Stings and Scams: "Fake News," the First Amendment, and the New Activist Journalism

ARTICLES

STINGS AND SCAMS: “FAKE NEWS,” THE FIRST

AMENDMENT, AND THE NEW ACTIVIST JOURNALISM

Michael C. Dorf*

Sidney G. Tarrow**

ABSTRACT

Constitutional law, technological innovations, and the rise of a cultural “Right to Know” have recently combined

to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned

Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for

activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread

of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social

media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful

investigative reporting. But the rise of “truthiness”—that is, falsehoods with the ring of truth, diffused through

new forms of communication—threatens the integrity of the media. How to respond to these contradictions is a

growing problem for advocates of free speech and liberal values more generally.

TABLE OF CONTENTS

PROLOGUE ................................................................................................... 2!

INTRODUCTION: THE PLANNED PARENTHOOD STING/SCAM ................ 4!

I. PROTECTION FOR JOURNALISM, NOT JOURNALISTS .......................... 11!

A. Federal Constitutional Law ............................................................... 11!

B. State Law ...................................................................................... 15!

* Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School.

** Sidney G. Tarrow is Emeritus Professor of Government at Cornell University and an Adjunct Pro-

fessor at Cornell Law School. The names of the authors of this Article are listed alphabetically to

reflect the joint nature of the work represented here. The inspiration for the paper was an opinion

article by Sherry F. Colb and Michael C. Dorf, Should Planned Parenthood Outcome Chill Journalists?,

which can be found at www.cnn.com/2016/01/29/opinions/planned-parenthood-colb-dorf/in-

dex.html (last updated Jan. 29, 2016, 6:44 PM). We are grateful to Lance Bennett, Alan Chen,

Kevin Clermont, Zachary Clopton, Sherry Colb, Angela Cornell, Allen Czelusniak, Jennifer Earl,

Kristen Eichensehr, Kelly Garrett, Valerie Hans, Sarah Kreps, Mona Krewel, Marcus Mann, Jus-

tin Marceau, Joseph Margulies, Aziz Rana, Adrienne Russell, Steven Shiffrin, and Edward Stiglitz

for help and advice in the preparation of this paper. Michael Chu provided excellent research

assistance.

2 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

II. LAW’S PERVERSE EFFECTS ................................................................... 19!

III. ACTIVIST JOURNALISM, PAST AND PRESENT ..................................... 24!

A. American Journalism and Activism ..................................................... 25!

B. Journalism in Movement .................................................................. 27!

C. The Public’s “Right to Know” and the Rise of “Truthiness” .................. 28!

CONCLUSION .............................................................................................. 30!

PROLOGUE

“You look at what’s happening last night in Sweden. Sweden! Who

would believe this,” exclaimed Donald Trump at a political rally in Florida,

not long after his election. What had “happened” was that a little-known

filmmaker, Ami Horowitz, was interviewed on Fox News about a film he had

recently made purporting to show a “surge in gun violence and rape” at the

hands of some immigrants admitted to a country that sees itself as a “human-

itarian superpower.”

As is often the case when the current president repeats

what he sees on his favorite TV station, the story was invented virtually out

of whole cloth by a filmmaker trying to make a name for himself by playing

up purported crimes at the hands of Muslim immigrants. Not only that: it

was denounced by the Swedish government, but not before a Russian news

crew showed up in Rinkeby, a suburb of Stockholm where many immigrants

live, and tried to bribe a few local residents to stage a riot. The Russians, in

turn, were discovered by a Danish news team who filmed their efforts to fake

a riot. Unlike many “fake” news episodes, this one was exposed by an alert

“real news” source and a government that was quick to see its dangers.

This story, which we have summarized from the much richer and deeper

analysis of W. Lance Bennett and Steven Livingston,

is atypical only for its

international resonance and for its quick exposure by an alert government

and a lucky Danish news crew. But it reveals in archetypical form what we

see as a growing trend in mass communications: partisan news sources pick

up and amplify manufactured or manipulated news stories that then gain

See Rich Noack, Sweden Has No Idea What Trump Meant When He Said, ‘You Look at What’s Happen-

ing . . . in Sweden,’ WASH. POST (Feb. 19, 2017), https://www.washingtonpost.com/news/-

worldviews/wp/2017/02/19/sweden-has-no-idea-what-trump-meant-when-he-said-you-look-at-

whats-happening-in-sweden/?utm_term=.cb88d098a613. The Fox News segment at issue was

Tucker Carlson Tonight: Filmmaker Documents Refugee Violence in Sweden (Fox News television broadcast

Feb. 17, 2017). For access to the segment online, see What the US Could Learn from Sweden’s Refugee

Crisis, FOX NEWS (Feb. 17, 2017), http://video.foxnews.com/v/5327830979001/?#sp=show-

clips.

W. Lance Bennett & Steven Livingston, The Disinformation Order: Disruptive Communication and the De-

cline of Democratic Institutions, EUR. J. COMM. (forthcoming 2018).

Oct. 2017] STINGS AND SCAMS 3

resonance in the broader public.

The false story of the immigrant-fueled Swedish crime wave was not an

isolated example of “fake news.” For example, in the weeks before the elec-

tion, search giant Google’s algorithms were gamed to direct the far-right sup-

porters of Donald Trump (and others) to anti-Semitic websites.

Meanwhile,

BuzzFeed discovered hundreds of pro-Trump fake news sites, many of which

had actually come from for-profit click farms in Macedonia.

These sites,

BuzzFeed speculated in an analysis of stories on Facebook, played “a significant

role in propagating the kind of false and misleading content” that energized

Trump’s partisans.

Given the closeness of the election, some observers al-

leged that these stories might have been decisive in securing Trump’s victory,

although the data do not conclusively show such an impact.

Whatever their

impact in 2016, their influence persists. In the post-election period, a semi-

deranged citizen brandishing a shotgun invaded a pizzeria in Washington,

D.C., claiming to have learned from a website that Hillary Clinton was using

it as a conduit for running a sex slave operation.

Shortly after Trump was

sworn in as president, one of his top advisors defended false claims by the

president and his press secretary about the size of the inauguration crowd, not

by insisting on their veracity, but by calling them “alternative facts.”

Since

then, the President himself has repeatedly attempted to appropriate the term

“fake news” to refer to accurate but negative coverage of his own actions.

Carole Cadwalladr, Google, Democracy and the Truth About Internet Search, GUARDIAN (Dec. 4, 2016,

5:00 AM), https://www.theguardian.com/technology/2016/dec/04/google-democracy-truth-in-

ternet-search-facebook (relaying how Google’s and Facebook’s search algorithms are “game[d]”).

Craig Silverman & Lawrence Alexander, How Teens in the Balkans Are Duping Trump Supporters with

Fake News, BUZZFEED (Nov. 3, 2016, 7:02 PM), https://www.buzzfeed.com/craigsilverman/how-

macedonia-became-a-global-hub-for-pro-trump-misinfo?utm_term=.uo8Bv61YQP#.-

puoKoLbpBq (explaining how teens in Macedonia have been creating websites with fake news

content that is posted on Facebook in order to increase the traffic that their websites generate).

Id.

See Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. ECON.

PERSP. 211, 232 (2017) (declining to draw firm conclusions but calculating based on survey data

that the impact of fake news was “much smaller than Trump’s margin of victory in the pivotal states

on which the outcome depended”).

Editorial Board, The Post’s View: ‘Pizzagate’ Shows How Fake News Hurts Real People, WASH. POST (Nov.

25, 2016), https://www.washingtonpost.com/opinions/pizzagate-shows-how-fake-news-hurts-

real-people/2016/11/25/d9ee0590-b0f9-11e6-840f-e3ebab6bcdd3_story.html?utm_term=.-

34dda6684bd9.

Doina Chiacu & Jason Lange, White House Vows to Fight Media ‘Tooth and Nail’ over Trump Coverage,

REUTERS (Jan. 22, 2017), http://www.reuters.com/article/us-usa-trump-priebus-

idUSKBN1560RM (quoting White House senior advisor Kellyanne Conway).

See, e.g., Angie Drobnic Holan, The Media’s Definition of Fake News v. Donald Trump’s, POLITIFACT

(Oct. 18, 2017, 2:11 PM), http://www.politifact.com/truth-o-meter/article/2017/oct/18/decid-

ing-whats-fake-medias-definition-fake-news-vs/ (“Instead of fabricated content, Trump uses the

term [‘fake news’] to describe news coverage that is unsympathetic to his administration and his

performance, even when the news reports are accurate.”); id. (noting that as of mid-October 2017,

Trump had decried what he calls fake news “at least 153 separate times in interviews, on Twitter

4 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

The private sector response to (actual) fake news is a work in progress.

Facebook’s founder, Mark Zuckerberg, initially dismissed the idea that Fa-

cebook should take down hundreds of fake news sites.

But as the issue of

fake news heated up, the social media giant quietly joined Google in blocking

many of these sites from its advertiser network.

The issue became more

complicated when a Syracuse cyber-activist, Daniel Sieradski, created what

he called a “BS Detector” to alert readers to “unreliable news sources.”

reaction to Sieradski’s move, Facebook briefly blocked people from linking

to his “Detector,” citing what it called “security reasons.”

The possible electoral influence of pro-Trump fake news and Trump’s

own ambivalent relationship with the truth were largely responsible for the

high volume of coverage of the “fake news” issue in the wake of the election.

But the volume and intensity of fake news, and of substantially-less-than-fully-

truthful news, have been increasing on the Internet for years, with both polit-

ical and legal implications. A chain of events that was set in motion more

than two years before the 2016 presidential election illustrates this trend.

INTRODUCTION:

THE PLANNED PARENTHOOD STING/SCAM

In July 2014, a pair of anti-abortion activists, David Daleiden and Sandra

Merritt, representing an organization called the Center for Medical Progress

(“CMP”) and a bogus California-based company, BioMax Procurement Ser-

vices, met with an official of Planned Parenthood in a restaurant and tried to

and in speeches”).

See Olivia Solon, Facebook Won’t Block Fake News Posts Because It Has No Incentive, Experts Say,

GUARDIAN (Nov. 15, 2015, 6:52 PM), https://www.theguardian.com/technol-

ogy/2016/nov/15/facebook-fake-news-us-election-trump-clinton (noting Zuckerberg’s initial

skepticism of Facebook’s role in spreading fake news that influenced the election and explaining

that Facebook’s business model depends on users sharing content without professional filtering).

Id.; Samantha Schmidt, Facebook and Google Take Action Against Fake News Sites, WASH. POST (Nov. 15,

2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/11/15/facebook-and-

google-take-action-against-fake-news-sites/?utm_term=.120d6bd18c14.

