O'Keefe's agent had concocted a better story and had enlisted more confederates to vouch for her false story so that the Post fell for it and ran the story. What exactly would the public have thereby learned?

O'Keefe no doubt would have made the case that the Post's reporters are sloppy and biased, which would have been debatable. Even reporters observing high standards of journalistic proof will sometimes be deceived by determined liars.

But presumably O'Keefe would have also been attempting to make a further point about the Post's reporting of the Roy Moore story, the Roy Moore story itself, and allegations of sexual misconduct more broadly. That further point would be something like this: Don't be too quick to believe women who tell stories about sexual misconduct by men, because the women could be lying.

However, even in a world in which the sting had worked, that would not be a fair inference from the sting. The fundamental question now being debated in cases involving allegations that the men accused deny is whether the accusers can be believed. As I discussed in my Verdict column yesterday, that was the issue with Bill Clinton (with respect to Paula Jones and Juanita Broaddrick), it's the issue with Roy Moore, and it's the issue with Donald Trump and his more than one dozen accusers.

Of course it's possible that any particular accuser could be lying. But what should one's default assumption be? Given that women who come forward to name their harassers often face new online harassment and embarrassment, and don't typically stand to gain financially (because the statute of limitations for a civil lawsuit will have run), it's just not that likely that any one woman--much less multiple women with no connection to one another--would simply make up a story about a past encounter. And even if O'Keefe's plant had fooled the Post, that would not be any less true, for the obvious reason that unlike those other women, she had a reason to fabricate: namely, that she was instructed to do so.

My bet is that O'Keefe nonetheless thinks he wins by losing, because his plant suggests that there is a systemic reason for women (or men) to invent stories of past misconduct by political figures: ideological opposition perhaps sponsored by outfits like Project Veritas itself. O'Keefe and his ilk can now point to their own busted sting and say see, women do have a reason to lie: politics.

In a rational world, however, that bit of bootstrapping should fail, because O'Keefe's failed sting did expose one major truth: It turns out that serious journalists are pretty good at detecting lies. The very fact that the Washington Post was able to detect the lie indicates that its prior reporting on Roy Moore was accurate.


Shag from Brookline said...

Let's extend this to a sting accommodated by an attorney in defense of a client via a "journalist" such as, for example, to protect a Harvey Weinstein type client. Might the attorney be involved in a conspiracy? Keep in mind the role of public relations with journalism and the press. It can get nasty. Stings have to be examined on a careful case-by-case basis. After all, a lot of innocents can get stung and have no recourse.

John Barron said...

MD: "O'Keefe and his ilk can now point to their own busted sting and say see, women do have a reason to lie: politics."

E.g., Leeann Tweeden.

greg rubin said...

One of the issues here is that most journalistic stings result in stories that otherwise could not be told but are true being published. In O'Keefs case the opposite is true, a story that is not true would have been published if he had succeeded.

But lets take a deeper dive, lets assume that O'Keef was successful in creating a backstory airtight enough to withstand journalistic review. They created a fake ID, created a company that admitted employing this woman, used a name of someone that actually did receive an abortion at the right time and place, and on and on... The WaPo checks all of this out and confirms the story then goes public, only to then later be outed for publishing a fake story.

At this point what has O'Keef proven? That with enough time and effort, and broken laws, you can fool a newspaper? How is that a surprise? I assume every thinking person appreciates that at some level of sophistication a fabricated story is indistinguishable from truth, and with enough resources it would be possible to trick anyone, even the wary. Heck the US has an entire Agency dedicated to doing just this (CIA) and another in defending against it (FBI).

In the fall out, WaPo would be civilly immune from suit since they certainly didn't show a reckless disregard in publishing. So they are off the hook. But PV would have been sued into the ground. Between WaPo and Moore they would now be the new owners of PV, and rightfully so in that PV intentionally disseminated lies. I guess they could argue there was no actual malice towards Moore, but I doubt the courts would draw that distinction.