Publication Date

12-16-2022

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Constitutional law, First amendment, Free speech, Free press

Abstract

This essay explores investigative deceptions, intentional lies used to gather information that is in the public interest, across different areas of law. In some contexts, such falsehoods are viewed as producing great social benefits. For example, civil rights laws embrace intentional lies by testers to smoke out discriminatory conduct. Under federal labor law, union 'salts' are allowed to hide their identity and acquire jobs with employers whose workers they wish to organize. In most cases, law enforcement officers may engage in elaborate subterfuges when operating 'stings' and interrogating witnesses. In these contexts, the law permits a person to lie in material ways – to obscure their true identity, their actual motives, and the identity of their employer. These deceptions enable actors to lawfully access private property, engage in private conversations, and make observations in places where they would otherwise be unwelcome if they did not lie. Because these deceptions are all sanctioned by law, free speech questions do not even arise. On the other hand, investigative deceptions in other contexts have been met with, at best, mixed reviews. The journalism community hotly debates the professionalism of undercover investigations, with most ethics codes forbidding lying in most circumstances. Some reporters who conduct such investigations are celebrated, while others face professional opprobrium, accusations of unethical conduct, denial of major journalism prizes, and lawsuits from the targets of their investigations. In recent years, political activists have appropriated these tactics to engage in undercover investigations of people and organizations they wish to expose as hypocritical, immoral, or engaged in illegal or inappropriate behavior. These investigations have recently been met with criminal sanctions and limits imposed by common law or statutory tort claims by the subjects of their investigations. First Amendment doctrine is still evolving regarding these types of investigative lies and, as in journalism, their legitimacy is contested. The essay explores how social, political, and historical contingencies help explain the differences in how law and society view different types of undercover investigations and examines whether debates in other fields might help inform and influence First Amendment doctrine. Moreover, it contends that investigative deception should be viewed as a social practice that implicate the values served by the First Amendment.

Publication Statement

Copyright held by the authors. User is responsible for all copyright compliance.

Originally published as Chen, Alan K., Investigative Deception Across Social Contexts, 22-14 Knight First Amend. Inst. (Dec 16, 2022)

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