Olivia Solon, Fake News Detector for Facebook Leads to Fake News Story About Who Made It, GUARDIAN

(Dec. 2, 2016, 3:36 PM), https://www.theguardian.com/technology/2016/dec/02/facebook-

fake-news-flag-techcrunch-bs-detector (explaining how Daniel Sieradski created a plug-in that was

designed to spot fake news but TechCrunch, a technology website, misreported that Facebook itself

had implemented the tool); Jane Wakefield, Fake News Detector Plug-In Developed, BBC (Dec. 2, 2016),

http://www.bbc.com/news/technology-38181158 (discussing TechCrunch’s erroneous report

about Daniel Sieradski’s “Detector” and how fake news poses a threat to people in part because of

the high volume of traffic it receives).

Solon, supra note 12; Wakefield, supra note 12.

See, e.g., Wakefield, supra note 12; Meg Kelly et al., President Trump’s List of False and Misleading Claims

Tops 1,000, WASH. POST (Aug. 22, 2017), https://www.washingtonpost.com/news/fact-

checker/wp/2017/08/22/president-trumps-list-of-false-and-misleading-claims-tops-1000.

Oct. 2017] STINGS AND SCAMS 5

trick her into negotiating the sale of fetal body parts.

This was the “sting”

in the title of this Article. The two activists secretly video-recorded the meet-

ing before editing it to make it seem that the official was offering to sell the

body parts (rather than merely seeking to recoup costs, as permitted by law).

That was the attempted “scam” to which the title of this Article refers.

Researchers studying the growth of mostly right-wing disinformation

campaigns abroad and in the U.S. have noted the use of loosely coordinated

online networks to create and disseminate false and misleading stories into

the mainstream.

The Planned Parenthood scam fit this pattern. Daleiden

and Merritt initially distributed the video via the Internet

before it was

picked up by the legacy media and by a string of conservative politicians—

including then-aspiring presidential candidate Bobby Jindal, then-Speaker of

Manny Fernandez, 2 Abortion Foes Behind Planned Parenthood Videos Are Indicted, N.Y. TIMES (Jan. 25,

2016), http://www.nytimes.com/2016/01/26/us/2-abortion-foes-behind-planned-parenthood-

videos-are-indicted.html (discussing how a grand jury in Harris County, Texas, indicted two anti-

abortion activists who made undercover recordings of their discussion with a Planned Parenthood

official); Alan Zarembo, U.S. Judge Halts Release of Secretly Recorded Videos of Abortion Providers, L.A.

TIMES (Aug. 1, 2015, 7:37 PM), http://www.latimes.com/local/california/la-me-0802-court-or-

der-20150802-story.html (explaining how a federal judge in San Francisco issued an order that

restrains the release of a video showing Planned Parenthood officials discussing aborted fetuses and

that prohibits anti-abortion individuals from releasing to the public the names or addresses of Na-

tional Abortion Federation employees). Both the New York Times and the Los Angeles Times followed

the story in a series of articles beginning in July 2015. See Robin Abcarian, Undercover Video Sting of

Planned Parenthood Is Off-Base, As Usual, L.A. TIMES (July 16, 2015, 6:11 PM),

http://www.latimes.com/local/abcarian/la-me-ra-attacks-on-planned-parenthood-20150716-

column.html#page=1 (discussing the history of staged attacks against Planned Parenthood and the

developments of the aforementioned conversation that took place with an unnamed person and

Ms. Deborah Nucatola from Planned Parenthood’s medical services division); Jackie Calmes, With

Planned Parenthood Videos, Activist Ignites Abortion Issue, N.Y. TIMES (Jul. 21, 2015), http://www.ny-

times.com/2015/07/22/us/with-planned-parenthood-videos-activist-ignites-abortion-issue.html

(discussing Daleiden’s releasing of his private conversation with a Planned Parenthood employee

and the political ramifications, both present and future, of his actions).

Jackie Calmes, Planned Parenthood Is Defended as Senate Democrats Block Bill to End Funding, N.Y. TIMES

(Aug. 3, 2015), http://www.nytimes.com/2015/08/04/us/politics/planned-parenthood-leader-

defends-group-as-senate-blocks-bill-to-end-Its-funding.html (reporting that Planned Parenthood

officials explained that the videoed conversations, in which the organization purportedly negotiated

the sale of fetal tissue for profit, really involved its seeking “reimbursement for the expense of provid-

ing fetal tissue”); Jennifer Gerson Uffalussy, Who Is the 26-Year-Old Man Behind the Planned Parenthood

“Sting” Videos?, YAHOO BEAUTY (July 21, 2015), https://www.yahoo.com/lifestyle/with-2nd-

planned-parenthood-sting-video-a-124676854202.html (reporting that the videos released by

Daleiden were, according to Planned Parenthood, “meant to ‘mislead the public’ through their

‘extremely heavy editing’”); Zarembo, supra note 15.

See Bennett & Livingston, supra note 2. There is no reason why fake news should be a predomi-

nantly right-wing phenomenon. Appetite for and susceptibility to fake news appear to be driven

partly by “whether one’s political party is or is not in power . . . suggesting that reception to fake

news may be rising among liberals.” Marcus Mann, The Differentiation of Cognitive Authority,

Constraint of Beliefs, and the Spread of Fake News 17 (unpublished Ph.D. dissertation proposal,

Duke University) (on file with authors) (citations omitted).

See Jackie Calmes, Video Accuses Planned Parenthood of Crimes, N.Y. TIMES (July 15, 2015),

http://www.nytimes.com/2015/07/15/us/video-accuses-planned-parenthood-of-crime.html.

6 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

the House of Representatives John Boehner, and Texas Governor Greg Ab-

bott.

In response to the release of a similar CMP video targeting Planned

Parenthood in Texas, the Houston district attorney convened a grand jury

to investigate whether any laws had been broken.

Despite winning support from conservative website curators and politi-

cians already inclined to believe the worst about Planned Parenthood,

CMP’s operation did not go entirely as planned. CMP itself released both

the highly edited and somewhat fuller versions of the video, although even

the latter contained gaps and other evidence of having been edited.

Meanwhile, CMP encountered problems stemming from the recordings

themselves, quite apart from the subsequent editing. After the Houston

grand jury convened, it indicted Daleiden and Merritt for using counterfeit

government documents in order to trick the Houston Planned Parenthood

official.

According to the grand jurors, there was probable cause to believe

that the two activists had falsified government documents and had attempted

to purchase human body parts—both crimes under Texas law.

A few

weeks later, agents of California Attorney General Kamala Harris searched

Daleiden’s apartment and seized video files and personal information.

Ac-

cording to Daleiden, the agents had seized what he called his “First Amend-

ment work product.”

A parallel federal civil lawsuit in San Francisco

brought by the National Abortion Federation resulted in a temporary injunc-

tion against dissemination of the California video recordings.

In March

2017, Daleiden and Merritt were charged in the San Francisco Superior

Jackie Calmes & Nicholas St. Fleur, House Republicans to Investigate Planned Parenthood Over Fetal Tissue,

N.Y. TIMES (July 15, 2015), http://www.nytimes.com/2015/07/16/us/house-republicans-to-in-

vestigate-planned-parenthood-over-fetal-tissue.html.

Danielle Paquette, The Charges Against Anti-Planned Parenthood Filmmaker, Explained, WASH. POST:

POST NATION (Jan. 26, 2016), https://www.washingtonpost.com/news/post-na-

tion/wp/2016/01/26/the-charges-against-anti-planned-parenthood-filmmaker-explained/?-

utm_term=.d923d715c79b (“Initially, the grand jury set out to investigate Planned Parenthood.

But on Monday, it instead returned charges against Daleiden.”).

Jackie Calmes, Planned Parenthood Videos Were Altered, Analysis Finds, N.Y. TIMES (Aug. 3, 2015),

http://www.nytimes.com/2015/08/28/us/abortion-planned-parenthood-videos.html (reporting

that an independent study commissioned by Planned Parenthood concluded that the so-called full

version of the video was neither complete nor accurate. FUSION GPS, CMP ANALYSIS 3 (Aug. 25,

2015) (unpublished report), https://www.plannedparenthood.org/files/4214/4709/6038/Foren-

sic_report.pdf.

Fernandez, supra note 15.

Paquette, supra note 20.

Paige St. John, State Attorney General Seizes Videos Behind Planned Parenthood Sting, L.A. TIMES (Apr. 5,

2016, 5:57 PM), http://www.latimes.com/local/lanow/la-me-attorney-general-seizes-planned-

parenthood-videos-20160405-story.html.

Id.

Nat’l Abortion Fed’n v. Ctr. for Med. Progress, No. 15-CV-03522-WHO, 2015 WL 5071977, at

*2 (N.D. Cal. Aug. 27, 2015), aff’d, 685 F. App’x 623 (9th Cir. 2017), cert. petition pending.

Oct. 2017] STINGS AND SCAMS 7

Court with one count of conspiracy and fourteen counts of electronically re-

cording private communications without consent.

When the Houston grand jurors indicted Daleiden and Merritt rather

than the Planned Parenthood official they had stung, many people in the

pro-choice community understandably cheered the stunning reversal.

The

indictment was not, however, an unmixed blessing for supporters of liberal

causes. Even as they condemned CMP for its deceptive editing of the

Planned Parenthood videos, some observers noted that the indictment of

Daleiden and Merritt could have a chilling effect on legitimate journalism.

Others were less concerned, however. Legitimate journalists, they con-

tended, do not break the law.

The immediate issue in Texas was mooted

when, in July 2016, the charges against Daleiden and Merritt were dropped

on procedural grounds at the behest of the prosecution.

Like other jurisdictions that have curtailed the historical independence of

grand juries at common law,

Texas limits the scope of a grand jury’s au-

thority to issue indictments for activities beyond those that the government

seeks to investigate.

Although Daleiden characterized the dismissal of the

indictment as a vindication of “the First Amendment rights of all citizen jour-

nalists,” neither the prosecutor’s decision to seek dismissal of the charges nor

the judge’s acquiescence in that decision appears to have been based on the

First Amendment.

The rights of self-proclaimed citizen journalists like

Complaint at 8, State v. Daleiden, SF2016300608 (Cal. App. Dep’t Super. Ct. Mar. 28, 2017).

See Danielle Paquette, Creator of Anti-Planned Parenthood Videos Faces Felony Charge, WASH. POST: POST

NATION (Jan. 25, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/01/25/-

creator-of-anti-planned-parenthood-videos-faces-felony-charge/?utm_term=.877c494c080c (“Ad-

vocates [of Planned Parenthood] applauded Monday’s grand jury decision.”).

Valerie Richardson, Even Planned Parenthood Supporters Troubled by Prosecution of Pro-Life Investigators,

WASH. TIMES (Feb. 16, 2016), http://www.washingtontimes.com/news/2016/feb/16/david-

daleiden-sandra-merritt-criminal-charges-dis (noting that several pro-choice professors of law and

of journalism thought the criminal charges against Daleiden and Merritt would have a restrictive

effect on journalism).

