Intentional falsehoods often frustrate the purposes of the Free Speech Clause. They can—and often do—undermine a healthy democracy, interfere with enlightenment and the distribution of knowledge, and frustrate listeners’ autonomous choices. At the same time, however, laws prohibiting lies often trigger First Amendment concern because of the government’s dangerous potential for regulatory abuse.
In Truth and Transparency, Alan Chen and Justin Marceau explore a particularly fascinating slice of deception: lies concealing the speaker’s identity as a journalist or other undercover investigator. We can understand these as lies about the source of speech—in other words, lies about who’s talking to you. And because listeners find it so helpful to know the source of expression when assessing its credibility or value, law often forbids lies about the source of speech. Consider, for example, laws requiring disclosure of the identities of those creating and producing public campaign advertisements—laws upheld by the Supreme Court in the less famous part of Citizens United v. Federal Election Commission. Or laws forbidding folks from pretending to be law enforcement officers or other government officials.
Chen and Marceau nevertheless conclude that in the context of undercover investigations seeking to discover information in the public’s interest to know, lies about the source of speech deserve First Amendment protection. These, they assert, are the unusual lies that actually advance core First Amendment values by exposing the behavior of powerful actors, both governmental and nongovernmental.
Chen and Marceau make a compelling case for why information-gathering is a core First Amendment activity and why deception to gain access to information that’s in the public’s interest to know should be protected by the First Amendment. Examples of laws that restrict such deception—and thus, in their view, violate the First Amendment—include some states’ “ag-gag” statutes that prohibit individuals from seeking access to an agricultural facility through deception. Think, for instance, of an animal rights activist seeking employment at a meatpacking plant to observe and record animals’ treatment, while concealing their reason for seeking access to the facility (for examples, see here and here).
In explaining why these laws might run afoul of the First Amendment, Chen and Marceau point to the Supreme Court’s decision in United States v. Alvarez, where a plurality suggested that lies are protected by the First Amendment unless and until they inflict legally cognizable harm.
The Alvarez plurality didn’t define “legally cognizable” harm, instead offering some illustrative examples. These include the monetary harm inflicted by fraud, the reputational harm imposed by defamatory falsehoods, and the harm to the administration of justice caused by perjury. In contrast, the Alvarez plurality concluded that an individual’s lie about receiving the Congressional Medal of Honor (in violation of federal law criminalizing such lies) to boost his audience’s opinion of him inflicted no such legally cognizable harm. The plurality felt that the disrespect of being lied to—even if it shapes the audience’s decision about whether to listen to this person or spend time with him—is not harm sufficient to strip that falsehood of First Amendment protection given the prospect of governmental overreach.
What the targets of undercover investigations really complain about, Chen and Marceau explain, is their conduct’s exposure to public scrutiny and criticism. And that, the authors assert, is not a legally cognizable harm for First Amendment purposes. Indeed, unlike the lies at issue in Alvarez, deception that reveals matters of public concern can further key First Amendment values.
The constitutional issues triggered by undercover investigations also include whether and when the First Amendment protects the recording of information accessed through deception. And so Chen and Marceau also consider legal bans on recording certain activities or certain places. As we see, the story of undercover investigations is not only a story of law but also of technology. More specifically, it’s a story about the implications of 21st-century expressive technologies—like drones, and the tiny cameras and recording devices that we carry on our persons all the time—for First Amendment doctrine developed to address very different 20th century technologies. (For additional perspectives, see here and here).
Most compelling is the case for First Amendment protection for public recording of public officials engaged in public activities (known as “public-cubed” recording). Think, for instance, how little we would have known about what happened to George Floyd without the cell phone recording of his death. Darnella Frazier, the bystander who recorded Mr. Floyd’s killing, received a Pulitzer Prize for this.
Chen and Marceau continue on to argue—more provocatively, as they acknowledge—that the First Amendment should also be understood to protect even nonconsensual recordings on private property, so long as the recording addresses matters of public concern, seeks to serve journalistic or other truth-seeking functions, and the recorder was not trespassing (as would be the case for example, of an employee at a workplace or an invited guest). Under these circumstances, they assert, the First Amendment value of gathering and recording such information to inform the public generally justifies its protection from legal restriction.
