If you were a lawyer representing The Heartland Institute and you were trying to figure out a way to sue this guy, you’d go through the list of available causes of action and see if you could come up with a creative theory with which to do that, and you may or may not be able to fit your square peg into the round hole with one or another of these legal claims. The only other thing I’d say is that if you find such a peg, and your claim survives preliminary motions in court and gets to trial, as a practical matter, the fact that there was misrepresentation is more likely than not to make the jury angry.
On the other hand, a jury might also decide to let a news organization that used deceptive tactics to obtain private documents under false pretenses off the hook if it deemed that their disclosure served the public interest, said the University of Minnesota’s Kirtley. “Jury nullification does happen,” she said.
In a slightly different context, for instance, in 2008, a British jury surprised many people when it accepted a “lawful-excuse” defense from Greenpeace activists who caused property damage by defacing a coal-plant in the interest of averting even greater damage from climate change.
Ultimately, then, media outlets must weigh the potential legal liabilities of using deceptive tactics to obtain information against the value of that information. But they should never intentionally break the law, said New York University’s Brooke Kroeger, author of the forthcoming book Undercover Reporting: The Truth About Deception, who has argued that journalists should not dismiss the value of covert strategies. “That’s pretty simple,” she said.
There’s a wide range of opinion about which covert strategies are acceptable and which are not. The Society of Professional Journalists’s (SPJ) code of ethics leaves some room for “surreptitious methods of gathering information when traditional open methods will not yield information vital to the public,” adding that, “use of such methods should be explained as a part of the story.” The New York Times’ guidelines say that reporters need not “disclose their identity to people they cover,” but state unequivocally, “Those working for us as journalists may not pose as anyone they are not.”
Kroeger’s view jibes with that of SPJ. After determining whether a clandestine strategy is legal, she said, the next questions are whether the information is important enough to justify the deceit, and whether a reporter has exhausted all other means of getting it. In both cases, however, the bar should be pretty high.
In 2005, for instance, the Spokane Spokesman-Review revealed a history of sexual misconduct by then-mayor Jim West in part by hiring a forensic computer expert to anonymously engage West in online chats posing as a young man. “Under ordinary circumstances, the newspaper would not use a fictional scenario in pursuit of a news story,” the paper’s editor explained in a note to readers published alongside its exposé. “But the seriousness of the allegations and the need for specific computer forensic skills overrode our general reluctance.”
A number of journalists and pundits have argued that the Heartland documents obtained by Gleick did not reveal anything important enough to validate his deception. In terms of the individuals and organizations, from General Motors to Microsoft, that have provided financial support to Heartland, that might be true. But revelations about the misleading global warming curriculum for K-12 schools, about allegations of partisan political activities that might amount a violation of federal tax law governing nonprofit groups, and about potentially improper payments the institute made to an employee of the Interior Department come closer to the mark.
Whether or not Gleick, or a journalist in his position, could have obtained the documents without using deception is certainly a matter for debate. It’s unlikely the group would have shared its fundraising plan or budget with the press, but, for instance, it’s conceivable that a reporter could have convinced an actual whistleblower within the organization to give him the documents. It’s also conceivable that Heartland would have discussed the school curriculum, which it presumably planned to tout at some point anyway.
It’s hard to imagine, then, that after answering the three big questions about deception—Is it legal? Questionable. Is it worth it? Questionable. Is there another way? Probably.—that a news outlet would have acted as Gleick did.