Id. (“Planned Parenthood officials argue that Mr. Daleiden and Ms. Merritt are criminals, not jour-

nalists [because] ‘[t]hey didn’t document wrongdoing—they fabricated it.’”).

Michael Graczyk, Duo Behind Fetal-Tissue Planned Parenthood Videos Cleared, USA TODAY (July 26,

2016, 4:01 PM), http://www.usatoday.com/story/news/nation/2016/07/26/anti-abortion-duo-

fetal-tissue-videos/87578678/ (reporting that the Harris County prosecutor’s office requested the

charges be dismissed after it concluded “that the grand jury had exceeded its authority by investi-

gating the activists after clearing Planned Parenthood of wrongdoing”).

Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821, 821–42

(2000) (providing an overview of the common law authority of grand juries).

GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND

PROCEDURE § 23:7 (3d ed. 2016) (“[T]here is general agreement that [Texas] prosecutors have

considerable discretion regarding charging matters and that their exercise of this discretion is to be

afforded considerable deference [by grand juries].”).

See Graczyk, supra note 31 (reporting that the district judge “dismissed the tampering-with-govern-

ment-records charges . . . at the request of the Harris County prosecutor’s office,” which explained

that “Texas law limits what can be investigated after a grand jury extension order is issued” and

8 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

Daleiden and Merritt remain very much an open question, one that may be

answered in the federal or state court litigation in California.

The ideological stakes of that question are mixed. True, the Planned

Parenthood sting/scam codes as anti-abortion and thus conservative. Before

founding CMP, Daleiden had worked with another anti-abortion group,

Live Action, known for its video stings of abortion-rights groups.

Yet liberal

and progressive activists also use new forms of communication, combined

with methods that either approach or cross the line of legality, to publicize

targets whose practices they consider objectionable. For example, a group

calling itself “The Yes Men” made a series of films impersonating people or

entities they disliked to expose them to public ridicule.

And in the United

States and elsewhere, organizations like Mercy for Animals and People for

the Ethical Treatment of Animals (“PETA”) secretly video-record and pub-

licize the treatment of pigs, cows, and egg-laying hens on farms and in slaugh-

terhouses as a means of influencing public opinion and the law regarding

animals raised for food.

Like anti-abortion activists, animal-rights activists have also sometimes

found themselves on the wrong side of the law. Consider a recent federal

case: Idaho is one of seven U.S. states with what critics call “ag-gag” laws.

“the grand jury had exceeded its authority by investigating the activists”).

Samantha Allen, Maker of Planned Parenthood Video Called Abortion “Genocide”, DAILY BEAST (July 15,

2015, 7:50 PM), http://www.thedailybeast.com/articles/2015/07/15/who-made-the-planned-

parenthood-video.html (detailing several “undercover video series” Live Action produced during

and after Daleiden’s membership in the organization); Uffalussy, supra note 16 (stating that, while

in college, Daleiden was “involved in the campus chapter of Live Action, a pro-life new-media

movement that uses undercover investigations for its work to end abortion”).

Douglas Britt, The Yes Men Infiltrate DiverseWorks, CHRON. (Apr. 30, 2010, 5:30 AM),

http://www.chron.com/entertainment/article/The-Yes-Men-infiltrate-DiverseWorks-1712890.-

php (explaining the process by which “the Yes Men” operate).

Mercy for Animals promotes its investigations, via its own website, MERCY FOR ANIMALS,

http://www.mercyforanimals.org/investigations (last visited Aug. 13, 2017), and, as illustrated by

its videos, through the mainstream media. See mercyforanimals, Hidden Heroes: Meet Mercy for Animals

Undercover Investigators, YOUTUBE (July 15, 2013), https://youtu.be/RYZveARts7M. Other animal

protection organizations conduct similar operations for similar purposes. See, e.g., PETA, http://in-

vestigations.peta.org/ (last visited Aug. 13, 2017) (listing numerous exposés by PETA investigators

of farming, meat industry, and animal-based research practices); see also Alan K. Chen & Justin

Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 VAND. L. REV. 1435, 1466–71

(2015) (describing the effective use of undercover investigations by animal welfare organizations,

their impact on public policy, and the state laws passed in response in order to shield the affected

industries).

What Is Ag-Gag Legislation?, ASPCA, http://www.aspca.org/animal-cruelty/factory-farms/what-ag-

gag-legislation (last visited Dec. 12, 2016) (describing “ag-gag” laws as legislation that restricts pro-

tections for whistleblowers on industrial farms); see also Michael C. Dorf, Federal District Court Invali-

dates Idaho “Ag-Gag” Law, VERDICT (Aug. 12, 2015), https://verdict.justia.com/2015/08/12/fed-

eral-district-court-invalidates-idaho-ag-gag-law (discussing the importance and implications of the

invalidation of Idaho’s “ag-gag” law).

Oct. 2017] STINGS AND SCAMS 9

The Idaho law criminalizes entering an “agricultural production facility” un-

der false pretenses and separately criminalizes creating an audio or video re-

cording of what takes place there without authorization from the government

or the owners of the facility.

Animal protection organizations successfully

sued to enjoin enforcement of the law.

A federal district judge concluded

that the law was unconstitutional because it was hostile to the message the

activists intended to convey by recording and publicizing activities at farms

and slaughterhouses.

Yet, as we explain below, activists seeking to expose animal abuse, envi-

ronmental damage, exploitation of workers, and the supposed horrors of

abortion are vulnerable under general principles of law. As construed by the

courts, the First Amendment forbids the government from singling out par-

ticular messages for special disadvantage but affords no special protection to

journalists, much less to activists.

As we discuss below, the case law gener-

ally permits the application of laws governing property, contract, and other

matters to be used to keep journalists and activists away from their targets.

For example, if Daleiden and Merritt had been charged with violating a law

forbidding lying to gain access to abortion facilities, they could well have had a

successful First Amendment defense. But because they were charged under

broader general-purpose laws, they probably would not have had such a de-

fense to a charge like the one that they faced, had it issued from a grand jury

with proper jurisdiction.

Meanwhile, as we explore below, free speech law generally does protect

the dissemination of opinions and purported statements of fact, even when

those statements prove false.

Most dramatically, in United States v. Alvarez,

the Supreme Court rejected the notion that lies necessarily fall outside the

protection of the First Amendment.

IDAHO CODE § 18-7042(a), (d) (2017), invalidated by Animal Legal Def. Fund v. Otter, 118 F. Supp.

3d 1195 (D. Idaho 2015).

Otter, 118 F. Supp. 3d at 1199, 1209, 1211–12.

Id. at 1205–07, 1209, 1211–12 (holding the statute violates the rights to free speech and equal pro-

tection because it targets animal activists and their message).

See infra Part I.A–B. See generally Rodney A. Smolla, The First Amendment, Journalists, and Sources: A

Curious Study in “Reverse Federalism,” 29 CARDOZO L. REV. 1423 (2008) (arguing that federal law,

which “[a] number of lower courts” have interpreted as providing no privilege for journalists,

should follow the example of state laws in creating protections for journalists).

See infra Part I.A–B; see also, e.g., Anthony L. Fargo, The Year of Leaking Dangerously: Shadowy Sources,

Jailed Journalists, and the Uncertain Future of the Federal Journalist’s Privilege, 14 WM. & MARY BILL RTS.

J. 1063, 1076–77, 1079–80 (2006) (discussing recent changes in First Amendment protections for

journalists, including their liability under common-law doctrines for trespass and disclosure of

sources’ identity, and courts’ reluctance to recognize a journalist’s privilege).

See infra Part II.

132 S. Ct. 2537 (2012).

10 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

Taken as a whole, First Amendment doctrine produces a startling juxta-

position. Stings—defined here to mean efforts to uncover hidden infor-

mation that the public has an interest in knowing—are legally vulnerable,

while scams—the propagation of opinions and purported statements of fact

that rest on false information—are generally protected.

The various legal doctrines that lead to favoring scams over stings may

well be justified, all things considered. But that does not make the result any

less strange or less important: it could have serious implications for the chang-

ing relationship between journalism and activism.

The balance of this Article shows how the law and the changing techno-

logical and social landscape together foster a “new” kind of activist journal-

ism. We use quotation marks to indicate that the merger of journalism and

activism typified by the Planned Parenthood sting/scam might be better

characterized as a return to the roots of journalism in activism. As we explain

in Part III, the notion of journalism as the objective presentation of “just the

facts” was largely a twentieth-century phenomenon. In prior periods, jour-

nalism was a branch of activism. We think journalism may well be returning

to its activist roots.

Yet in saying that the merger of journalism and activism has deep histor-

ical roots, we do not mean to deny the distinctiveness of the twenty-first-cen-

tury forms that activist journalism takes. As the pre-election wave of fake

news showed, in an era when someone as far away as Macedonia can shoot,

edit, and widely share video on the Internet, and when traditional media

companies tumble while blogs rise, the difference between activists on the

one hand and the media on the other is less and less clear.

Three elements—the peculiarities of contemporary American case law

governing freedom of speech, the ideologically fragmented media landscape,

and the public’s Right to Know

—collectively encourage the dissemination

of what comedian Stephen Colbert aptly called “truthiness,”

the quality of

seeming to be true, without actually being true. Citizen journalism holds

great promise for democracy, but it also tends to produce fake news with the

ring of truth rather than simply promoting a better-informed citizenry. If we

are right, then recent developments at the intersection between the law and

citizen journalism have profound implications for American democracy.

See infra Part II.

MICHAEL SCHUDSON, THE RISE OF THE RIGHT TO KNOW: POLITICS AND THE CULTURE OF

TRANSPARENCY, 1945–1975, at 3–16 (2015) (describing the public’s “Right to Know,” which val-

ues openness and transparency to the public writ large, as a phenomenon that developed dramati-

cally during the 1950s through 1970s).

Colbert Report: The Word—Truthiness, COMEDY CENTRAL (Oct. 17, 2005),

http://www.cc.com/video-clips/63ite2/the-colbert-report-the-word---truthiness (satirizing the

idea of “absolute truth,” especially in the political arena).

Oct. 2017] STINGS AND SCAMS 11

I. PROTECTION FOR JOURNALISM, NOT JOURNALISTS

Readers who are not experts in the Supreme Court’s First Amendment

case law could be expected to wonder whether the merger of activism and

journalism will extend protection for activists or constrict protection for jour-

nalists. Given the difficulty of distinguishing between activism and journal-

ism, what counts as journalistic activity? With the decline of old media and

the emergence of citizen journalism, does everyone now have the sort of con-

stitutional protection that once shielded only The New York Times and CBS

News? The short answer is “yes,”

but the longer answer is more troubling.

Even in the heyday of the institutional press, the Supreme Court construed

the First Amendment as providing no special shield for the press as such.

Yes, every blogger may be a journalist, but the status of journalist is, so far as

the Supreme Court is concerned, nearly worthless.

