Legal and Scholarly Analysis and Commentary
"The Media's Intrusion on Privacy: Balancing the Rights of Privacy and the Press: A Reply to Professor Smolla" – Erwin Chemerinsky – The George Washington Law Review
"The Media's Intrusion on Privacy: Privacy and the First Amendment Right to Gather News" – Rodney A. Smolla – The George Washington Law Review
"Lying to Tell the Truth: Journalists and the Social Context of Deception" - Seow Ting Lee - Mass Communication & Society
"Deception is an illusive and difficult issue. The inverse of deception is truthfulness, which is perhaps the closest to a universal value that we have. Deception is objectionable, but this moral outlook is complicated by the systematic nature of deception in human relationships, from little white lies in social intercourse to the far more capacious deception in international relations or warfare. . ."
The seeds of public distrust were sown long before the recent round of scandals.
". . . A slim majority said the press was often influenced 'by powerful people and organizations.' Even higher percentages believed the news media was often influenced by the federal government (73 percent); business corporations (70 percent); advertisers (65 percent), and labor unions (62 percent). Many Americans also doubted the news media's fairness and journalists' willingness to admit mistakes."
"A Desire to End These Things" - Ronald E. Ostman and Berkley Hudson - Visual Communication Quarterly
An Analytical History of John L. Spivak's Photographic Portrayal of 1930s Georgia Chain Gangs
"As investigative journalist and photographer John L. Spivak rode in a taxi from the train station for his first visit to a Georgia convict camp, he could see a prisoner undergo torture. . .With a Kodak dangling from a strap around his neck and with pockets 'filled with roles of film,' Spivak exited the taxi. Straightaway, he took pictures without permission. Then, a guard pointed a shotgun at Spivak. After an angry exchange, Spivak handed him an introductory letter from Gerogia's prison commissioner. . ."
"The Odd Amalgam: John L. Spivak's 1932 Photographs, Undercover Reporting, and Fiction in 'Georgia Nigger'" - Ronald E. Ostman and Berkley Hudson
"Lincoln Steffens, who generally is cited as the first muckraking journalist, called John L. Spivak 'the best of us.' Spivak, among many progressive and muckraking writers of America's early 20th century who might have competed for the honor, was labeled by some of his contemporaries as 'the best reporter...in the whole United STates at the present moment,' 'America's greatest newspaper man,' 'one of the alertest reporters alive,' and 'greatest reporter since Lincoln Steffens' . . ."
". . .At the same time women were writing about domestic matters, newspapers began to employ them to create another kind of journalism: tales of social abuse and crime that boosted newspaper circulations in the era of Hearst and Pulitzer. Pulitzer's 'New York World,' the paper that employed 'Jennie June' to write its women's page, also hired 'Nellie Bly.' Bly, whose real name was Elizabeth Cochrane, became the first internationally-famous female journalist with her round-the-world race in 1980, beating a female reporter from a rival Hearst paper. . ."
"Secrets and Lies: News Media and Law Enforcement Use of Deception as an Investigative Tool" - Bernard W. Bell - University of Pittsburgh Law Review
". . .Arguably, courts should tolerate law enforcement intrusions more readily than media intrusions because identifying and punishing criminals is more important than informing the public-in other words, law enforcement's mission should take precedence over the press's. Thus, the key distinction between press and law enforcement undercover operations is the difference in their missions, not, as I will later suggest, the difference in the types of public control over the respective institutions. For example, courts might show less solicitude toward government use of undercover techniques whengovernment agencies employ such techniques to protect the government's proprietary interests. Courts might entertain more serious reservations about approving the use of undercover techniques to identify inefficient or untrustworthy employees than to uncover violations of criminal law. If so, because government, whether pursuing law enforcement or its own proprietary interests, is subject to popular control, only the heightened valuation of the government's mission, not the existence of greater control, could justify the favoring of law enforcement over the press. . ."
