Stings, Scams, Activist Journalism, and Fake News

by Michael Dorf

In an essay I wrote at the end of last year on Facebook's plan to label fake news as fake, I included a teaser for an article that I co-authored with my Cornell Department of Government colleague Sid Tarrow. Professor Tarrow and I have now posted a draft of the article on SSRN and will submit it for publication in a law journal shortly. The paper is titled Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism. You can download it here. I will now summarize our argument--which is descriptive and analytic but not normative. On Monday I'll have a post from Professor Tarrow applying his experience and expertise in social movements to the developing anti-Trump movement.

Okay, here's the summary:

After a short prologue on the role of fake news in electing Donald Trump president, we focus the article on what we call the Planned Parenthood sting/scam: the effort by David Daleiden and Sandra Merritt to capture Planned Parenthood officials on camera appearing to offer to sell fetal body parts. Our article draws a distinction between the sting--capturing the Planned Parenthood officials saying something embarrassing and seemingly illegal--and the scam--editing the recordings in a misleading fashion so as to give the impression that the Planned Parenthood officials were doing something they were not, i.e., proposing to sell fetal body parts (which is illegal) as opposed to proposing to recoup some costs (which is legal), and then disseminating that misleading/false story to the public.

Following up on an op-ed by Prof. Colb and me on last year, Prof. Tarrow and I argue that, notwithstanding our disagreement with the substantive aims of Daleiden and Merritt, the sting portion of their operation is not readily distinguishable from the valuable activities of journalists and activists for myriad causes--including animal rights/welfare, labor rights, environmental protection, and more--who go undercover to expose the sins (real or imagined) of businesses, government agencies, or persons whose activities they find objectionable.

We note an odd juxtaposition in the law.

(1) Stings are highly vulnerable to legal action. Although Daleiden and Merritt escaped prosecution in Texas, that was due to a technical defect under Texas grand jury law, not (as Daleiden claimed) because their sting was protected under the First Amendment. We explain that while certain clumsy efforts to target activists will be found invalid if they are content or viewpoint based, savvy legislators, prosecutors, and private litigants can use general principles (such as those found in contract and property law) to crack down on stings.

(2) Meanwhile, scams are difficult to stop. United States v. Alvarez makes clear that lies are not outside the protection of the First Amendment simply because they are lies, and while New York Times v. Sullivan and its progeny leave some room for defamation suits, they are difficult to win. Moreover, even when a plaintiff does win, damages may not suffice to repair the damage. In the article, we explain that the same tactics that scammed Planned Parenthood were previously used against ACORN, resulting in its ultimate disbanding, despite scant evidence of any systemic wrongdoing. The de jure or de facto protected lie, once told, can do considerable irreversible damage.

Thus, our article notes that even though a legal system committed to exposing the truth would give greater protection to stings than scams, in fact our legal system provides scant protection for stings but robust protection for scams.

Part of the legal justification for the courts' failure to provide much protection for journalistic stings, we note, is the difficulty, in an age of mobile phones and social media, of drawing sharp distinctions between journalists and activists for organizations or themselves engaging in journalistic activity. Reluctant to create immunities for journalists that can be claimed by everyone, the courts effectively give no one extra protection as a journalist.

But this is not entirely new. By briefly canvassing the history of journalism since the printing press, we show that the merger of journalism and activism is less a modern innovation than a return of journalism to its roots in activism. The ethos of journalism as objective and non-ideological is largely a 20th-century development that may not last.

In our telling, the distinctively new features of the modern social and technological landscape are, respectively, the emergence in the last half century of a public "right to know" that makes information in the hands of government and private actors of intense interest to the general public and the emergence even more recently of social media platforms that enable "movement halfway houses" to disseminate their messages--including fake news--to sympathetic slices of the public. Taken together, we argue,
the legal principles interact with each other and with the new media landscape to create a perfect storm. With bona fide investigation posing substantial risks but promulgation of falsehoods subject to at-most modest penalties, it is hardly surprising that activist journalists and the organizations and media outlets that support them perpetrate and promulgate scams. Journalism struggles, while fake news thrives.  
As noted above, the paper offers a diagnosis but no course of treatment. We do, however, disclaim one possible inference that might be drawn from our paper. We do not say that the underlying legal doctrines that leave stings vulnerable while protecting scams are wrong. On the contrary, we acknowledge the reasons why the relevant legal principles are probably each justified in their own respective domains, even as we note their perverse interaction.

But if we do not think the law should be changed, what is to be done? I confess not to have a definitive answer. My one small thought on the subject is that people who are concerned about the triumph of fake news over investigative journalism ought to be doing all we can to support journalism by just-the-facts journalists as well as activist journalists whose aims we share. That means donating to your local NPR affiliate, ProPublica, and activist organizations that do the sorts of investigations you support as well as paying to subscribe to news outlets that send reporters to look through public records, attend hearings, and talk to anonymous whistleblowers. Stings are difficult, but a great deal can be discovered without the need to send people undercover.