That is not to say that existing law provides no tools to shelter citizen jour-

nalists. The Pentagon Papers case

and subsequent decisions offer some protec-

tion to expressive activities like journalism.

Moreover, state law may be fer-

tile ground for reconsidering the nature of journalism, because most states

have long recognized at least a qualified privilege entitling reporters to shield

their sources.

As states begin to grapple with how those and other laws

granting journalists distinctive privileges apply to citizen journalists, they can

provide object lessons in how to adapt the law to the new media environment.

A. Federal Constitutional Law

For most of American history, the First Amendment lay dormant. In-

deed, it is not much of an exaggeration to say that the First Amendment was

created in the twentieth century. Despite protestations from Jeffersonians, it

did not prevent the enactment and enforcement of the Sedition Act.

Even

landmark civil liberties decisions of the nineteenth century tended to ignore

principles of free speech and free press.

Thus, the Supreme Court disal-

lowed the use of military tribunals to try civilians,

but did not block Presi-

dent Lincoln’s suppression of dissident speech.

Prior to the modern era,

See Fargo, supra note 43, at 1112–19.

New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 714 (1971) (per curiam) (hold-

ing that the Government did not meet its burden of proof in showing that the law restraining ex-

pression was constitutional).

See, e.g., id.

Smolla, supra note 42, at 1423, 1429–30.

HAROLD HOLZER, LINCOLN AND THE POWER OF THE PRESS: THE WAR FOR PUBLIC OPINION

335–75 (2014).

Id.

See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

HOLZER, supra note 53, at 335–75.

12 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

the First Amendment was thought to do little more than forbid prior re-

straints,

implementing an important but narrow principle most famously

championed by John Milton in Areopagitica in 1644.

This narrow view of free speech began to change after World War I and

the ensuing first Red Scare.

Even then, however, modern free speech prin-

ciples were articulated only in dissents by Justices Louis Brandeis and, after

a time, Oliver Wendell Holmes, Jr.

Their views would not triumph until

the Court began to stand up to McCarthyism in the late 1950s.

Despite

numerous censorial federal enactments, the Supreme Court did not invali-

date any act of Congress on First Amendment grounds until 1965.

Modern constitutional case law involving free speech and free press was

shaped around two main images. First, civil liberties were intertwined with

civil rights.

Second, the case law protected unlikely anti-heroes like racists

and peddlers of smut.

The institutional press appeared as protagonists in

some important cases, such as New York Times v. Sullivan,

which limited lia-

bility for defamation of public officials absent reckless disregard for the

truth,

and the aforementioned Pentagon Papers case,

which featured both

the Times and the Washington Post as parties. But the status of the press qua

LEONARD W. LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY: LEGACY

OF SUPPRESSION 2–4 (Torchbook ed., Harper & Row 1963) (noting that those who believe the

Framers intended a broad First Amendment protection of the press are relating back current views

onto that era); see also id. at 8–9 (describing Blackstone’s definition of a free press under English

common law as “the absence of censorship in advance of publication”); id. at 248 (stating that the

Framers likely understood the First Amendment to protect a free press as defined by Blackstone).

JOHN MILTON, AREOPAGITICA (John W. Hales ed., Oxford at the Clarendon Press 1894) (1644).

THOMAS HEALY, THE GREAT DISSENT: HOW OLIVER WENDELL HOLMES CHANGED HIS

MIND—AND CHANGED THE HISTORY OF FREE SPEECH IN AMERICA 57–60 (2015) (describing

early academic opposition to the constraints on free speech enacted during World War I targeting

“pacifists and Socialists”).

See generally id. (discussing how Justices Brandeis and Holmes came to redefine and reemphasize the

First Amendment in their opinions).

See Geoffrey R. Stone, Free Speech in the Age of McCarthy: A Cautionary Tale, 92 CALIF. L. REV. 1387,

1406 (crediting Justice Brennan with the shift in the Court’s jurisprudence).

See Lamont v. Postmaster Gen., 381 U.S. 301, 310 (1965) (invalidating regulation of mail containing

communist propaganda).

See generally HARRY KALVEN, THE NEGRO AND THE FIRST AMENDMENT (1965) (demonstrating

how the African-American Civil Rights Movement changed the First Amendment).

See Brandenburg v. Ohio, 395 U.S. 444, 448 (1969). Brandenburg states the canonical limits on gov-

ernment power to censor speech to protect public safety. Id. The winning party was a Klansman.

Id. at 444.

See Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988) (holding that a public figure could not recover

for intentional infliction of emotional distress resulting from a lewd parody published in a porno-

graphic magazine). Hustler is one of a great many free speech cases protecting pornographic publi-

cations.

376 U.S. 254 (1964).

Id. at 279–80.

New York Times, Co. v. United States (Pentagon Papers), 403 U.S. 713 (1971).

Oct. 2017] STINGS AND SCAMS 13

press has played no formal role in these or other cases. The logic of these

cases would have given a person distributing leaflets in the public square the

same rights as the Times and the Post.

More broadly, Supreme Court case law largely rejects the notion that the

right to freedom of the press grants the institutional press or people who work

for it any protection beyond what is afforded to every individual as a matter

of free speech. Admittedly, normative arguments can be and have been

made for giving the First Amendment’s press clause independent weight be-

yond the speech clause,

and there may be some remaining room in the

doctrine for treating journalists per se as special.

Yet taken as a whole, the

case law tends to treat journalists no better than anyone else.

For example, in Zurcher v. Stanford Daily,

the Court held that police seek-

ing the identities of student protesters who had earlier clashed with authori-

ties could execute a search warrant against a newspaper, without making any

special showing beyond what would be required to search a bakery or a bowl-

ing alley.

Despite acknowledging that the First and Fourth Amendments

emerged from a common history of executive abuse, the majority rejected

the notion that special procedures should be adopted to protect newspapers

or other media outlets.

The Zurcher ruling cited as precedent a 1972 case, Branzburg v. Hayes,

which

held that the First Amendment provides reporters with no privilege to shield

confidential sources against a subpoena.

There, the Court invoked the hoary

principle that “the public . . . has a right to every man’s evidence,” thus treating

a professional journalist as no different from a random witness to a crime.

To be sure, modern free speech law does provide some protection for

journalism, just not for journalists. In other words, the status of working for

a news organization confers no special First Amendment rights, but the law

nonetheless may not single out for disadvantageous treatment those activities

associated with speech and the press.

The Pentagon Papers case is the most famous example of the Supreme

Court holding that, absent a compelling particularized showing of imminent

danger, the government may not block the dissemination of information,

See generally, e.g., Sonja R. West, Press Exceptionalism, 127 HARV. L. REV. 2434 (2014).

See C. Edwin Baker, The Independent Significance of the Press Clause Under Existing Law, 35 HOFSTRA L.

REV. 955, 959–60 (2007).

436 U.S. 547 (1978).

Id. at 565–66.

Id. at 564–67.

408 U.S. 665 (1972).

Id. at 708; see also Zurcher, 436 U.S. at 566.

Branzburg, 408 U.S. at 688 (alteration in original) (citations omitted).

14 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

even if the information came into the possession of the would-be dissemina-

tors as a consequence of law breaking.

Pentagon Papers itself only vindicated

the narrow principle championed by Milton in the seventeenth century: the

First Amendment establishes a “heavy presumption against” prior re-

straints.

But a subsequent ruling extended the protection to persons

charged with after-the-fact liability.

How much protection do the principles established in these cases provide

for journalism, and thus, indirectly, for journalists? Some, but case law pro-

vides nothing like a get-out-of-jail-free card for contemporary citizen jour-

nalists (or even conventional journalists) who take their cellphone-video cam-

eras to slaughterhouses, to abortion clinics, or to the streets.

The Idaho ag-gag case we described above illustrates both the speech-

protective and speech-unprotective features of contemporary case law.

the civil libertarian side of the ledger, it is notable that nothing in the federal

district court opinion striking down Idaho’s law turned on the nature of the

organizations suing. They were activists who engaged in journalistic activi-

ties, which was sufficient to protect them. Indeed, the district court opinion

expressly compares the activists to early twentieth

century muckraking activ-

ist journalist Upton Sinclair.

The Idaho ag-gag case thus shows that First

Amendment doctrine now shelters activist journalism.

Yet even assuming that the Idaho ag-gag ruling is upheld on appeal, jour-

nalism—by activists as well as by conventional journalists—remains highly

vulnerable. The fact that the Idaho law effectively singled out a particular

message for special burdens was crucial to the district court’s ruling.

Noth-

ing in the decision casts doubt on the ability of government officials and pri-

vate property owners to enforce general laws that do not target speech or par-

ticular messages. Activists for animal rights and other causes, as well as

conventional journalists, remain vulnerable to the application of general laws

restricting trespass, enforcing contracts, forbidding fraud, and more.

Consider the case that might have been brought against Daleiden and

Merritt by a prosecutor working with a grand jury properly tasked with in-

vestigating them. In Houston, Daleiden and Merritt initially stood accused

of violating laws that apply to everyone. For example, the charge of tamper-

New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 714 (1971).

Id. (quoting Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963)).

See Bartnicki v. Vopper, 532 U.S. 514, 514 (2001) (holding that the First Amendment shields radio

commentators from civil liability for playing a recording on air, notwithstanding the fact that it was

illegally recorded by a third party).

See Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195 (D. Idaho 2015).

Id. at 1201–02.

Id. at 1204–07.

Oct. 2017] STINGS AND SCAMS 15

ing with a government document would not raise any First Amendment is-

sues at all if brought against a twenty-year-old who altered his driver’s license

in an effort to purchase alcohol in violation of state law. The Supreme Court

cases denying special protection to journalists to resist searches or to shield

their sources indicate that even bona fide journalists would be entitled to no

First Amendment defense if they broke a general law to gain access to

Planned Parenthood officials or other alleged evildoers

: the leading federal

appeals court case, involving two reporters for ABC News, denied any special

right of undercover access for investigators.

Daleiden and Merritt escaped prosecution under a technical limitation of

the scope of grand jury jurisdiction in Texas.

The dismissal of charges against

them did not vindicate their First Amendment rights. Indeed, as we have seen,

if the case had gone forward, Supreme Court First Amendment case law would

have left them vulnerable to prosecution and conviction. Thus, they face the

real prospect of conviction and imprisonment in California.

B. State Law

In the United States, civil liberties are sheltered by not only the federal

Bill of Rights but also by federal statutes, state constitutions, state statutes,

and common law. Despite repeated efforts in Congress to introduce legisla-

tion providing reporters with the right to shield sources,

federal statutes

provide no special protection to journalists or other investigators. While a

few federal appeals courts have suggested that there is some First Amend-

ment protection for a reporter-source shield, in light of Branzburg, “these

courts may be skating on thin ice,” as Judge Richard Posner observed.

Does state law provide any additional rights?

