Amicus Curiae Brief — Center for Medical Progress, et al., Petitioners v. Planned Parenthood Federation of America, et al.
Supreme Court briefJul 3, 2023
Ask Donna
What actually matters in this document.
Text
No. 22-1168
In The
Supreme Court of the United States
CENTER FOR MEDICAL PROGRESS, et al.,
Petitioners,
v.
PLANNED PARENTHOOD FEDERATION OF AMERICA, et
al.,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF OF AMICI CURIAE OF COALITION OF
FREE SPEECH, WHISTLE-BLOWER
PROTECTIONS, AND ANIMAL-ADVOCACY
ORGANIZATIONS IN SUPPORT OF
PETITIONERS
GREGG P. LESLIE
Counsel of Record
ZACHARY R. CORMIER
Arizona State University
Sandra Day O’Connor
College of Law, First
Amendment Clinic, Public
Interest Law Firm
111 E. Taylor St., MC 8820
Phoenix, AZ 85004
Gregg.Leslie@asu.edu
(480) 727-7398
Additional counsel listed inside front cover
List of Additional Counsel for Amici:
JUSTIN MARCEAU
University of Denver, Sturm College of Law
2255 E. Evans Ave.
Denver, CO 80208
GABE WALTERS
JT MORRIS
Foundation for Individual Rights and Expression
700 Pennsylvania Ave., SE
Suite 340
Washington, DC 20003
PIPER HOFFMAN
Animal Outlook
P.O. Box 9773
Washington, D.C. 20016
AMANDA HITT
Director
Government Accountability Project
1612 K St., NW
Suite 1100
Washington, DC 20006
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES....................................... ii
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT ...............................................................2
ARGUMENT ...............................................................5
I.
Historically, Undercover Newsgathering and
Reporting Have Been Central to Democratic
Accountability in the United States. ...................5
II. Deceptive Techniques Are Necessarily Employed
by Journalists and Others Engaged in
Undercover Newsgathering Today. .....................9
III. The Ninth Circuit’s Decision Gives Insufficient
Weight to the Important First Amendment
Issues at Stake in this Case. .............................. 13
A. The use of deception for undercover
investigative reporting is constitutionally
protected speech. ........................................... 14
B. First Amendment limits on tort damages are
vital to protecting undercover reporting on
public issues. ................................................. 20
CONCLUSION .......................................................... 26
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Animal Legal Def. Fund v. Herbert,
263 F. Supp. 3d 1193 (D. Utah 2017) .............18, 19
Animal Legal Def. Fund v. Kelly,
9 F.4th 1219 (10th Cir. 2021) ...............................19
Animal Legal Def. Fund v. Otter,
118 F. Supp. 3d 1195 (D. Idaho 2015) ..................12
Animal Legal Def. Fund v. Reynolds,
8 F.4th 781 (8th Cir. 2021) ...................................19
Animal Legal Def. Fund v. Wasden,
878 F.3d 1184 (9th Cir. 2018)................... 12, 18, 19
Baugh v. CBS, Inc.,
828 F. Supp. 745 (N.D. Cal. 1993)........................18
Branzburg v. Hayes,
408 U.S. 665 (1972) ...............................................14
Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 757 F.3d 1125 (10th Cir. 2014) ....................20
Citizens United v. FEC,
558 U.S. 310 (2010) ...............................................14
Cohen v. Cowles Media Co.,
501 U.S. 663 (1991) ...............................................22
CSX Transp., Inc. v. McBride,
564 U.S. 685 (2011) ...............................................23
iii
Desnick v. Am. Broad. Cos., Inc.,
44 F.3d 1345 (1995) ..............................................18
Food Lion, Inc. v. Capital Cities/ABC, Inc.,
194 F.3d 505 (4th Cir. 1999)...........................18, 20
Globe Newspaper Co. v. Sup. Ct.,
457 U.S. 596 (1982) ...............................................13
Hustler Magazine v. Falwell,
485 U.S. 46 (1988) .................................................21
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ...............................................13
People for the Ethical Treatment of Animals,
Inc. v. N.C. Farm Bureau Fed’n, Inc.,
60 F.4th 815 (4th Cir. 2023) .................................19
Planned Parenthood Fed'n of Am., Inc. v.
