Sherry F. Colb is professor of law and Charles Evans Hughes Scholar at Cornell University. Michael C. Dorf is Robert S. Stevens Professor of Law at Cornell University. They are the co-authors of “Beating Hearts: Abortion and Animal Rights.”
Sherry Colb, Michael Dorf: Indictments of video makers in Planned Parenthood case could have chilling effect on undercover journalism
They say while the two were self-styled "citizen journalists" their implication raises questions about laws targeting free speech
Supporters of women’s reproductive health likely cheered the news. A grand jury in Harris County, Texas, investigating whether Planned Parenthood officials broke the law by selling fetal body parts not only cleared the officials of wrongdoing, but also, in a stunning act of legal jujitsu, indicted two pro-life activists who created the video that led to the grand jury investigation in the first place.
We are pro-choice, and we support the important work of Planned Parenthood, but we find the prosecution of these citizen journalists, however self-styled, deeply disturbing.
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.
For example, Upton Sinclair’s muckraking 1906 novel “The Jungle” was based on his incognito work in the Chicago meatpacking industry. Timothy Pachirat’s more recent “Every Twelve Seconds” shows the impact of a modern slaughterhouse on the workers and animals unlucky enough to find themselves in its confines. Unfortunately, the courts have not consistently protected undercover reporting.
Animal rights activists who gain access to farms, slaughterhouses and laboratories by disguising their true intent may face criminal charges. In a carefully reasoned opinion last August, a federal district judge invalidated Idaho’s “ag-gag” law on First Amendment grounds, but the state has appealed, and the ultimate outcome remains uncertain.
Although the Supreme Court recently affirmed that the government may not target unpopular speech even if it is false, the leading federal appeals court case rejects a general First Amendment right of journalists to use deception to gain access to private property.
In so doing, that case follows a troubling pattern in American constitutional jurisprudence. Ag-gag and other laws that specifically target speech based on its content are invalid, but general laws can be applied to stifle reporting without running afoul of the Constitution as construed by the Supreme Court. The justices have repeatedly ruled that, despite the express protection in the First Amendment for freedom of the press, reporters and other investigators must follow the same rules as everyone else.
For example, in a landmark 1972 ruling, the high court held that the First Amendment does not entitle a journalist to shield confidential sources. Although nearly all states provide some protection for a reporter-source privilege, Congress has repeatedly rejected a federal privilege.
As a consequence, reporters can, and sometimes do, go to jail as the price of shielding their sources. The Planned Parenthood case reveals that activists — and journalists — might also have to go to prison for undercover reporting if they violate any laws to gain access to the targets of their investigation.
Consequently, the public fails to learn about some important matters. Whistleblower statutes provide a modicum of protection for insiders who expose wrongdoing, but the risks to career and reputation frequently prevent those in the know from coming forward.
Moreover, as evidenced by the fate of high-profile whistleblowers like Edward Snowden, statutory protections are incomplete at best. We need journalists and activists to investigate. With the Supreme Court seemingly unwilling to protect undercover investigators against general criminal laws, the job of protecting free speech would appear to fall to legislators and state court judges.
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.
To reiterate, we decry the national campaign of defamation that Daleiden and his political allies have unleashed against Planned Parenthood. But we also oppose efforts to criminalize undercover investigations, regardless of the investigators’ ultimate motives.
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