"Youth on the Road: Reflections on the History of Tramping" - Judith Adler - Annals of Tourism Research
". . .In the first third of the twentieth century, 'the road' still played a part in the life of thousands of young people, but the literature on such youth travel consistently examined it as a form of juvenile delinquency, rounding off the narrative with proposals for rescue and resettlement. . ."
Tramp Ethnographers and Narratives of Class in Progressive Era America
". . .This essay focuses on how these social investigators made sense of what they perceived as the troubling actions of unskilled male workers. Throughout the Progressive Era (roughly 1880-1925), middle-class intellectuals counted, classified, photographed, and otherwise examined the lives of working-class people. . ."
"The Media's Intrusion on Privacy: Protecting Investigative Journalism" - C. Thomas Dienes - The George Washington Law Review
". . .In 1904, the Muckraker journalist, Upton Sinclair, went undercover as a meat packer to expose conditions in the Chicago slaughterhouses. His findings, documented in The Jungle, provided impetus for adoption of federal food and drug legislation
"Doesticks' Assault on Slavery: Style and Technique in the Great Auction Sale of Slaves, at Savannah, Georgia" - Edward J. Piacentino - Phylon
". . .The author of 'The Great Auction Sale,' Mortimer Thomson, better known by his pseudonym, Q.K. Philander Doesticks, P.B., a writer who was one of the most popular American humorists of the 1850s, previously had published five books—all with a humorously satiric thrust: 'Doesticks: What He Says,' a burlesque of many facets of New York City life in the 1850s; 'Plu-ri-bus-tah, A Song That's By-No-Author,' a poetic burlesque social history of the United States parodying the trochaic metrics of Longfellow's 'Hiawatha'. . ."
"Deception in Medical and Behavioral Research: Is It Ever Acceptable?" - Dave Wendler - The Milbank Quarterly
". . .For this reason, and in spite of the widespread unanimity regarding the importance of subject autonomy, the question remains, is subject deception in research ever ethically acceptable. . .?"
"Theatrical Investigation: White-Collar Crime, Undercover Operations, and Privacy" - Bernard W. Bell - William & Mary Bill of Rights Journal
"The essence of theater is deception. Actors assume various roles to inform or entertain the audience. Frequently, theater takes deception to a second level, in which characters assume false identities or feign loyalty for various purposes. Sometimes such artifices are employed to uncover truths that others seek to keep secret."
"What Is Really Rotten in the Food Lion Case: Chilling the Media's Unethical Newsgathering Techniques" - Lori Keeton - Florida Law Review
". . .This case brings up the almost impossible balance that must be achieved between the press' rights, the public's need to know, and a business' right to privacy. Should reporters be allowed to lie about who they are and what they are doing to get a good story? How far is too far? Where should the line be drawn between acceptable and unacceptable newsgathering practices. . .?"
"New Whines in Old Bottles: Taking Newsgathering Torts Off the Food Lion Shelf" - John P. Borger - Tort & Insurance Law Journal
"Undercover reporting and aggressive elbowing for position to be where the news is happening have been accepted components of journalism for decades. They have produced memorable news accounts and sometimes prompted legislation to remedy abusive activities by the subjects of the news reports. Upton Sinclair and Nellie Bly have become icons in the history of undercover or anonymous newsgathering."
"Deception, by which we mean words or conduct intended to induce false beliefs in others, plays a complex role in human life. Well-socialized people revere honesty and disapprove of lying and other forms of deception. At the same time, well-socialized people engage in deception, regularly and skillfully, not only for altruistic reasons, but also to gain advantages over others."
". . .Some years back they were given the name muckrakers, as a term of derision. Far from being shamed or deterred, however, they began to wear their title as a badge of honor and to engage more actively and vigorously in exposing corruption, oppression, abuse of authority, and other kinds of wrongdoing. . ."