Newman, 51 F.4th 1125
(9th Cir. 2022) ............................................. 3, 15, 24
Planned Parenthood Fed’n of Am., Inc. v. Ctr.
for Med. Progress,
402 F. Supp. 3d 615 (N.D. Cal. 2019).............21, 22
Planned Parenthood Fed’n of Am., Inc. v. Ctr.
for Med. Progress,
613 F. Supp. 3d 1190 (N.D. Cal. 2020).................25
Planned Parenthood Fed’n of Am., Inc. v. Ctr.
for Med. Progress, No. 16-CV-00236-WHO,
2020 WL 7626410 (N.D. Cal. Dec. 22, 2020)........25
iv
Snyder v. Phelps,
562 U.S. 443 (2011) ...............................................19
United States v. Alvarez,
567 U.S. 709 (2012) .........................................15, 16
Constitutional Amendments
U.S. Const. amend. I ................................................13
Statutes
Id. Rev. Stat. § 18-7042 ............................................12
Meat Inspection Act, Pub. L. No. 59-242,
34 Stat. 1260 (1907) ................................................8
Pure Food and Drug Act, Pub. L. No. 59-384,
34 Stat. 768 (1906) ..................................................8
Other Authorities
Alan K. Chen & Justin Marceau, High Value
Lies, Ugly Truths, and the First
Amendment, 68 Vand. L. Rev. 1435 (2015)..........15
Athelia Knight, Drug Smuggling and Hot
Goods: A Ride on Prison Visitors’ Buses,
The Wash. Post (Mar. 4, 1984) .............................11
Barbara Ehrenreich, Nickel and Dimed: On
(Not) Getting By in America (2001) ......................11
Bill Kovach & Tom Rosenstiel, The Elements
of Journalism (3d ed. 2014) ..................................14
v
Brooke Kroeger, Nellie Bly: Daredevil,
Reporter, Feminist (1994) .......................................7
Brooke Kroeger, Undercover Reporting,
The Truth About Deception (2012) .................5, 6, 8
Dana Reed & Anne Hull, Soldiers Face
Neglect, Frustration at Army’s Top Medical
Facility, The Wash. Post (Feb. 18, 2007) .............10
David Greenberg, How Teddy Roosevelt
Invented Spin, The Atlantic (Jan. 24, 2016) ..........7
Greg Marx, The Ethics of Undercover
Journalism, Colum. Journalism Rev.
(Feb. 4, 2010).........................................................14
Jane H. Li, 65 Cents an Hour—A Special
Report: Week in Sweatshop Reveals Grim
Conspiracy of the Poor, N.Y. Times
(Mar. 12, 1995) ......................................................11
Justin Wm. Moyer, ‘You Need to Kill Him?’:
Tyson Food Contractors Caught on Video
Mistreating Chickens, The Wash. Post
(Dec. 6, 2017)...................................................11, 12
Karen Olsson, Welcome to The Jungle, Slate
(July 10, 2006).........................................................7
Nathan Siegel, Publication Damages in
Newsgathering Cases,
19 Comm. Law (2001) ...........................................23
Nellie Bly, Ten Days in a Mad-House (1887) ............7
vi
Philip Shenon, Welfare Hotel Families: Life on
the Edge, N.Y. Times (Aug. 31, 1983) ..................11
Sarah Belle Dougherty, Remembering Henry
S. Olcott, The Theosophical Society .......................6
Shane Bauer, I Went Undercover With a
Border Militia. Here’s What I Saw.,
Mother Jones (Nov./Dec. 2016) ..............................8
Soc. of Pro. Journalists, Code of Ethics (2014) ........14
The Execution of John Brown, N.Y. Tribune
(Dec. 3, 1859)...........................................................6
Tiffany Hsu, In-N-Out Dumps California
Slaughterhouse Accused of Abusing Cows,
L.A. Times (Aug. 21, 2012) .....................................9
Video Shows Alleged Criminal Abuse of
Bettencourt Dairy Cows in Idaho,
CBS News (Oct. 11, 2012) ....................................12
W. Keeton, et al., Prosser and Keeton on the
Law of Torts § 42 (5th ed. 1984) ...........................23
Walter Kurtz, The Post Wins 6 Pulitzer
Prizes, The Wash. Post (Apr. 8, 2008) ..................10
1
INTEREST OF AMICI CURIAE1
Amici Curiae are free speech advocacy
organizations,
whistle-blower
protection
organizations, and animal-advocacy organizations.