To be sure, Chen and Marceau recognize that undercover investigations more generally raise legitimate concerns about invasions of individuals’ privacy. They rely on “public concern” as a key limiting principle that explains whether and when undercover investigations have First Amendment value—and also whether and when those investigations threaten unacceptable moral harm.
More specifically, they assert that undercover investigations “should be conducted only to gather information that is of public concern” and not, for example, to advance “a private vendetta or prurient interest in spying on another’s most intimate private moments.” “[M]isconduct, illegality, or wrongdoing” by powerful institutions and individuals is almost always in the public’s interest to know. Other behaviors likely present closer calls, and some may find “public concern” to have little value as a limiting principle given the Supreme Court’s observation that “the boundaries of the public concern test are not well defined.” Even so, the Court has often relied on that test, however unclear, to do important doctrinal work in defining the contours of defamation law, the free speech protections available (or not) to public employees, and other constitutional rights and responsibilities.
Much of Truth and Transparency addresses the First Amendment issues raised by undercover investigators’ lies of various sorts. But there’s more.
As Chen and Marceau relate, the history of undercover investigations is also a history of newsgathering and of journalism. Their many examples include the mid-1800s work of undercover journalists and abolitionists to observe and document the horrors of enslavement for publication to northern readers. And Nellie Bly’s late-19th-century undercover work to reveal the awful conditions experienced by women housed in what were then called insane asylums. And the work of 1970s Chicago- Sun Times reporters who opened and operated a tavern on Chicago’s south side to learn about and expose the corruption endemic to the city’s health and safety inspections.
Especially interesting, in my view, is the book’s discussion of ambivalence towards undercover investigations even within the field of journalism, an ambivalence that reveals a complicated view of undercover investigators as both heroes and villains.
For example, Chen and Marceau explain how the Chicago Sun-Times efforts were nominated, but ultimately passed over, for the Pulitzer Prize due to controversy over the journalists’ misrepresentation of their identities (and even though other Pulitzer prize winners had also engaged in deception).
As Chen and Marceau show us, we can still see this ambivalence in some contemporary media organizations’ ethical standards. For example, they describe how the New York Times requires its journalists to disclose their identities to the people they cover (except for its restaurant critics, who can make reservations under fake names). Its policy also generally prohibits secret recordings even in jurisdictions that permit such recordings—except in extremely unusual circumstances where top management agrees that secret recordings are warranted.
For those interested in ethics and moral philosophy, the book explores various perspectives for considering the moral rightness or wrongness of undercover investigations that rely on deception. Such deception raises concerns about the autonomy or dignitary harms they may inflict upon their individual targets. So too do they trigger concerns about more collective harms if such deception undercuts our sense of a duty to be authentic in our communications with others. Chen and Marceau acknowledge the competing ethical frameworks for considering these concerns. Ultimately, they advocate a utilitarian approach to this question, concluding that the collective value of undercover investigations to reveal important information to the public outweighs their costs.
Finally, the book details the authors’ original empirical public opinion research to assess contemporary public attitudes about undercover investigations, in hopes of measuring our intuitions about the moral and instrumental costs and benefits of undercover investigators’ deception. I confess that I was surprised by what they discovered. First, they found considerable public support, regardless of political party affiliation, for the general idea of undercover investigations that include deception. And second, they found that the public’s support rose still higher when asked about specific applications of undercover investigations (for instance, to agricultural facilities or to elected officials) rather than about undercover investigations in the abstract. (The single exception to this trend? Chen and Marceau found that public support for undercover investigations did not rise when those surveyed were specifically asked for their reactions to undercover investigations of abortion providers.)
For those interested in constitutional law, Truth and Transparency challenges us to reconsider when deception does—and doesn’t—contribute to our understanding of the truth and thus when lies do—and don’t—warrant First Amendment protection. And all readers can find plenty to admire in the book’s skillful resort to history, ethics, technology, and social science to shed light on the paradoxical, and often provocative, practice of undercover investigations.
