Essay on asks: Should journalists who go undercover doing research be worried?

Yes, this is a post about legal issues linked to the Planned Parenthood videos. But that is not where I want to start.

If you followed the twisting legal arguments surrounding the Westboro Baptist Church protests -- especially the horrible demonstrations at the funerals of military veterans -- you know that most of the headlines focused on freedom of speech.

However, journalists had a lot at stake in this fight, too (whether they felt comfortable about that or not). Why is that? Here is how I described the crucial press-freedom issue in a post -- "Why journalists love Westboro Baptist" -- back in 2010. I asked readers to glance at the coverage of Westboro's arguments at the U.S. Supreme Court and:

Then answer these questions. In addition to telling the story of the grieving family, which is essential, does the report in your local news source tell you (a) that the protests were moved to another location that was not in view of the church at which the funeral was held and that mourners did not need to pass the demonstration? Then, (b) does it note that the grieving father's only viewing of these hateful, hellish demonstrations took place when he viewed news media reports or read materials posted on the church's website? Those facts are at the heart of this case, when you are looking at the legal arguments from a secular, legal, even journalistic point of view. This is why so many mainstream news organizations are backing the church.

In other words, when push came to shove journalists had to defend their own right to cover these hateful demonstrations. People who thought of themselves as "liberals" kept shooting at Westboro and hitting the First Amendment, instead. As a statement at the Reporters Committee for Freedom of the Press put it, in 2011:

Noting that even the most repugnant speech must be afforded the same protection as any other statement, the Reporters Committee for Freedom of the Press was pleased by today’s U.S. Supreme Court decision upholding a church’s First Amendment right to protest near military funerals.
"These were by no means sympathetic defendants, but the Court upheld the important principle that speech on matters of public concern must be protected from tort liability if the First Amendment's guarantees are to mean anything," according to Gregg Leslie, legal defense director of the Reporters Committee. "While many people would want to see these protests restricted, a holding against the church members would have threatened a great deal of public debate on controversial topics if any listeners could show they were personally distressed to hear unpleasant speech."

This brings me to the celebrations in normally liberal quarters about the recent decision to legally sock it to the independent journalists/activists who shot all those undercover videos of conversations with key Planned Parenthood personnel and leaders. For a perfect example of the reactions to the indictments by the entertainment-news complex, see the Seth Meyers video at the top of this post.

However, you had to wonder: Would the cultural and legal left have been as quick to cheer indictments against people who went undercover to ask tough inside, oh, a nuclear power station, a church counseling program for LGBT believers who want to change their sex lives or even, let's say, a crisis pregnancy center?

The flip side of that is obvious. Would any mainstream media professionals or experts in their brain trusts have second thoughts?

Well, there was this. Journalism historian Marvin Olasky, a strong voice on the cultural right, cheered the following essay run by CNN. It was written by law professors Sherry F. Colb and Michael Dorf of Cornell University. Both stress that they are pro-abortion-rights and strong defenders of Planned Parenthood.

You are going to want to read all of this if, like me, you are pretty radical in your defense of the whole First Amendment. But here are one or two crucial chunks:

It remains to be seen whether David Daleiden, director of the pro-life Center for Medical Progress, and Sandra Merritt, a center employee, have committed serious crimes. Because grand jury proceedings are secret, we do not yet know the precise nature of the evidence against them.
However, it appears the charges arise entirely out of their efforts to deceive Planned Parenthood officials in order to gain access. The felony charge of tampering with government records relates to their alleged use of false IDs, and the misdemeanor charge of attempting to buy fetal remains seemingly overlooks the fact that Daleiden and Merritt were only posing as buyers to expose what they believed was illegal conduct by others.
Whatever the precise facts of this case prove to be, the prosecution has broader implications, and not just for abortion and anti-abortion speech. Undercover exposés play a vital role in informing the American public of important facts that would otherwise remain hidden.

After citing some historical examples of this kind of muckraking, in the best sense of the word, they add:

To be sure, legislators and judges have good reason to tread carefully in recognizing a journalist's right of access to private property. In the age of Facebook and YouTube, anyone with a mobile phone can plausibly claim to be a citizen journalist.
Accordingly, any right of undercover access would need to be limited to matters of genuine public concern, lest snoops posing as door-to-door salespeople and housekeepers violate legitimate interests in privacy. Even journalists or activists investigating a story in which the public has a real interest should not be given carte blanche to expose truly private facts, such as the identity or medical history of Planned Parenthood patients.
Thus, the law can legitimately circumscribe undercover investigations. For example, the Center for Medical Progress could possibly be held civilly liable for misleading editing of the Planned Parenthood videos. But the criminal prosecution of Daleiden and Merritt, even if they did break the law, could chill undercover journalists and activists everywhere.

Has anyone seen other examples of liberals worried that this move against undercover journalism might be part of an illiberal trend? Would the same action have been taken against independent journalists on the religious and cultural left?

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