Amici have an interest in preserving robust
constitutional protections for speech (and the
precursors of speech) and for those who gather news
and report on matters of public concern. Amici take no
position on the specific actions of Petitioners in this
case or the accuracy of their publication of edited
videos. However, amici have a strong interest in
ensuring that journalists, whistleblowers, activists,
and others remain able to use undercover methods to
investigate and report on matters that might
otherwise remain unavailable or inaccessible to the
public, continuing our valuable American tradition of
important journalism conducted using undercover
techniques. Because the decision below threatens this
important tradition, amici urge the Court to grant
certiorari.
Foundation for Individual Rights and
Expression (FIRE) is a nonpartisan, nonprofit
organization dedicated to defending the individual
rights of all Americans to free speech and free
thought—the essential qualities of liberty. Since 1999,
FIRE has successfully defended individual rights
through public advocacy, strategic litigation, and
1 Pursuant to Rule 37.6, amici affirm that no counsel for a
party authored this brief in whole or in part, and that no person
other than amici and their counsel made a monetary
contribution intended to fund the preparation or submission of
this brief. Pursuant to Rule 37.2, amici affirm that counsel of
record received timely notice to the intent to file this brief.
2
participation as amicus curiae in cases that implicate
expressive rights under the First Amendment.
Animal Outlook is a tax-exempt animaladvocacy organization based in Washington, DC.
Animal Outlook’s mission is to change the world for
animals by deploying an arsenal of strategies to
challenge the status quo of animal agribusiness.
Animal Outlook works to expose the truth, deliver
justice, revolutionize food systems, and empower
others to stand up for animals by leaving them off our
plates.
The Freedom of the Press Foundation
(FPF) is a nonprofit organization that protects,
defends, and empowers public-interest journalism.
The organization works to preserve and strengthen
First and Fourth Amendment rights guaranteed to
the press through a variety of avenues, including the
development of encryption tools, documentation of
attacks on the press, training newsrooms on digital
security practices, and advocating for the public’s
right to know. Protecting journalists’ right to gather
and report on newsworthy information is central to
FPF’s mission.
The Government Accountability Project
(GAP) is a nonpartisan, public interest group with
the mission to promote corporate and government
accountability
by
protecting
whistleblowers,
advancing occupational free speech, and empowering
citizen activists. Founded in 1977, GAP is the nation’s
leading whistleblower protection and advocacy
organization. In addition to focusing on whistleblower
support, GAP leads campaigns to enact whistleblower
protection laws both domestically and internationally.
3
INTRODUCTION AND
SUMMARY OF THE ARGUMENT
This case implicates the continuing vitality of
reporting through covert investigative reporting and
deception, which is responsible for some the most
noteworthy and impactful stories and exposés in
American history. This Court should grant a writ of
certiorari because the Ninth Circuit “has decided an
important federal question in a way that conflicts with
relevant decisions of this Court,” U.S. Sup. Ct. R.
10(c), by allowing a judgment based on newsgathering
and reporting on important public issues and giving
insufficient weight to the First Amendment
implications of that decision.
The Ninth Circuit’s decision to ignore the
applicability of First Amendment rights in this
context may be best summarized by its statement that
“infiltration damages and security damages[] were
awarded by the jury to reimburse Planned
Parenthood for losses caused by Appellants’ violations
of generally applicable laws.” Planned Parenthood
Fed'n of Am., Inc. v. Newman, 51 F.4th 1125, 1134
(9th Cir. 2022). But by allowing such liability for
constitutionally protected conduct, the courts below
circumvented
well-established
standards
for
determining whether Petitioners caused a legally
cognizable reputational injury, threatening the ability
of journalists, whistleblowers, activists and others to
investigate and publish important stories. Indeed,
from Mortimer Thompson’s firsthand accounts of the
slave trade leading up to the Civil War, to Nellie Bly’s
graphic translation of her time in Blackwell’s Island
Insane Asylum, to Upton Sinclair’s exposé of the
meat-packing industry, investigative reporting is
4
responsible for bringing to public view some of the
most pressing matters of the last 150 years.
