Stings, Scams, Ag Gag, and the Future of Undercover Journalism

by Michael Dorf

Blogs and scholarship move at different paces. Almost exactly a year ago, I noted that Prof. Sidney Tarrow and I had posted an article on SSRN with the provocative title Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism. As I noted there, the paper uses the effort by anti-abortion activists to show Planned Parenthood officials allegedly selling fetal body parts as an entry point to discuss the interaction of First Amendment doctrine with the changing landscape of activist journalism. That article is now finally in print and also available online as published in the University of Pennsylvania Journal of Constitutional Law.

Although it has only become available in the last couple of weeks, the article bears a 2017 publication date, and we finished our final edits late last year. As a result, the article does not address a potentially important Ninth Circuit case that was decided a few weeks ago. As we note in the article, a federal district court struck down Idaho's "Ag-Gag" law, i.e., its statute criminalizing the use of false statements to gain access to agricultural facilities and to audio-record or video-record what occurs there (among other things). In Animal Legal Defense Fund (ALDF) v. Wasden, a panel of the Ninth Circuit affirmed key parts of that ruling.

Here's how I described the background to the Idaho ag-gag law in an August 2015 Verdict column about the district court ruling (with quotation marks noting where I quoted the district court opinion):
the Idaho legislature enacted the Ag-Gag law in response to the publicity surrounding release of a video showing workers at a dairy farm “using a moving tractor to drag a cow on the floor by a chain attached to her neck and workers repeatedly beating, kicking, and jumping on cows.” The video was made public by an undercover investigator for Mercy for Animals (MFA), an animal welfare organization. In what must be regarded as a tacit admission that these sorts of scenes are sufficiently common on Idaho farms that more such videos would appear unless animal activists were stopped from making them—the Idaho Dairymen’s Association drafted and lobbied for what became the Ag-Gag law.
The district court ruling rested in part on the fact that the obvious purpose and effect of the Ag-Gag law was to target speech--accurate depictions of the cruelty involved in animal agriculture--in order to suppress its message. The Ninth Circuit ruling as to the audio/video recording ban was likewise premised on the fact that this provision was content-based, but interestingly, in invalidating the false representation provision, the Ninth Circuit did not rely on the fact that the law was motivated by an effort to suppress, and in fact suppresses, speech aiming at exposing animal cruelty. Rather, the Ninth Circuit opinion makes clear that the panel would have invalidated the false statement provision even if it weren't targeted at particular messages.

The offending provision of Idaho Code § 18-7042(a) forbids unauthorized entry onto an "agricultural production facility" by "misrepresentation." The Ninth Circuit majority thought this provision overbroad, given two basic points: (1) Under United States v. Alvarez, lies are protected free speech, absent some special reason for criminalizing them; and (2) the breadth of the definition of an "agricultural production facility"--covering grocery stores and restaurants--would result in the criminalization of ordinary, and thus First Amendment-protected, lies.

The Ninth Circuit opinion illustrates the problematic breadth of the misrepresentation provision with the following hypothetical vignettes:
Imagine a situation in which an Albertsons grocery store opens early to the first one hundred affinity cardholders to visit the new, spectacular food court. Given the expansive definition of “agricultural production,” the Albertsons store would be covered under the statute as a facility where agricultural products are “process[ed] and package[ed] . . . into food.” An enterprising person with no Albertsons card, but representing otherwise, or even someone using a friend’s Albertsons card, falls prey to the statute simply because he wants to see the food-court extravaganza. Under subsection (a), our protagonist would be guilty of a misdemeanor and could be punished by up to one year in prison, a fine not in excess of $5,000, or both—not to mention a potential restitution award. Idaho Code § 18-7042(3), (4). The same can be said for a restaurant critic who goes undercover, claiming to be a repeat customer in order to get a prime table from which to review the restaurant’s food, service, and ambiance. In these scenarios, the statute punishes speech where there is no fraud, no gain, and no valuable consideration.
To my mind, there's something very different about these two scenarios. Let's grant that it would be unduly harsh for Idaho to punish someone for lying about having an Albertsons affinity card in order to get to see a food court early, but is that really a First Amendment issue? We might disagree with the court's contention that there is "no gain." After all, without the lie, the person would not have been able to get to the food court early.

