OPINION: McCaskill’s Own Fake Bomb — Her Attack On Investigative Journalism

Charles J. Glasser, Jr., Esq. | Professor, Media Ethics and Law, NYU

Fake or non-functioning bombs (as well as potentially operable ones) being sent to newsrooms are at the very least threatening, intimidating, and of course, just plain wrong.

As of this writing not enough hard factual information is known about the whacko who sent them to CNN as well as a plethora of Democratic Party figureheads.

At the same time there is an equally insidious political movement that represents a clear and present danger to investigative journalism. Senator Claire McCaskill (D.-Mo.) has demanded a Special Prosecutor to investigate the use of undercover or hidden camera techniques to address matters of indubitable public concern.

Sadly, the media industry has for the most part ignored this story and the movement to punish or even squelch speech that they might find politically inconvenient.

This, despite the fact that major media outfits have often — and quite rightly — used the exact same techniques which McCaskill claims should be subjected to a Benghazi-style probe.

McCaskill’s Real Target: James O’Keefe

The Washington Free Beacon has done a pretty good job of explaining the back story behind McCaskill’s desire to turn back the clock on well-established First Amendment principles.

It all began when Project Veritas, run by the notorious James O’Keefe, began to release hidden camera footage of McCaskill’s campaign early this month.

The videos of McCaskill and some of her staffers show how McCaskill may be deceiving voters by hiding her real views on hot button issues such as impeachment, gun control and abortion. (The campaign quickly responded by putting up notices at its events banning individuals who intend to record.)

The Kansas City Star describes O’Keefe’s organization as known for its “sting” operations against Democrats and media organizations. He has been criticized for selectively editing videos to misrepresent the context of conversations and the subjects’ responses.

In 2010, as a result of a failed undercover action targeting then-Democratic U.S. Sen. Mary Landrieu, O’Keefe pleaded guilty to entering federal property under false pretenses. He received three years’ probation, a fine of $1,500 and 100 hours of community service. He came to prominence after exposing ACORN, the liberal community organizing behemoth that was defunded after he and Hannah Giles posed as a pimp and prostitute and secretly videotaped employees advising them how to shelter an off-the-books brothel.

It’s pretty clear why McCaskill is upset.

In one video, a McCaskill staffer says that the senator downplays her support for gun control. Another staffer suggests she is downplaying her support from former President Barack Obama. In another video, McCaskill is accused of trying to hide her support from Planned Parenthood. Fairly or not, she is painted as a disingenuous hypocrite.

The Usual Arguments

Subjects of hidden video often trot out commonly raised shibboleths against hidden cameras: “the video was obtained under a fraudulent pretext,” “the journalist was trespassing,” “so-and-so is not a real journalist,” and of course, the ever-popular argument that the entire video should be rejected because of “selective editing.” (News flash: all video is edited.)

But none of these arguments hold water given that they speak to the behavior of the journalist, and not to the truth or falsity of what the videos may reveal. Worse yet, they disregard the history and importance of hidden cameras, and the First Amendment jurisprudence relied upon by so many media outfits.

Serving the Public Interest

Let’s start with some basics. The Society of Professional Journalists’ ethical code states that news organizations should “Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story.”

Once editors have determined that there is a substantial public interest and no other way to get the story, broadcasters have several times defeated legal challenges to the use of hidden cameras.

One such example was ABC’s use of hidden cameras in a story about an eye care center who allegedly performed unnecessary operations at inflated prices. Most of the doctors’ victims were senior citizens.

Although James Desnick, the doctor responsible for the eye care center raised all of the usual arguments against hidden video, Judge Posner of the Seventh Circuit explained not just the public interest in such a story but dissected how claims of “fraud” and “trespass” failed in the light of that public interest:

Without [such protections] a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely claimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer’s showroom.

Like it or not, O’Keefe has the same rights as ABC, and in underscoring those rights Judge Posner stated that: “An elaborate artifice of fraud is the central meaning of a scheme to defraud through false promises. The only scheme here was a scheme to expose publicly any bad practices that the investigative team discovered, and that is not a fraudulent scheme.

Other stories using hidden cameras to show the public bad practices include unveiling schoolyard bullying, unsafe and illegal food handling practices, the efficacy of antiterrorism countermeasures, and showing the insides of nuclear power facilities housed at public universities.

Although not as sensational, surely voters have a right to hear what a United States senator says behind closed doors, especially if her private statements are contrary to her public statements.

The complaint that O’Keefe is not a “real” journalist — and thus undeserving of First Amendment protection — is a dangerous and unfounded assertion.

There is little doubt that O’Keefe has an agenda, and may sometimes fail to produce clear, accurate and unbiased journalism. But those same charges have been leveled against “60 Minutes” producer Lowell Bergman, and television journalists such as Sam Donaldson and Mike Wallace.

News organizations ought to challenge McCaskill’s call for a special prosecutor not in defense of O’Keefe, but rather in their own interests to reject the notion that government should decide who is and isn’t a journalist.

An inconvenient truth

To a large degree, there is a cogent argument that media organizations are sidestepping or ignoring this issue because it provides support to an avowed conservative, and even more so there has been a pattern and practice of media ignoring cases where pet causes popular in newsrooms such as abortion might be shown in a negative light.

The media’s failure to stand up for its own interests because of emotional or political investment in the pro-choice movement came to light in 2015, when the Center for Medical Progress (an anti-abortion group) captured on videotape a Planned Parenthood employee bargaining to sell body parts of aborted fetuses.

Although Planned Parenthood insisted that the videos were made under fraudulent pretenses and were selectively edited, even left-leaning fact checker Snopes found that such claims were only partially true.

The National Abortion Federation sued CMP and convinced a San Francisco federal judge to issue a restraining order preventing the further broadcast of the videos. I cannot help but believe that if a prior restraint were issued regarding any other subject, news organizations and their media lawyers would have intervened and strongly objected. They did not.

Similarly, Slate’s David Weigel wrote in 2013 that this same newsroom bias was responsible for the paucity of coverage of Dr. Kermit Gosnell, an abortionist who was convicted of murdering three infants who were born alive during attempted abortion procedures and one woman during an abortion procedure, as well as 21 felony counts of illegal late-term abortion.

“There is a bubble,” wrote Weigel. “Horror stories of abortionists are less likely to permeate that bubble than, say, a story about a right-wing pundit attacking an abortionist who then claims to have gotten death threats.”

This month in England an injunction was issued against the publication of the name of a high-powered executive involved in a #MeToo issue, and the press rallied and railed against the prevention of publication.

That leads one to no other reasonable conclusion that if the media doesn’t like the facts being uncovered, they’ll stay silent, but if it’s a cause “worth” fighting for, they will object to prior restraints.

McCaskill’s launching a legal attack on O’Keefe — especially for personal political convenience — represents a threat to broadcasters as dangerous and real as fake bombs. The media and their lawyers ought to recognize that they have as much skin in the game as does O’Keefe.

Charles Glasser (@MediaEthicsGuy) was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and the CUNY Newmark Graduate School of Journalism and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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