In key respects, the answer is no. So far as we have been able to determine,

no state permits an undercover activist or journalist to escape criminal or civil

liability under an applicable general law (that is, one not directed specifically

at speech or a particular message).

In that respect, state constitutions have

See supra notes 71–73 and accompanying text.

See Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 520–22 (4th Cir. 1999) (affirming

damages award against journalists, who had forged documents to gain entry to supermarkets and

secretly videotape the supermarkets’ practices, based on Supreme Court precedent upholding jour-

nalist liability under generally applicable laws).

See Graczyk, supra note 31.

See, e.g., Alicia Armbruster, Protecting Reporters’ Privilege?, FIRST AMEND. CTR. (Apr. 12, 2007),

http://www.firstamendmentcenter.org/protecting-reporters-privilege; Jason Stverak, The Senate’s

Feel-Good Shield Law, U.S. NEWS (Apr. 9, 2014, 8:00 AM), http://www.usnews.com/opinion/arti-

cles/2014/04/09/the-senates-media-shield-law-is-toothless-and-arbitrary.

McKevitt v. Pallasch, 339 F.2d 530, 533 (7th Cir. 2003).

There may be some wiggle room for journalists and activists in state tort law. For example, Judge

Posner expressed the background rule that “there is no journalists’ privilege to trespass,” even as he

16 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

generally been construed in parallel with the federal First Amendment.

However, in one area, state law departs substantially from the federal

model. Nearly all of the states provide some protection to journalists to shield

their sources.

As of late 2015, thirty-nine states did so through statutory

shield laws, with courts in a few states that lack such statutes filling the gap

as a matter of common law or by construing state constitutional protections

for free speech and free press more generously than the U.S. Supreme Court

has construed the parallel provisions of the First Amendment.

In providing

journalists with a form of protection that the general public lacks, state law-

makers and—in the states that provide protection via common law or state

constitutional interpretation—state courts have had to determine both what

counts as journalism and who counts as a journalist.

Most states distinguish between journalists—who qualify for the privi-

lege—and the rest of the public, presumably including activists, bloggers,

YouTubers, and other self-appointed or part-time journalists.

California’s

shield law is quite typical. It offers protection against contempt of court for

journalists who shield their sources.

The coverage extends to any “pub-

lisher, editor, reporter, or other person connected with or employed upon a

newspaper, magazine, or other periodical publication, or by a press associa-

tion or wire service.”

A state intermediate appellate court held that this

language extends to publication online, at least where the Internet-based

publication was in most respects similar to older media.

found that consent to enter property is often valid even though obtained by fraud, and thus ruled

in favor of journalists who posed as patients to expose profit-motivated bad medical decisions by

doctors. Desnick v. ABC, Inc., 44 F.3d 1345, 1351–55 (7th Cir. 1995). But even read for all that

it is worth, this protection apparently could be overridden by a state legislature without offending

state or federal constitutional law. And even without such an override, other courts disagree. See,

e.g., Med. Lab. Mgmt. Consultants v. ABC, Inc., 30 F. Supp. 2d 1182, 1201–02 (D. Ariz. 1998)

(holding that consent induced by misrepresentation or a mistake known to an alleged trespasser is

“not effective”), aff’d, 306 F.3d 806 (9th Cir. 2002); Shiffman v. Empire Blue Cross & Blue Shield,

681 N.Y.S.2d 511, 512 (N.Y. App. Div. 1998) (finding that “consent obtained by misrepresentation

or fraud is invalid”); see also RESTATEMENT (SECOND) OF TORTS § 892B(2) (AM. LAW INST. 1979)

(cited by the courts in both of the preceding citations).

Smolla, supra note 42, at 1429 (stating “that some 49 states and the District of Columbia have ex-

tended some form of newsgathering privilege to citizens”).

Paul M. Smith & Jessica Ring Amunson, State Shield Laws, in 2 TESTIMONIAL PRIVILEGES § 8:6 (3d

ed. 2015).

Cf. Paul M. Smith & Jessica Ring Amunson, Who May Assert the Privilege, in 2 TESTIMONIAL

PRIVILEGES § 8:8 (3d ed. 2015) (noting that only a few states protect the latter category of online

activists, bloggers, YouTubers, etc.).

CAL. EVID. CODE § 1070(a) (West 2009).

Id. Nearly all other states have similar restrictions. A complete list of state shield laws can be found

in Smith & Amunson, supra note 90, at n.1.

See O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 99–105 (Cal. Ct. App. 2006) (concluding that

the California shield law protected a news website “which differ[ed] from traditional periodicals”

only slightly).

Oct. 2017] STINGS AND SCAMS 17

A few state laws could be construed to provide even broader coverage.

For example, Georgia affords a qualified right to shield confidential sources

to “[a]ny person . . . engaged in the gathering and dissemination of news for

the public through . . . electronic means.”

In principle, that would entitle

an activist blogger to protection. Likewise, the Maryland statute specifically

includes protection for persons working (even as independent contractors or

students) for entities that use “electronic means of disseminating news and

information to the public.”

A 2006 intermediate appellate decision con-

strued this language as covering an online financial newsletter,

and it too

could in principle be said to cover activist bloggers. The West Virginia shield

law only covers reporters but defines “reporter” in a way that could reach

activists.

A New Jersey trial court judge found that that state’s shield law,

which extends to persons “connected with . . . news media”

did not cover

all bloggers, but did cover a blogger/activist for a website affiliated with a

nonprofit county government watchdog organization.

100

Four other state shield laws likewise contain language that could be un-

derstood to reach activists,

101

although the count is necessarily tentative be-

cause there is very little case law testing the bounds of who is or is not a

journalist entitled to shield her sources. Laws that on their face appear to

apply to activists could be construed narrowly, while laws that are written in

narrower terms could be construed more broadly.

However, even if construed broadly to cover activists, state shield laws do

not in practice provide much more protection than does federal law. Under

state law, the privilege is typically qualified, not absolute; it can be overcome

by a special showing of need for the evidence.

102

Moreover, even a strong

privilege will not protect a journalist’s source in all proceedings. A reporter

cannot count on a state law shielding her sources because she cannot know

in advance if she will be called to testify in federal court in relation to issues

of federal law, where the no-shield rule of Branzburg applies.

103

Accordingly,

a reporter who aims to assure a source that she will truly protect the source

GA. CODE ANN. § 24-5-508 (2017).

MD. CODE ANN., CTS. & JUD. PROC. § 9-112 (West 2017).

Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 907 A.2d 855, 863 (Md. Ct. Spec. App. 2006).

W. VA. CODE. ANN. § 57-3-10 (West 2017) (“‘Reporter’ means a person who regularly gathers,

prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that

concerns matters of public interest for dissemination to the public for a substantial portion of the

person’s livelihood, or a supervisor, or employer of that person in that capacity.”).

N.J. STAT. ANN. § 2A:84A-21–21.8 (West 2017).

100

In re Jan. 11, 2013 Subpoena by Grand Jury, 75 A.3d 1260, 1263, 1267–68 (N.J. Super. Ct. Law

Div. 2013).

101

MINN. STAT. § 595.023 (2017); NEB. REV. STAT. §§ 20-144–147 (2012); OR. REV. STAT. § 44.520

(2015); S.C. CODE ANN. § 19-11-100 (2017).

102

See Fargo, supra note 43, at 1068, 1119; see also Smolla, supra note 42, at 1429.

103

See FED. R. EVID. 501 (recognizing state law privileges only “regarding a claim or defense for which

state law supplies the rule of decision”).

18 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

cannot rely on the law; instead, the reporter must make a credible promise

to go to jail for contempt rather than submit to a court order to testify.

Yet if state shield laws provide little in the way of practical assurance to

journalists or activists, at least they show that state lawmakers and judges

have explored an alternative to the federal approach under which the First

Amendment provides no protection to speech and the press against the ap-

plication of general laws. The existence of even a qualified privilege under

state law thus establishes an important principle.

How far that principle should go raises a set of difficult normative ques-

tions. The Supreme Court case law declining to give special protection to

speech, speakers, or the institutional press might be thought to go too far in

limiting speech. Indeed, it seems especially problematic that journalists and

activists can be penalized for lying to gain access to private property in order

to discover facts of legitimate interest to the public, while police may use in-

formants—aptly called “pretend friends” by one commentator

104

—to gain

such access in order to investigate suspected criminal activity without abridg-

ing privacy rights under the Fourth Amendment.

105

Yet it is not clear that the different approaches should be harmonized by

permitting journalist/activist access, rather than by denying police access

(absent satisfaction of Fourth Amendment requirements). After all, there are

legitimate concerns that counsel caution before trying to fashion a constitu-

tional or other rule granting journalists or activists the access they would seek.

These include security, privacy, and the difficulty of drawing sensible lines

dividing the press, activists, and the general public.

Whether activists should be able to claim statutory, common-law, or con-

stitutional protection for their reportage has implications for a great many

questions. Who, if anyone, may shield a whistleblower or other source?

Should people have a right to record their interactions with the police? To

record the interactions of others with the police? What of activists like Dalei-

den and Merritt who go undercover to investigate alleged or imagined

wrongdoing, whether by doctors, farmers, bankers, or government agencies?

Should the mere breaking of the law deprive them of protection as speakers?

And if so, what about people and institutions that receive and then publish

information obtained by lawbreakers?

As we have seen, case law and statutes appear to provide straightforward

answers to questions like these. From Daniel Ellsberg to Edward Snowden,

the fact that a source of information is tainted has not been thought to be

sufficient grounds for the government to restrain publication. At the same

time, however, the First Amendment does not give professional journalists

104

Sherry F. Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a

Remedy, 55 STAN. L. REV. 119, 139 (2002).

105

See id. at 139–44.

Oct. 2017] STINGS AND SCAMS 19

any preferred position. Whether reporters seek to shield sources or to resist

search warrants, the Constitution treats journalists no differently from bakers

and candlestick makers. And while state law provides some special privileges

to reporters to shield their sources, it does not appear to provide journalists

any broader exemptions.

That result might, at first blush, seem sensible. After all, if anyone with

a mobile phone can plausibly claim to be a journalist, then journalists can

claim no exemption from general legal obligations. But seen from the oppo-

site direction, the law’s leveling down is profoundly disturbing. If no one is

a journalist because everyone is a potential journalist, then there is no free-

dom of the press. As we also have seen, the Supreme Court’s cases do not

go quite that far. As the Pentagon Papers case illustrates, the Court provides

some protection for the activity of journalism, even though the status of being

a journalist provides no special rights. Whether that protection is enough,

given the ease with which First Amendment limits can be circumvented

through the application of general laws to journalists and activists, depends

on how one weighs such incommensurable factors as speech, privacy, secu-

rity, and the relative institutional advantages of courts and legislators.

