In the course of investigative reporting, the journalist can indulge in dubious practices such as faking identity, hiding identity, and undertaking jobs under pretenses. Whether such actions can be considered morally right is a widely debated question. Journalists must seek the truth and report it as completely as possible. As such it is expected that they are honest, fair, and courageous in gathering, reporting, and interpreting information; keep themselves well informed; give voice to the voiceless and hold the powerful accountable. A journalist may sometimes choose to use deception by using deceptive methods such as misrepresentation (false identity), hidden camera/recorder, entrapment, and undercover reporting. Deception cannot be morally justified when the motivation is to win a prize or beat the competition when it is used as a shortcut to what should be a deliberate and thorough process; and when the journalist’s justification is that the subject is unethical anyway.
However, deception is justified when the information obtained is of profound importance and other ways of getting it has been tried; when the journalists are willing to disclose the nature of the deception and the reason/s for it; when the harm prevented by reporting that information outweighs any harm caused by the deception and when the journalists invest time, effort, and resources to pursue the story fully. Robert Scheer, an American journalist who was with a radical publication in its anti-war heyday in the 1960s says: “When you feel a story is important and there is no other way to get the information when you use certain means….I don’t mean to say that I’ve got some little calculus that allows you to make these judgments, a measuring stick that will tell you where it’s right or wrong. I think these are tough questions.” Thus misrepresentation of journalists in investigative journalism is morally right when it is the resultant action taken after weighing important factors such as the result of the act on those being deceived, the impact on journalistic credibility, motivations, editorial policy/mission, and legal implications.
Many popular investigative journalists such as Nellie Bly and Annie Laurie have indulged in misrepresentation deeds. So have many others such as Walter Cronkite, Gloria Steinem, and Carol Lynn Mithers. Investigative journalism is mostly about informing the public about the wrongdoings of a business or government. To expose corrupt politicians and businessmen, journalists need to get vital information that can be had, sometimes, only through deception. Till not so long ago, investigative journalists who used deception to get the goods on the bad guys were treated like heroes. More recently, the misrepresentation of journalists is being debated as an illegal act. The act of misrepresentation in investigative journalism is one that can be seen as part of the profession and justified in the light of the utilitarian theory that suggests any act that provides maximum benefit to a maximum number of people is good.
Nellie Bly posed as an insane woman during her investigation of New York City’s notorious Women’s Lunatic Asylum. Annie Laurie disguised herself as an indigent patient to expose improper conduct by the staff of San Francisco’s city hospital. They exposed so many corrupt practices in the two cities across a continent that the technique was given its name: stunt journalism. Bly and Laurie’s stories became classics of investigative reporting. Nobody seemed to care that even their bylines were pseudonyms. Another journalist, Gloria Steinem, transformed herself into a Playboy Bunny to give readers an inside look at what the women employees of the Playboy Clubs had to go through to please the boss as well as the customers. Carol Lynn Mithers posed as a man to get a job on a sports magazine and published the results in a Village Voice article called “My Life as a Man.” Walter Cronkite voted under false names twice in the same election to expose election fraud. Miami Herald reporters went undercover to expose housing discrimination.
Television production houses and magazine publishers were also behind the investigative journalists in this context. CBS’s “60 Minutes” set up a bar called the Mirage, manned it with undercover journalists and watched as various city officials demanded bribes for their services. The Chicago Sun-Times sent female journalists into clinics in downtown Chicago that performed costly abortions on women who were not pregnant. And in 1992, ABC News’ “Prime Time Live” used undercover reporters and hidden cameras to document charges that some Food Lion stores sold tainted meat and spoiled fish. All these investigations belong to the past and investigative reporters did not fear telling their stories of misrepresentation as they know that as long as their motives were morally right and their stories accurate, they were on safe ground.
In 1992, ABC News’ “Prime Time Live” used undercover reporters and hidden cameras to document charges that some Food Lion stores sold tainted meat and spoiled fish (Lisheron 1). As a result, Food Lion stores attacked the television news channel for using subterfuge to get into Food Lion’s back rooms. They took the issue to the courtroom and accused the ABC news channel of using fraudulent means to get information. The North Carolina jury who heard the case decided to impose a $5,000,000 fine against ABC News for having its network employees use false job applications to get hired by Food Lion, thereby committing fraud, trespassing, and breach of loyalty. Moreover, ABC News was charged with misrepresentation and deception (Saltzman, 29). The jurors fell for this argument even though the supermarket was deceiving the general public in a big way and was dangerous to society at large. The jurors decided that journalists should never misrepresent themselves to get the news. This implies that the act is legally wrong.
Undercover journalism by its very nature is concerned with lying and deception. The word “undercover” implies secrecy and stealth. Such deception is generally used by journalists only if there is no other way to get the story. Hence it cannot be considered a morally wrong act.
