The Daleiden Dilemma

California Attorney General Zavier Becarra last week slapped 15 felony charges on David Daleiden and Sandra Merritt for secretly recording conversations in their undercover video operation against Planned Parenthood.

Were the charges politically motivated?

Ha! Yes. Yes they were.

Have the videos exposed the abortion giant as a baby-part monger staffed by people who cavalierly describe horrific violence against tiny human beings? Have the videos led to investigations and hearings? Have they fueled the push to defund Planned Parenthood federally? Have they shaken the mostly uncritical public support it enjoyed for decades?

No question about it.

And is this whole affair an attempt by Planned Parenthood and its cronies to trample on Daleiden and Merritt’s First Amendment rights?

Let’s think about that one for a second.

In the sense that Planned Parenthood is trying to silence and intimidate its critics, then yes, this is a free-speech issue. Daleiden told the Washington Post the videos were “citizen journalism par excellence.” His press release in response to the charges said, “We look forward to showing the entire world what is on our yet-unreleased video tapes of Planned Parenthood’s criminal baby body parts enterprise, in vindication of the First Amendment rights of all.”

But legally it’s at most an indirect attack on free speech. The lawsuit targets not what Daleiden and Merritt said, but rather the methods they used to gather their information. “The right to privacy is a cornerstone of California’s Constitution,” Becarra said in announcing the charges, “and a right that is foundational in a free democratic society.”

That much he got right. Undercover sting operations may sometimes be justifiable, but undercover reporters are not just “doing journalism.” Privacy matters, and there is no First Amendment right to gather information.

In the 20th century, a string of journalists and lawyers attempted to convince the Supreme Court that the First Amendment implies such a right. This makes a sort of intuitive sense; what use is it to be able to speak, and thereby criticize the government, if the government can prevent you from gathering any information to talk about in the first place?

Those who argue for a First Amendment right to gather information take it a step further, however. The idea is that American courts should value highly the “free flow of information” in society. Gathering information is a critical part of ensuring that this free flow continues, and therefore the courts should value gathering information just as highly as the right to speak or publish.

Journalists themselves cheerlead this effort on the grounds that it enhances their ability to find and publish the truth. The fact that it would make journalists less accountable is, I’m sure, completely irrelevant, and journalists would never abuse this new power.

A handful of federal and state courts have asserted a First Amendment-based right to gather information in cases involving, for example, journalists’ attempts to conduct exit polls, gain access to government meetings, and view executions. But most courts, including the Supreme Court, have so far declined to read an explicit “right to gather information” into the First Amendment, and for excellent reasons.

It’s perhaps better to illustrate the pitfalls than explain them. In 1998 police arrested a DC man for possession of child pornography. He said he was a journalist gathering material for a news story. It might even have been true, but the courts rejected his First Amendment claim that he should therefore be exempt from the criminal statute. In 2000 a Kentucky Law Journal article about this case argued that child porn is an important social issue and we need real investigative journalism to uncover the truth: “Reporting on Child Pornography: A First Amendment Defense for Viewing Illegal Images?”

If the courts head down that road, prepare to welcome the Child Porn Investigators’ Information Network. And where will it end? What happens, for example, if a First Amendment right to gather information clashes with another person’s right to privacy, property, or a fair trial? So far the courts have declined to protect journalists who commit fraud or trespass while reporting. But a constitutional right to gather information would give journalists—or anyone who could convince a court they intended to disseminate the information they’d collected—First Amendment grounds for arguing that they are in that context exempt from criminal and civil prosecution.

A constitutional right to gather information could open to the door to a world of hurt. Imagine Christian college officials dragged into some Bureau of Labor’s kangaroo court to find secretly recorded tapes of themselves insisting they’ll never hire a transgender applicant for a faculty position. Undermine the criminal or civil deterrents to invading privacy, committing trespass, and so on, and people will do those things to further their agendas. And would a watered-down version of religious liberty, likely all that will soon be left, be enough to protect the politically incorrect from such attacks? It seems unlikely.

Daleiden’s case won’t generate a First Amendment right to gather information, and I sincerely hope that he and Merritt are acquitted. Their chances are probably pretty good; California law prohibits secretly recording conversations that are private, but the courts have been reluctant to call conversations held in restaurants and conference gatherings private. As long as those hours and hours of videos that state investigators seized don’t contain evidence that Daleiden and Merritt recorded conversations in contexts where the speakers had a “reasonable expectation of privacy,” they likely have a solid defense.

Conservative media have been buzzing for the last week with mostly uncritical support of Daleiden. But those, like me, who are enthusiastic about exposing Planned Parenthood must not undervalue privacy; nor should we pretend that using deception to gather information doesn’t raise some serious ethical questions.

If undercover reporting isn’t morally justified in Daleiden’s case it can’t ever be justified, but isn’t it unseemly on some level when journalists use falsehoods to promote truth? Those who fail to recognize the dilemma here are unwittingly aligning themselves with a pernicious “ends justify the means” approach in journalistic and legal circles.

This is what happens when you use morally ambiguous methods to achieve worthy goals—things get messy. If we conservatives applaud these tactics when they’re used to gather information against our cultural opponents, it’s only a matter of time before they are turned back on us.

Les Sillars teaches journalism at Patrick Henry College. His book, Intended for Evil: A Survivor’s Story of Love, Faith, and Courage in the Cambodian Killing Fields, came out last fall.

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