II. LAW’S PERVERSE EFFECTS

Different readers will draw different conclusions about whether U.S. law

adequately protects journalists and/or activists who go undercover to expose

real or imagined evils. For our purposes, however, it will be useful to contrast

the scant protection afforded to undercover investigations with the relatively

robust protection the law affords to the dissemination of falsehoods. As we

shall see, the law plays a role in reinforcing the alternate realities that modern

technology and social norms facilitate. The law’s impact may be perverse,

as the Planned Parenthood story reveals.

We have distinguished between two phases of the anti-Planned

Parenthood operation—the sting and the scam:

• In the sting phase, Daleiden and Merritt misrepresented their identities in

order to gain access to Planned Parenthood officials, whom they surrep-

titiously recorded.

• In the scam phase, they used CMP and a network of social conservative

blogs, media outlets, and politicians to spread the false message that

Planned Parenthood profits from the sale of fetal body parts obtained via

abortions.

106

A legal regime designed to vindicate a broad-based right of the public to

learn the truth would seemingly provide robust (or at least some) protection

106

See supra Introduction.

20 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

for undercover investigators seeking to detect wrongdoing that affects the

public interest while discouraging the spread of false information. It would,

in other words, protect the sting while discouraging the scam. And yet, our

legal system does nearly precisely the opposite.

As we have seen, neither freedom of speech nor freedom of the press would

prevent the prosecution of actors such as Daleiden and Merritt for violating

speech-neutral laws like those forbidding falsifying government documents.

107

More generally, undercover journalists and activists have no free speech shield

under state or federal law for violating speech-neutral laws protecting property,

privacy, or contracts. Although clumsy legislative efforts (such as the Idaho ag-

gag law) that target speech or particular viewpoints will fail, sophisticated gov-

ernment and private lawyers seeking to restrict access to sensitive facilities or

personnel will increasingly turn to general laws and common law doctrines to

keep out journalists and activists. In short, stings are vulnerable.

By contrast, scams in the sense of false claims of the sort made by Dalei-

den and CMP, as well as completely fake news of the sort that drew attention

following the 2016 presidential election, can thrive. Indeed, to a considera-

ble extent, such scams are constitutionally protected.

Consider the case of United States v. Alvarez.

108

A local government official

who falsely claimed to have received the Congressional Medal of Honor was

indicted and convicted for violating the Stolen Valor Act, a federal statute

that criminalizes false statements about military awards, with special penal-

ties for such statements about the Congressional Medal of Honor.

109

Even

while describing the official as a habitual liar, the Supreme Court invalidated

the conviction and the Act on free speech grounds.

110

In the lead opinion,

Justice Anthony Kennedy rejected the Government’s “contention that false

statements have no value and hence no First Amendment protection.”

111

To be sure, Alvarez involved a criminal prosecution. It left civil liability

available for defamatory statements, but this option came with an important

caveat. As the Court itself emphasized in Alvarez, “Even when considering

some instances of defamation and fraud . . . falsity alone may not suffice to

bring the speech outside the First Amendment. The statement must be a

knowing or reckless falsehood.”

112

Would that caveat avail Daleiden and CMP in a defamation suit target-

ing the scam? The answer is not entirely clear. The leading Supreme Court

107

See supra Part I.A–B.

108

132 S. Ct. 2537 (2012).

109

Id. at 2542–43 (citing Stolen Valor Act of 2005, 18 U.S.C. § 704 (2012), invalidated by Alvarez, 132 S.

Ct. 2537 (amended 2013)).

110

Alvarez, 132 S. Ct. at 2542–43.

111

Id. at 2544.

112

Id. at 2545; see also New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

Oct. 2017] STINGS AND SCAMS 21

case allows that deliberate misquotations in print can be the basis for a libel

action consistent with the First Amendment.

113

No similar case has decided

whether that principle extends to editing out context (but not otherwise al-

tering content) of video so as to mislead viewers about what was meant.

However, even assuming that Daleiden and CMP could be held liable for

defamation based on misleading editing, such liability leaves targets like

Planned Parenthood highly vulnerable to misleading as well as outright fake

reports about its activities. Proving deliberate or reckless misquotation will be

difficult, as the defendant can always claim (often justifiably) that some edito-

rial judgment is necessary to turn notes or raw footage into sellable news.

Moreover, civil damages will often be inadequate, even when they succeed.

Suppose that the plaintiffs ultimately succeed in obtaining a judgment

against CMP and Daleiden in the civil litigation in California. CMP and

Daleiden almost certainly lack the resources to satisfy a judgment for all of

the damage that will have been done by the scam, including the loss of future

public resources. Thus, tort liability for CMP and Daleiden will not neces-

sarily protect Planned Parenthood from harm to its reputation.

Consider the important example of the Association of Community Or-

ganizations for Reform Now (“ACORN”), which was the victim of a 2009

sting/scam that foreshadowed the one directed at Planned Parenthood.

114

In response to the spread across the politically conservative mediaverse of the

false meme that ACORN systematically promoted voting fraud, Congress

defunded it.

115

ACORN sued the government, claiming that the defunding

measure was an unconstitutional “bill of attainder”—that is, a punishment

impermissibly meted out by the legislature rather than by the courts.

116

But ACORN’s lawsuit failed.

117

According to the federal appeals court

that resolved the case, Congress merely failed to fund, but did not punish,

ACORN.

118

From the perspective of ACORN and its enemies, of course,

that was a distinction without a difference. Even before the appeals court

delivered that coup de grâce, the writing was on the wall. Starved of the public

113

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 513–14, 517, 525 (1991).

114

ACORN v. United States, 618 F.3d 125, 130–131 (2d Cir. 2010) (relating that a “scandal arose in

the summer of 2009 when ‘hidden camera’ videos revealed ACORN employees and volunteers

providing advice and counseling in support of a proposed prostitution business,” although an inde-

pendent report concluded that “the hidden-camera videos were heavily edited, ‘manipulated,’ and

‘distorted’”) (citations omitted).

115

Id. at 131.

116

ACORN, 618 F.3d at 131–32.

117

Id. at 138, 141–42.

118

Id.

22 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

resources on which it had come to rely,

119

ACORN disbanded.

120

The

sting/scam had worked.

In noting the inadequacy of liability for defamation as a means of deter-

ring future scams, we do not mean to suggest a clear path of law reform. As

a candidate for office, Donald Trump proposed to “open up” libel laws to

make it easier for plaintiffs to win defamation judgments,

121

but as president

there is little he can do to accomplish this goal. Tort law is state law, not

federal law, and even if President Trump can use his bully pulpit to influence

state defamation law, there is no reason to think that the Supreme Court

would overrule the constitutional limits on defamation liability.

Nor should it. The justices were right to worry that the alternative of too-

easy liability for defamation can be used to harass and intimidate activists

who are not scammers. It is no accident that the leading case limiting such

liability on First Amendment grounds involved a lawsuit by an Alabama of-

ficial against the New York Times for publishing an advertisement by civil

rights activists.

122

And even when legitimate speech is ultimately protected,

defending a lawsuit can be costly—as Oprah Winfrey discovered when

ranchers sued her under the Texas False Disparagement of Perishable Food

Products Act for airing a television show segment about mad-cow disease.

123

Nor is it clear that free speech doctrine ought to be changed to grant

journalists and activists a privilege to conduct stings. In their illuminating

discussion of undercover journalism (including by activists), Alan Chen and

Justin Marceau persuasively argue that ag-gag laws and other laws that target

what they helpfully call “investigative deceptions” violate the First Amend-

ment. They contend that such deceptions should be protected because they

promote the truth, by contrast with those lies that receive First Amendment

protection despite the damage they do.

124

We agree entirely, but as we explained above, in general the free speech

and free press rights protect only against laws and policies that target speech

119

Id. at 131 (noting that in 2009, “[s]everal states suspended their funding of ACORN and its affili-

ates”).

120

See Michael A. Memoli, ACORN Filing for Chapter 7 Bankruptcy, L.A. TIMES (Nov. 2, 2010), http://ar-

ticles.latimes.com/2010/nov/02/news/la-pn-acorn-bankruptcy-20101103 (reporting that

ACORN would be filing for bankruptcy as it “was not able to recover from” the sting/scam).

121

Hadas Gold, Donald Trump: We’re Going to “Open Up” Libel Laws, POLITICO (Feb. 26, 2016, 2:31 PM),

http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866.

122

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

123

See Tex. Beef Grp. v. Winfrey, 201 F.3d 680, 682–84 (5th Cir. 2000); see also Sue Anne Pressley,

Oprah Winfrey Wins Case Filed By Cattlemen, WASH. POST (Feb. 27, 1998), https://www.washing-

tonpost.com/archive/politics/1998/02/27/oprah-winfrey-wins-case-filed-by-cattlemen/-

dd4612f5-ccbf-4e3d-a1c1-f84d1f4fd23c/?utm_term=.a26af1b78a9f (describing six-plus week trial

involving “untold legal fees”).

124

Chen & Marceau, supra note 37, passim.

Oct. 2017] STINGS AND SCAMS 23

based on its content, not against the application of general laws and doc-

trines—such as property, contract, and the like—that happen to infringe on

expression in particular cases.

125

Perhaps constitutional doctrine ought to be

changed to provide greater protection against such incidental burdens (as

one of us has argued);

126

yet such a change could have real costs, especially

in an era when social conservatives increasingly point to religious freedom

and freedom of expression as grounds for opting out of legal obligations to

avoid discriminating on the basis of sexual orientation or otherwise comply

with general laws.

127

Thus, each piece of the legal regime may be justified in its own terms, but

collectively, the regime creates perverse incentives. Journalism receives no

special protection against general laws for legitimate fear of what the Court

called, in a different First Amendment context, making every citizen “a law

unto himself.”

128

By contrast, dissemination of information, even if false, is

protected for fear of harassment of those expressing unpopular viewpoints.

Taken together, these two principles make it relatively difficult for activist

journalists to uncover the truth about the targets of their dissatisfaction and

relatively easy for them to disseminate falsehoods about those targets.

Although perhaps justified in their separate domains, 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 promulga-

tion 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. Thus, the anti-Planned Parenthood scam may prove to be less

ideological performance art than the harbinger of an age of “truthiness,” as

we will argue below.

125

See supra Part I.A–B. It is not entirely clear whether Chen and Marceau mean their proposal to

cover the application of general laws and doctrines to investigative deceptions. In discussing the

grounds that can be offered for limiting such deceptions, they include a subsection titled “Trespass,”

which identifies property interests as potentially countervailing. Chen & Marceau, supra note 37,

at 1494. That might suggest that Chen and Marceau do indeed mean their proposal to cover such

general laws and doctrines. However, throughout their article, they appear to limit their discussion

to laws (such as ag-gag laws) that specifically target investigative deceptions. See, e.g., id. at 1488,

1490, 1501 (discussing laws that “target” such deceptions), 1507 (concluding the paragraph that

summarizes a proposal addressing “laws regulating” investigative deceptions).