"Off-Stage Voices in James Agee's Let Us Now Praise Famous Men: Reportage as Covert Autobiography" - William Todd Schultz
"What became FM began as an assignment for Fortune magazine, luxurious track record of the noteworthy rich, with Agee and Evans traveling to Alabama in search of an article on tenant farming. Neither Agee nor Evans felt comfortable with what Agee called this "curious" arrangement, and so from the beginning publication—in any form Fortune could use—seemed only a distant possibility. The magazine had in fact considered a similar proposal several years earlier by photographer Horace Bristol and John Steinbeck, but Steinbeck eventually vetoed the arrangements due to Fortune's clear and shameless celebration of capitalist ideology (Sacramento Bee. April 5, 1989), a style in direct contradiction to the spirit of the project."
". . .The highest honors of journalism are taken by him who is at once a writer and an editor of marked ability. To that position every man aspires who makes journalism his profession, whether he is incited thereto by thought in his brain and a purpose in his heart, or whether he merely desires power and profit, the profit that always waits on power. . ."
". . .Before the rise of sensational journalism in the 1830s, newspapers were often celebrated as informative and socially beneficial vehicles of enlightenment. Later assessments of the press frequently found some kinds of subject matter distinctly improper. . ."
"Newsgathering and the First Amendment: Toward a Progressionist Theory of Constitutional Interpretation" - Erik F. Ugland
". . .During the past three decades, news organizations have sought to broaden the definition of press freedom to include protections for newsgathering. Journalists and their advocates have argued that if they are to serve the highest purposes of their profession, freedom of the press must encompass more than their right to publish what they know; it must also protect their pursuit of the unknown. Media lawyers have thus sought judicial acknowledgement of the right of journalists to attend judicial proceedings; to access government records; to monitor activities in federal prisons; to break promises with their confidential sources without being sued for damages; to be protected against tort claims targeting theirnewsgathering activity; and to be exempt from prosecution for certain crimes committed in their pursuit of news. . ."
"In their pursuit of newsworthy stories, television journalists often invade theprivacy of their news subjects. When they enter private property or reveal private facts about individuals, reporters tread a fine line that may ultimately subject them to trespass and other privacy torts."
"Establishing constitutional malice for defamation and privacy/false light claims when hidden cameras and deception are used by the newsgatherer" - David A. Elder, Neville L. Johnson and Brian A. Rishwain - Loyola of Los Angeles Entertainment Law Review
". . .A hidden camera story is essentially a 'grainy little morality play,' edited to heighten the entertainment value, where journalists go undercover to mythologize their work by becoming protagonists, modern, 'folk heroes' who ferret out wrongdoing as the superheroes of pop culture. . ."
"In journalism, with its emphasis on pursuing and publishing the truth, deception strikes at the heart of the profession. Truth telling, the inverse of deception, is a universal value and a fundamental given in the communications field. Journalists are expected to tell the truth, but in what appears to be a paradox, they may have to deceive to get the truth."
"Defining and Analyzing Journalistic Deception" - Deni Elliott and Charles Culver - Journal of Mass Media Ethics
Many journalists, readers and scholars exhibit confusion concerning the nature and justification of deception.
"Deception has been a tool of effective and award-winning reporting since 100 years ago when Nellie Bly went undercover to expose corruption in industry and government. It has also been a practice that has created additional distrust for journalists, who are already suffering from credibility problems."
"Undercover Reporters, Tort Law, and the First Amendment: Food Lion v. ABC and the Future of Surreptitious Newsgathering" - Daniel A. Levin and Alan C. Roline - Kansas Journal of Law and Public Policy
". . .Because most of the alleged Food Lion misconduct occurred only in non-public areas of the stores, Dale and Barnett decided it would be necessary to pose as Food Lion employees to document whether the allegations were true. They planned to hide small video cameras and audio equipment on their persons, and use these devices to record the actions and statements of other Food Lion employees. Because Food Lion would not knowingly hire ABC reporters whose purpose was to investigate Food Lion’s practices, Dale and Barnett, with the UFCW’s help, created false identities and backgrounds, complete with supporting documentation. ABC’s upper management and legal department reviewed and approved all of the above activities. . ."