In a study by Aralynn Abare McMane (214) three questions were asked about misrepresentation by journalists to groups of French and American journalists (McMane 207). The results yielded a mix of responses. Among the French journalists, 56% agreed that becoming employed in a firm or organization to gain inside information might be justified for an important story. Among the Americans, 63% agreed. A separate question asked about the propriety of hiding one’s identity and claiming to be someone else. Fewer journalists in each country condoned this practice, but French journalists were significantly more supportive (with 39% approving) than were the U.S. journalists (21% approving) (McMane 214). The findings highlight some differences between the French and the Americans. The French respondents were significantly more likely than their U.S. counterparts to approve of three practices: badgering sources, paying for confidential information, and assuming a false identity. The French newspaper journalists were significantly less supportive than the Americans of using personal documents, such as letters, without permission. Thus, the moral stand on this issue of misinterpretation depends on the culture and is mostly considered right according to the study (McMane 212).
In the context of misrepresentation of investigative journalists, there are two kinds of deception: active (impersonation) and passive (not announcing that one is a journalist). In a discussion of journalistic deception, Elliott and Culver (1992) noted that journalists routinely differentiate between the two with active deception, which Elliott terms “lying,” as less acceptable than passive deception “withholding” (p. 77). Active impersonation was addressed in both the 1918 and 1935 French ethical codes by a statement that French journalists should not “allow themselves to take on an imaginary title or position” to get information (McMane 215). However, the practice of assuming phony identities to procure top secret information continued. For example, in 1989 the monthly magazine Globe reported the reaction of prominent French communications and arts figures to lucrative offers from a phony Iranian emissary who was working for the magazine (McMane 215).
In the study involving the French and the US journalists, it was found that both of them agreed there should be no violation of the promise of anonymity, government or business documents should not be used without authorization, and a person must not get hired to obtain inside information. The study also has the following findings: Journalists from Western industrialized democracies strongly share the ideal that source anonymity should not be violated and secondly, journalists from Western industrialized democracies tend to feel more comfortable with deception toward government and business than toward private individuals (McMane 216). Overall, one finds that misrepresentation of the journalist in investigative journalism has always been found acceptable both morally and legally in the past. It’s only now that this notion has been legally challenged.
Because of the negative judgment in the Food Lion Case, Bruce Sanford, a veteran First Amendment lawyer, predicted: “You can expect journalists in the wake of this to give us more stories about Dennis Rodman and Madonna instead of more stories that are important to us” (Boylan 24) This meant, judging misrepresentation as an immoral act can have great repercussions including a negative impact on the growth of investigative journalism. Jane Kirtley, executive director of the Reporters Committee on Freedom of the Press said: “The specter of a verdict of this magnitude… will have a chilling effect on investigative journalists all over the country.” But many journalists, notably on the print side did not agree. Columnist A.M. Rosenthal said in The New York Times that by going undercover at Food Lion, ABC investigators were doing what they would “never willingly allow done to themselves”.
He added that he had not yet encountered a story that merited misrepresentation. He was not alone in opining that misrepresentation of the journalist in investigative journalism can never be justified and is always wrong. Columnist Jonathan Yardley charged in The Washington Post that what ABC did was close to entrapment. Lewis Lord, in a column for U.S. News & World Report, warned that TV muckraking was becoming thin and sensational. The questioning of the morality of the act of misrepresentation by journalists leads the journalists to feel a lack of confidence while facing serious professional questions, legal challenges, and public skepticism. In investigations of this type, journalists also face retaliation from the corporations who are often the targets of investigations. Corporations, with their money power, can find ingenious ways around constitutional barriers as can be seen in the case of fraud in the Food Lion case (Boylan 24).
Most of the court cases involving investigative journalism have been around print publications. The 1964 Supreme Court decision in Times v. Sullivan showed that plaintiffs, even public figures, can win libel suits. Sullivan provided the opportunity to prove that a journalist knowingly published a lie or acted in “reckless disregard” of the truth. In the past six years, juries have awarded a quarter of a billion dollars in libel damages. Big newspaper houses such as The Inquirer or ABC News may be able to bear such burdens, but similar penalties and distractions have crushed or bankrupted smaller news organizations. Whether misrepresentation of the journalist in investigative journalism is morally right or wrong, the reaction of the courts seems to suggest that it is now considered legally wrong. Big libel awards against news media have been a continual phenomenon of the 1980s and 1990s.
Plaintiffs are increasingly attacking the newsgathering process – the use of the hidden camera, the ambush interview, the disguised identity. The Food Lion case involved charges of trespass and deception in gaining access to the news site; According to Neville L. Johnson, a Los Angeles plaintiffs’ lawyer, he has eight lawsuits pending against television networks involving the use of hidden cameras or undercover reporters.