126

See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175 (1996) (tenta-

tively proposing that laws that substantially burden fundamental rights, including speech and press,

ought to be subject to heightened scrutiny even when the infringing law does not specifically target

the right).

127

See generally NELSON TEBBE, RELIGIOUS FREEDOM IN AN EGALITARIAN AGE (2017) (exploring con-

flicts between claims of religious liberty and anti-discrimination laws).

128

Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 885 (1990) (quoting Reynolds v. United

States, 98 U.S. 145, 167 (1878)).

24 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

III. ACTIVIST JOURNALISM, PAST AND PRESENT

Have we entered a new age? Authors who write about the twenty-first-

century rise and implications of citizen journalism often treat the phenome-

non as if it were radically new. For example, commenting breathlessly on

the impact of the digital revolution on journalism, New Yorker staff writer Jill

Lepore wrote: “With our phones in our hands and our eyes on our phones,

each of us is a reporter, each a photographer, unedited and ill judged, chat-

ting, snapping, tweeting, and posting, yikking and yakking. At some point

does each of us become a party of one?”

129

But the link between activism and the media that Lepore observes is far

from new. As sociologist Paul Starr writes, “as remarkable as the recent wave

of innovation has been, it is only the latest phase of a centuries-long process

that has been punctuated by a series of upheavals in communications and

information at least as revolutionary as our own.”

130

Although Daleiden and Mer-

ritt were using the newest tools of technology, they acted in line with a long

tradition of subversive activist journalism, which began with the advent of

cheap printing in the eighteenth century and rose to a crescendo with the

industrialization of journalism and the rise of investigative journalism in the

late nineteenth and early twentieth centuries.

131

Like the current one, these upheavals came not only from technological

breakthroughs but from their interactions with the political contexts in which

they were born. As Starr demonstrates in his book, the media were shaped by

politics from the beginning.

132

Although Starr shows how American policy

made U.S. media a world leader,

133

media everywhere have long been a tool

for political activists. This manifested in Europe early with the diffusion of what

129

Jill Lepore, The Party Crashers: Is the New Populism About the Message or the Medium?, NEW YORKER, Feb.

22, 2016, at 27. Declarations of the revolutionary nature of the new media are not limited to

journalists like Lepore. For example, human rights advocate Eileen Donahoe writes that “[w]e live

in a world where the distinction between online and offline has effectively collapsed . . . The dis-

tinction between ‘online’ and ‘offline’ activity now almost seems quaint.” Eileen Donahoe, So Soft-

ware Has Eaten the World: What Does It Mean for Human Rights, Security and Governance?, JUST SECURITY

(Mar. 18, 2016, 1:24 PM), https://www.justsecurity.org/30046/software-eaten-world-human-

rights-security-governance. Academics are often almost as categorical. For example, Alice Mattoni

claims that activists “engage in a form of ‘native journalism,’ according to which the boundaries

between the news source and the person writing the news dissolve.” Alice Mattoni, Journalism and

Social Movements, in WILEY BLACKWELL ENCYCLOPEDIA OF SOCIAL AND POLITICAL MOVEMENTS

(David Snow ed., 2013).

130

PAUL STARR, THE CREATION OF THE MEDIA: POLITICAL ORIGINS OF MODERN

COMMUNICATIONS 1 (2004) (emphasis added).

131

See infra Part III.A.

132

STARR, supra note 130, at 1–19 (discussing the “constitutive” role of politics for media).

133

See generally id.

Oct. 2017] STINGS AND SCAMS 25

Benedict Anderson called “print-capitalism.”

134

If a man could read in his na-

tional press about how insurgents in another country overthrew their ruler, then

ruler-overthrow became conceivable everywhere.

135

As Anderson writes of the

French Revolution, “[O]nce it had occurred, it entered the accumulating

memory of print . . . . [T]he experience was shaped by millions of printed words

into a ‘concept’ on the printed page, and, in due course, into a model.”

136

A. American Journalism and Activism

When we look back to the eighteenth century, the idea of journalists as

objective reporters looks like a brief twentieth-century interlude in a much

longer story of the inseparability of journalism, activism, and social move-

ments. For example, in 1774 a failed English excise worker named Thomas

Paine stepped off a boat in Philadelphia with a letter of introduction from

Benjamin Franklin to Robert Aiken, a well-known printer in the town.

137

Paine’s ideas were not particularly new or even radical.

138

What made his

impact on history so great was not only his role in two revolutions—the Amer-

ican and the French—but his capacity to merge activism and journalism.

139

Paine arrived in a country that was practically covered in printed papers.

Bernard Bailyn reports that there were thirty-eight newspapers in the Amer-

ican colonies in 1775.

140

As the conflict with Britain heated up, broadsides

appeared everywhere, and even almanacs “carried, in odd corners and oc-

casional columns, a considerable freight of political comment.”

141

It was in the form of political pamphlets that the democratic implications of

print flourished. “Highly flexible, easy to manufacture, and cheap, pamphlets

were printed in the American colonies wherever there were printing presses,

intellectual ambitions and political concerns.”

142

By the time Paine arrived in

134

BENEDICT ANDERSON, IMAGINED COMMUNITIES passim (rev. ed. 2006).

135

Id. at 81 (describing the impact of the American Revolution on France).

136

Id. at 80.

137

Joyce Appleby, Introduction to THOMAS PAINE, COMMON SENSE AND OTHER WRITINGS, at xv–xvi

(George Stade ed., Barnes & Noble Classics 2005).

138

See id. at xxi–xxii (“Paine was not a profound thinker. He was more a vector for the radical theo-

rizing about the origins of government that Thomas Hobbes and John Locke began in the seven-

teenth century.”)

139

See E. J. HOBSBAWM, LABOURING MEN: STUDIES IN THE HISTORY OF LABOUR 2–3 (Weidenfeld

Goldbacks 1968). Paine’s language, much more than that of the more learned essayists who penned

political pamphlets up until his time, resembled that of the Bible. For example, he used biblical

parallels to convince his Bible-reading public that kingship causes wars and that, for the ancient

Hebrews, “it was held sinful to acknowledge any being under that title but the Lord of Hosts.”

THOMAS PAINE, COMMON SENSE 8–9 (Kuklick ed., Cambridge Univ. Press 2012) (1775–76).

140

BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 1 (1967).

141

Id. at 1–2 (describing the role print media played during the rise of the American Revolution).

142

Id. at 4 (explaining why political pamphlets were the most widespread print form at the time).

26 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

America, pamphlet wars were a familiar part of the political landscape.

143

“In the early days of the American republic,” writes Lance Bennett, “the

news was anything but objective.”

144

When the Democratic-Republicans of

Thomas Jefferson campaigned to oust the Federalists of John Adams from

the presidency, they employed the services of a Scottish republican activist

named James Callender, who published a scurrilous diatribe against Adams

in the Examiner and other pro-Jeffersonian essays in the National Magazine to

help Jefferson win the 1800 election.

145

For his trouble, Callender was pros-

ecuted for sedition by the outgoing Adams administration.

146

For much of the nineteenth century, newspapers “were either funded by

or were otherwise sympathetic to particular political parties, interests, or ide-

ologies. People bought a newspaper knowing what its political perspective

was and knowing that political events would be filtered through that perspec-

tive.”

147

Later publishers, like William Randolph Hearst and Joseph Pulitzer,

had looser ties with party machines, but their papers were full of “high-profile

crusades and stunts” intended to attract readers and put forward their polit-

ical viewpoints.

148

Pulitzer’s New York World “combined sensationalism and

storytelling with a crusading liberal reformism and built circulation . . . with

investigations of tenement housing, adulterated food, official misconduct (in-

cluding police brutality), and corporate malfeasance.”

149

The muckraking

journalism that had its apogee in the beginning of the twentieth century with

Upton Sinclair’s The Jungle

150

had its origins in the pages of Hearst’s and Pu-

litzer’s papers.

151

Journalism only began to separate from activism in the new century, as

the population grew—and grew more diverse—and as the economics of the

news business evolved. The norm of objectivity, which was eventually natu-

ralized through journalism schools and the claims of the elite press (e.g., “All

the News That’s Fit to Print”), developed out of the expansion of the market

for news and from its standardization through the wire services.

152

But not

even standardization ended the politicization of the press, which grew out of

143

See id. at 4–5 (highlighting different ways pamphlets were used during the Revolutionary Period).

144

W. LANCE BENNETT, NEWS: THE POLITICS OF ILLUSION 158 (10th ed. 2016).

145

MICHAEL DUREY, “WITH THE HAMMER OF TRUTH”: JAMES THOMSON CALLENDER AND

AMERICA’S EARLY NATIONAL HEROES 117 (1990) (providing an example of subjective news in

early America).

146

Id. at 125–35.

147

BENNETT, supra note 144, at 158.

148

STARR, supra note 130, at 254.

149

Id. at 256.

150

UPTON SINCLAIR, THE JUNGLE (Joslyn T. Pine ed., Dover Thrift Editions 2001) (1906).

151

Sinclair himself likely would not have acknowledged the debt, as his work was highly critical of the

Hearst press. See generally UPTON SINCLAIR, THE BRASS CHECK (1919).

152

BENNETT, supra note 144, at 161.

Oct. 2017] STINGS AND SCAMS 27

the competition for markets. Even the Associated Press, which was a major

force for standardization, was intricately bound up with politics.

153

The con-

nection between journalism and politics in America had profound implica-

tions for the future of social and political movements.

B. Journalism in Movement

Although a movement press was most highly developed in Europe, with its

mass parties and ideologies, the phenomenon was not limited to the old world.

Indeed, in America, a genuine movement press grew out of the agrarian, an-

archist, socialist, and populist movements that arose during the last decades of

the nineteenth century.

154

The agrarian revolt that began in the late 1880s

was archetypical: editors supporting the agrarian cause founded hundreds of

papers throughout the South and West to denounce the railroads and robber

barons and to support William Jennings Bryan’s presidential candidacies.

155

But until recent decades, activist journalism was constrained by the high

costs of traditional newspaper printing and by its static capital establish-

ments. It took the development of electronic communication to liberate ac-

tivists from these constraints. As the audience for digital—and especially for

social—media grew, activist journalism was freed from the ponderous organ-

izations and the norms of objectivity that had previously constrained the

printed press. This change has led to the rapid formation of online newspa-

pers, personal blogs, and audiovisual media to expose the real or invented

defects of political opponents.

156

It has also led to the use of stunts made

explicitly for circulation through the media.

Some of the new activist journalists, like the “Occupy” movement’s Tim

Pool, operate from within movements.

157

Others, like The Intercept’s Glenn

Greenwald, come from a traditional journalism background but embrace the

goals of a movement and occasionally skirt the borders of legality—as he did

in publicizing the Snowden revelations in 2013.

158

Still others embrace what

can be called “the practice of the objective,” in which reaching the goal or

153

In the key election of 1876, the AP’s support for the Republican candidacy of Rutherford B. Hayes

was so overt that Democrats called it “the ‘Hayesociated Press.’” STARR, supra note 130, at 187.