Perhaps more importantly, the Albertsons faker is not acting in the public interest, whereas the restaurant critic is. The restaurant critic needs to deceive restaurant management in order to have an authentic experience about which to report. His or her lie is thus very much like the sort of lie that the animal welfare investigator tells to gain access to a farm or slaughterhouse or that the pro-life activists told to the Planned Parenthood officials to hear how they talked about fetal body parts. (Tarrow and I distinguish between such "stings" and the "scam" of misleadingly editing the resulting video.)

There are two distinct sorts reasons for protecting lies as free speech.

First, many lies are either harmless or, if they cause harm, they do so in a way that is not a fit topic for criminalization. The Alvarez Court recognized that lying is, in some sense, just part of communicating. Even if falsely answering "yes" to the question "does this haircut flatter my face?" is not harmless because, under certain circumstances, it will undercut a close relationship (or for some other reason), it would still be inimical to some of the values of the First Amendment to criminalize such a lie. To do so would be a kind of totalitarianism. True, "that haircut looks good" when it actually looks bad is not political speech, but the First Amendment protects personal as well as political speech.

That brings us to the second sort of reason for protecting lies as free speech: Some lies are political speech, and indeed, some lies are actually essential for getting at the truth of matters of legitimate public concern.

When Alvarez lied, he did so in a political context, which makes criminalization of his lying a matter of special concern. But note that Alvarez's lies--including the false claim to have played hockey for the Detroit Red Wings and to have won the Congressional Medal of Honor--did not serve to get at any truth. They were just lies, albeit lies told in a political context.

By contrast, the lies told by undercover animal welfare investigators, pro-lifers attempting to sting Planned Parenthood, and the restaurant critic in the Ninth Circuit's hypothetical example all aim to uncover the truth. They are what Professors Alan Chen and Justin Marceau, in a 2015 Vanderbilt Law Review article, aptly call "investigative deceptions," a sub-category of what they call "high-value lies." In our article, Tarrow and I agree with Chen and Marceau that such investigative deceptions ought to be constitutionally protected.

Against that background, I would conclude with two observations about the Ninth Circuit opinion.

(1) It is at least a little odd that the Ninth Circuit protects high-value deceptions almost by accident. The court treats the restaurant critic--engaged in an endeavor that is relevantly similar to the animal welfare investigators--as no more entitled to First Amendment protection than someone who tells a largely harmless lie that serves no larger public interest. It's good that the court protects investigative deceptions, but it would be better if the court did so expressly.

(2) A main point of the doctrinal analysis in my article with Tarrow is that free speech doctrine will likely prove inadequate to protecting investigative deceptions, because it will tend to protect only against laws--like the "misrepresentation" provision and the recording provision of Idaho's ag-gag law--that expressly target speech. It will provide little protection against general speech-neutral laws embedded in property and contract doctrine. As we note (in our footnote 125), it's also not entirely clear whether Chen and Marceau think that there ought to be a right to an exception from such speech-neutral laws when they apply to investigative deceptions. I have long had some sympathy for such an approach, but the case law seems to point in the opposite direction.

Nothing in the Ninth Circuit opinion gives me confidence that the court would protect investigative deceptions in the face of state law that treated such deceptions as a violation of trespass law. There is some disagreement among judges and scholars about whether, under the common law of property, consent to enter property obtained by deception counts as real consent, but presumably Idaho and other states could, by statute or court decision, clarify or change their property law to define as a trespass a license to enter obtained by deception. Whether that deception sub-provision of state property law would then be treated as a law forbidding lying and thus triggering free speech protection is not clear. I would hope it would be, but the Ninth Circuit's parsing of Idaho property law --and its argument with the dissent on these points--suggests that it probably would not be.

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Bottom Line: The Ninth Circuit ruling in ALDF is welcome news for undercover journalists and activists, but the challenges to such work that Tarrow and I identify in Stings and Scams likely remain.