Many journalists mistakenly assume that the First Amendment protects reporters wherever they choose to go, whatever they may do in the pursuit of a story. Courts have never supported these assumptions. For example, the Watergate generation of investigative reporters contended that the First Amendment protected them when they concealed the identity of sources to whom they had promised confidentiality, even in some instances when they might have seen the source committing a crime. The unfriendly Warren Burger Supreme Court rebuked them in no uncertain terms. While it noted in Branzburg v. Hayes (1972) that journalism was entitled to “some protection for seeking out the news,” it took a narrow view of that protection. Justice Byron White snidely suggested that journalists believed it was “better to write about crime than to do something about it.” The court ruled that reporters could not use a First Amendment plea to excuse themselves from revealing the identity of sources to courts and grand juries. The court added in Houchins v. KQED (1977) that the First Amendment did not authorize reporters in pursuit of news to go where the public could not go (in this case, the innards of a prison). At less elevated levels, courts, again and again, have denied the right of journalists to commit even minor illegal acts in pursuit of a story – as when a television crew was snagged for trespass when it tried to film overcrowding at a Manhattan restaurant.
Another legal tangle happened when a Pennsylvania couple sued two Inside Edition reporters investigating the steep salaries of executives at U.S. Healthcare surreptitiously for surveilling the suburban home of the daughter and son-in-law, following them and their children to and from work and school, and trailing the whole family to their vacation home in an exclusive Florida enclave. A federal district court in Pennsylvania allowed the couple to proceed to trial and ordered the reporters to stop engaging in conduct that “invades the privacy” of the family. The fact that courts are willing to weaken First Amendment protection for newsgathering has alarmed media attorneys (Boylan, 24).
A common definition of investigative journalism is ‘going after what someone wants to hide’ although not everything that someone wants to hide is worth going after. Jonathon Calvert, formerly of Insight and the Observer and presently on the Express, says ‘I want to expose a bad practice, not a bad person. This is then, the essence of investigative journalism. Usually, investigative journalists appeal to our existing standards of morality. They are the ones who point to the public what is wrong (Burgh, 15). Greene describes investigative journalism as “uncovering something somebody wants to keep secret” (Protess and Cook 5). Similarly, Anderson and Benjaminson state that “investigative reporting is simply the reporting of concealed information” (Protess and Cook 5). Published allegations of wrongdoing – political corruption, government inefficiency, corporate abuses, help define public morality in the United States. The work of investigative journalists is validated when citizens respond to their findings by demanding change from their leaders as happened in the case of President Nixon in the Watergate Scandal. When the work is validated by the public, it has to be morally correct.
Investigative reporting plays a fundamental role in the structure of our nation’s government, perhaps more so than any other genre of the press. The Court long has acknowledged the responsibility of informing the public as one of the core purposes of the Free Press Clause, and in Estes v. Texas, it noted that the press “has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences.” Investigative news shows fulfill this role to the utmost. However one may feel about the methods used by such shows as Hard Copy and PrimeTime Live, it is impossible to ignore the power of the result. For instance, PrimeTime Live has pointed a hidden camera into the London hotel room of Malawi’s president, documenting the shopping binge of the leader of one of the world’s poorest countries. It has shown Wichita students selling guns, Peruvians defrauding adoption-minded Americans by selling them unexportable babies, doctors who repeatedly misread mammograms, and a quadriplegic patient crying out amid filthy conditions at a veterans hospital…. [and] followed members of Congress to a lobbyist-funded vacation in Florida. The result of every case of investigative journalism mentioned above is to serve the public interest. As such the means to serve this end has to be morally right.
Upendra Baxi, Professor of Law at University of Warwick, UK, former vice-chancellor of Delhi University and author of several seminal works, has said that “investigative journalism is an integral part of freedom of speech and expression done for the manifest public good; it is also a collective right” (TNN 1). According to him, investigative journalism has to use unconventional methods. “I approve of it if it serves a manifest public purpose”. This once again underlines the acts of misrepresentation by an investigative journalist as morally acceptable as long as it is in the public interest. But it is time to emphasize standards and quality in investigative reporting. Establishing high standards is critical not only to professionalizing the media but to have a positive impact on the public. The overuse and abuse of undercover cameras, misrepresentation, and payment of money for information all are issues that must be used cautiously only when needed and can be considered morally right only when it helps serve the larger public cause. Ethics is a framework that can guide the investigative reporter to make the right choices of action: ones that are by human rights, obligations, and benefits to society, fairness, and other values that an individual or an organization stands for and choices made ethically are also morally right.
Works Cited
Boylan, James (1997). Punishing the Press: The Public Passes Some Tough Judgements on Libel, Fairness, and “Fraud. Columbia Journalism Review. Volume: 35. Issue: 6. Page Number: 24+.
Burgh, de Hugo (2000). Investigative Journalism: Context and Practice. Routledge Publishers. New York. 2000.
Lisheron, Mark (2007). Lying to Get the Truth. American Journalism Review.
McMane, Abare Aralynn (1993). Ethical Standards of French and U.S. Newspaper Journalists. Journal of Mass Media Ethics. Volume: 8. Issue: 4. 1993. Page Number: 207.
Protess, David and Cook, Lomax (1991). The Journalism of Outrage: Investigative Reporting. Guilford Press. 1991.
Saltzman, Joe (1997). A chill settles over investigative journalism.(Food Lion markets’ victory over ABC News). USA Today. Volume 125. Issue: 2626. Page No. 29.
TNN (Times News Network) (2002). Baxi praises Tehelka’s sting operation. The Times of India.