154

Id. at 264.

155

Id.

156

See Martin Johnson et al., The Decline of Daily Newspapers and the Third-Person Effect, 95 SOC. SCI. Q.

1245, 1245–46 (“Daily newspapers have been declining for at least the past decade, with reduced

circulation, advertising revenue, and staffing. Cheaper to produce and easier to distribute, online

news sources now serve much of the surveillance function of traditional newspapers.” (citations

omitted)).

157

ADRIENNE RUSSELL, JOURNALISM AS ACTIVISM: RECODING MEDIA POWER 2 (2016).

158

See generally GLENN GREENWALD, NO PLACE TO HIDE: EDWARD SNOWDEN, THE NSA, AND THE

U.S. SURVEILLANCE STATE (2014).

28 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

objective on your own is the message of the movement.

159

But few of these activist journalists possess the wherewithal to widely dif-

fuse the results of their activities on their own. To do so, they need to de-

velop, or employ, the mechanisms and the professionalism of mass-based so-

cial media, which have the capacity to reach key sectors of the public that

those who carry out the stings wish to reach. And this takes us back to the

legal dilemma that we explored above: that the law appears to punish journalistic

“stings” but offers more protection to the dissemination of falsehoods, that is, to fake news.

The Daleiden and Merritt operation against Planned Parenthood raises

thorny questions of both legality and rights. The First Amendment prohibits

laws “abridging the freedom of speech, or of the press,”

160

and thus, one might

think, today’s radical democratization of journalism poses a conceptual chal-

lenge of identifying “the press.” Yet, as we saw in Part I, American law largely

punts on that issue. Under the existing case law, everyone and no one is the

press. How does the Supreme Court’s indifference to the distinction between

the press and the rest of us interact with the new media landscape?

C. The Public’s “Right to Know” and the Rise of “Truthiness”

The first thing we need to understand about the new technologies is that

they facilitate—but have not produced—the problems that we as citizens

face in the re-integration of journalism and activism. These problems arise

because of the assumption that we have a Right to Know, rather than from

technological innovation alone, and this Right to Know provides incentives

and avenues for the diffusion of information, quasi-information, and outright

lies, all through the same media.

We do not mean to suggest that new technology per se has had no effects.

On the contrary, in some domains—such as police-citizen interactions—the

effects may turn out to be profound. The ubiquity of video cameras in mo-

bile phones transforms what were once swearing contests into public events.

However, the phenomenon that chiefly concerns us here is not the random

citizen who accidentally becomes a journalist because she happens to observe

police brutality. Instead, we are focusing on activists who set out to capture

evidence of (real or imagined) wrongdoing, and then disseminate the evi-

dence to the public. No new technology of capture is needed for this task.

Miniature recorders have existed for decades and are not, in any event,

strictly necessary for undercover activist journalism. After all, Upton Sinclair

simply took notes. What is truly new is a profound change in the cultural

understanding that forms the backdrop for the new technologies of diffusion.

159

RUSSELL, supra note 157, at 137–38, 142.

160

U.S. CONST. amend. I.

Oct. 2017] STINGS AND SCAMS 29

At the country’s founding, there would certainly have been no under-

standing that citizens had the right to know everything that their government

or their fellow citizens did or thought. It has been more than a century since

Louis Brandeis opined that “sunlight is said to be the best of disinfectants,”

161

but it has been a mere half-century since the enactment of the federal Free-

dom of Information Act (FOIA), which is emblematic of the modern cultural

and legal expectation of the Right to Know. “Things widely taken for

granted since the 1970s,” writes Michael Schudson, “from doctors’ willing-

ness to inform dying patients they are dying to unit pricing in the supermar-

ket and nutritional information listed on a package label, are developments

of the 1960s and after.”

162

Reversing the diffusion of information by activist journalists would in-

volve curtailing not only the use of technology but what has become a “cul-

tural right to know.”

163

It is that “cultural right to know” that animates the

citizen journalism of today and that galvanized activists like Daleiden and

Merritt to insinuate themselves into Planned Parenthood and utilize a rela-

tively simple technology to “expose” the organization’s supposed sins.

But “the public” in the “public’s right to know” is an abstraction. Dalei-

den and Merritt were not speaking to “the public,” but to an already-con-

vinced slice of the public through “movement halfway-houses” that were will-

ing to broadcast and authenticate their message.

164

In scamming Planned

Parenthood, these new media outlets were projecting—through a lie—what

they “knew to be true”: that Planned Parenthood is an inherently evil organ-

ization. They made use of a network of online “news” sources, the Internet-

fortified rumor mill, and, eventually, the legacy press which gave them the

publicity they craved, even if it was not always favorable. Their scam trav-

eled the same byways as other fake news.

As we have seen, the commingling of activism and journalism is nothing

new in American history. What is new is the network of radio talk shows,

161

Louis D. Brandeis, What Publicity Can Do, HARPER’S WEEKLY, Dec. 20, 1913, at 10.

162

SCHUDSON, supra note 47, at 14.

163

Id. at 7.

164

Sociologist Aldon Morris coined the term “movement halfway-house” to refer to “an established

group or organization that is only partially integrated into the larger society because its participants

are actively involved in efforts to bring about a desired change in society.” ALDON D. MORRIS,

THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT 139 (1984). Although “their relative isolation

from the larger society” initially limits movement halfway houses’ ability to “disseminate their

views” society-wide, these institutions enable activists to “develop a battery of social change re-

sources.” Id. at 139–40. In developing the concept of the halfway house in the context of the civil

rights movement, Morris illustrates its role in forming a generation of civil rights militants and

eventually diffusing the movement’s message to a broader public. See id. at 139–73. Needless to

say, movement halfway houses may operate anywhere on the political spectrum.

30 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1

blogs, printed publications, and foundations that sit between citizen journal-

ists like Daleiden and Merritt and the audiences for their productions. That

is the key innovation in early twenty-first century activist journalism, and not

the technology itself or the willingness of activist journalists to play fast and

loose with the truth. It is these nodes of information transmission that au-

thoritatively diffuse information which—on its own—might have little resili-

ence and even less persistence.

Remember how widely the “news” that Barack Obama was not a U.S.-

born citizen diffused? That soundbite might have seemed preposterous when

it issued from the mouths of Donald Trump and his ilk, a “meme” made for

the moment. Yet in 2016, majorities of some sectors of the public still be-

lieved it.

165

They believed it not because it issued from the mouths of “in-

formants” a near-decade ago, nor because it had become more credible, but

because it had been reinforced by repetition by the authoritative movement

halfway-houses to which these citizens attend.

CONCLUSION

In this Article, we have focused on an unusual incident—the Daleiden-

Merritt sting/scam of Planned Parenthood—in order to raise broader ques-

tions about American democracy. We broadened the field of inquiry from a

single form of collective action to show its general relevance.

In the Introduction, we argued that although the Planned Parenthood

sting/scam codes as politically right-wing, the story is relevant to a broad

range of activists: those who seek to expose animal abuse, environmental

damage, exploitation of workers, and other evils. Due to legal, social, and

technological factors, this kind of activist journalism is likely to become ever

more common in the coming years.

In Part I, we looked at how the law addresses what seems to be the key

puzzle raised by activist journalism: who can claim the protection for free-

dom of the press? We saw that while First Amendment cases give some shel-

ter to journalistic activities, they provide no special rights to journalists as

such. That answer, which dates to pre-Internet-era cases, may seem presci-

165

See Josh Clinton & Carrie Roush, Poll: Persistent Partisan Divide Over ‘Birther’ Question, NBC NEWS (Aug.

10, 2016, 2:19 PM), https://www.nbcnews.com/politics/2016-election/poll-persistent-partisan-

divide-over-birther-question-n627446 (finding that 41 percent of Republicans disagreed with the

statement “Barack Obama was born in the United States, while only 27 percent agreed, with the

balance neither agreeing nor disagreeing). For a relatively recent version of this canard, which

pretends to have Obama himself admitting to not being a citizen, see David Mikkelson, Obama

Admits Not Being Born in Hawaii, SNOPES: FACT CHECK, http://www.snopes.com/poli-

tics/obama/birthers/notborn.asp (last updated June 27, 2016) (demonstrating that “[a] video clip

showing Barack Obama supposedly acknowledging that he is not a natural-born U.S. citizen was

assembled as a joke”).

Oct. 2017] STINGS AND SCAMS 31

ent, but it comes with an extremely important limitation. Although laws spe-

cifically targeting journalists or journalism are invalid, well-informed govern-

ment officials and private actors can use general-purpose laws involving such

mundane matters as property and contract to shield potential or perceived

wrongdoers from the prying eyes of activists and journalists.

In Part II, we juxtaposed the slim protection given to activists and jour-

nalists seeking to uncover wrongdoing with the substantial protection given

to those who disseminate misleading and even outright false claims. The law

leaves genuine stings vulnerable, while protecting scams. This juxtaposition

may have developed organically out of America’s legal history, but in the

technical and political conditions of the early twenty-first century, it is having

perverse effects.

In Part III, we showed that the combination of activism with journalism

is nothing new, and, indeed, that the norm of “objective” journalism was

probably an exception to a long history of social movement activists using the

media to advance their goals. The novelty of these interactions lies not in the

intrusion by activists into other people’s premises to produce falsified findings,

or in their diffusion to a wider public through electronic media, but in the

combination of the two. That combination is facilitated by employment of

simple forms of technology and the availability of a broad spectrum of “move-

ment halfway-houses” to diffuse the “information” to a broader public. In

the name of “the public’s right to know,” these agents make the scams of ac-

tivists far more rapidly available to publics who are prepared to accept “truth-

iness” in place of truth so long as it jibes with their ideological assumptions.

Observers of how Donald Trump and his supporters play fast and loose

with the truth have only lately begun to worry about fake news, but the phe-

nomenon is broader and has deeper roots. Daleiden and Merritt’s

sting/scam was an extreme form of the performance journalism that new

technologies have helped, if not to create, then to diffuse. Thus, it may not

be far-fetched to wonder whether significant sectors of the public have be-

come so taken with performance journalism that they mistake both the in-

ventions of a pair of anti-abortion activists and the truthiness of a Donald

Trump for reality.

Meanwhile, even as fake news may have helped elect Trump, some of the

same forces that fueled the rise of scams will make good-faith stings by jour-

nalists and activists difficult to accomplish, just at the moment when progres-

sives would benefit from launching stings of their own. Trump’s disregard

for longstanding norms requiring presidential candidates to disclose their tax

returns and presidents to divest assets that pose a substantial risk of conflicts

of interest indicate that his administration is opaque even by the standards

set in the recent era of over-classification. Fearless investigative reporting

will be needed more than ever; yet, as we have shown, law, technology, and

culture will likely give us more and more fake news instead.

32 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1