Journal of Free Speech Law: "Investigative Deception Across Social Contexts," by Prof. Alan Chen

The first of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the Introduction:

People lie to gain access to private property in a surprising variety of contexts. Civil rights "testers" create fake identities and pose as potential buyers or renters to investigate race discrimination by real estate agents and landlords. Union activists secure jobs at nonunion workplaces so they can organize the company's workers. Law enforcement agents pose as drug dealers to gain access to a narcotics warehouse. An investigative journalist infiltrates a white nationalist group so she can write a story about the group's philosophy and propensity for racially motivated violence. A private investigator working with a seniors' advocacy organization gets a job at a local nursing home to document elder abuse. In prior work, I have described these practices as "investigative deceptions," "intentional, affirmative misrepresentations or omissions about one's political or journalistic affiliations, educational backgrounds, or research, reportorial, or political motives to facilitate gaining access to truthful information on matters of substantial public concern."

Each of these situations bears important similarities. First, they all involve the intentional and material misrepresentation of the speakers' true identities, motives, and actual employers or sponsors. Second, the lies are told with the intent of deceiving the target of the investigation and the goal of gaining entry to private spaces and proximity to people who would not consent to such access if they knew the truth. Third, the access achieved through these lies potentially implicates some common law rights. Fourth, all of these liars seek a benefit not for themselves personally but for a greater social good. The information they discover will be used to enforce laws, facilitate political association, inform public discourse, and advance legal and social reforms. And finally, the persons deceived in each case would strongly prefer that the information that comes to light from these investigations not be publicly disclosed. In a sense, all of these lies could be categorized as a form of fraud.

The similarities among these types of investigate deceptions do not, however, carry over to the way that the law, ethics, and perhaps society view them. Civil rights testers, undercover police officers, and union salts are all widely accepted, legally permissible forms of investigative deception. However, much of the journalism profession disputes the ethics of undercover news investigations, and tort claims have been brought against news outlets and reporters for conducting such investigations. The legality of undercover investigations by advocacy groups has also been questioned. Some states have criminalized the investigative deceptions used by animal rights organizations, while others have enacted statutes creating new tort claims against undercover investigators; although some courts have declared those laws to violate the First Amendment, the doctrine is still evolving.

This essay explores the different contexts in which investigative deceptions are employed and seeks to understand why the lawfulness and acceptability of these lies are so divergent.

Why, for example, are some types of investigative lies both legally and ethically acceptable and other comparable lies condemned? Across all of these contexts, there is an implicit, or sometimes explicit, balancing of interests. Are the harms caused by investigative deceptions outweighed by the greater public good that they achieve? Balancing may inform that decision, but the larger question is whether American law, courts, and society understand investigative deceptions to be a desirable practice within our social order. In carrying out that balancing, we might unify our understanding of these investigations as a valuable social practice.

Part I of this essay provides a descriptive account of investigative deceptions in five distinct contexts, while also surveying the legal (and sometimes ethical) infrastructure through which these deceptions are constructed, evaluated, and sometimes contested. Part II then seeks to explain that understanding the similarities in these investigative deceptions as desirable social practices helps inform the First Amendment doctrine as applied to government attempts to restrict or prohibit them.