The Ninth Circuit’s decision threatens two
significant aspects of First Amendment protections
that are vital to newsgathering and reporting: First,
undercover investigative reporting on matters of
public concern pursued through investigative
deception is protected speech under the First
Amendment; and second, courts must uphold First
Amendment limits on recoverable damages for nondefamation civil claims arising out of investigative
reporting to avoid chilling undercover newsgathering
and the investigative reporting reliant upon it.
This Court has rejected the view that there is
an exception to the First Amendment for “false
statements.” But the Ninth Circuit in this case
ignored free speech principles and approved a near
categorical common law right to punish persons who
engage in deception-based investigations. If such a
view stands, civil claimants leveraging misapplied
generally applicable laws through litigation will be
able to quash investigative reporting on matters of the
highest public concern. This Court should grant
certiorari to guard against any erosion of the
protections afforded to investigative journalism by the
Constitution.
The First Amendment bars publication and
reputation damages for non-defamation claims. But
this is the very type of harm for which the Ninth
Circuit allowed plaintiffs to recover by upholding their
claim to pursue their costs for increased security
measures. Such costs serve as a stand-in for direct
publication damages and could severely limit
undercover reporting as a result. Added security costs
5
stem from public anger over the revealed conduct, and
they are inseparable from the public’s response to the
published information — underscoring that this is a
matter of public concern.
ARGUMENT
I.
Historically, Undercover Newsgathering
and Reporting Have Been Central to
Democratic Accountability in the United
States.
Since the antebellum period, journalists in the
United States have engaged in undercover or
clandestine newsgathering through omission or
misrepresentation of their true purposes and
identities. This undercover newsgathering of
firsthand facts and observations has resulted in
important and sometimes history-making reporting.
For example, abolitionist activists and northern
journalists reported on slavery in the South through
careful concealment and misrepresentation of their
motives.2
One such undercover journalist documented —
in horrific detail — the sale of black men, women,
children, and infants at a slave auction near
Savannah, Georgia, in 1859, for a series in the New
York Tribune.3 That undercover reporter’s true name
was Mortimer Thompson. He wrote under the pen
name “Q.K. Philader Doesticks” and described for his
See Brooke Kroeger, Undercover Reporting, The Truth
About Deception at 17 (2012).
2
3 Id. at 19–21.
6
readers why he needed to conceal his identity and the
means by which he did so:
Your correspondent was present at an
early date, but as he easily anticipated
the touching welcome that would, at
such time, be officiously extended to a
representative of The Tribune . . . and
not desiring to be the recipient of a public
demonstration from the enthusiastic
Southern populations . . . he did not
placard his mission and claim his honors.
Although he kept his business in the
background, he made himself a
prominent figure in the picture, and,
wherever there was anything going on,
there was he in the midst.4
Months later, another journalist went
undercover to report on the execution of John Brown,
the prominent abolitionist who advocated for armed
insurrection to free slaves and who was the first
person in the history of the United States to be
executed for treason.5 Henry Olcott, a New York
Tribune journalist who volunteered, posed as a
member of the Petersburg Grays, a regiment sent to
Charles Town, Virginia, to guard Brown’s body.6
4 Id. at 24.
5 See The Execution of John Brown at 7, N.Y. Tribune (Dec.
3, 1859), https://undercover.hosting.nyu.edu/files/original/f1d36
593c3eb2643fcc2d3fc5fdd8477dac430cc.pdf [https://perma.cc/4M
LU-2B9L].
6 See Sarah Belle Dougherty, Remembering Henry S. Olcott,
The Theosophical Society, https://www.theosophical.org/compo
7
After the Civil War era, journalists used
similar methods to report on a number of industries.
In the late 1800s, a journalist named Elizabeth Jane
Cochran, working under the pen name Nellie Bly,
routinely used false identities to gain access to
institutions and businesses engaged in unlawful
activity.7 Her most famous exposé resulted from her
posing as a mentally ill person to gain access to
Blackwell’s Island Insane Asylum for women in New
York City, where she uncovered and later wrote about
abusive and violent staff, fire hazards, extremely cold
temperatures, unsanitary practices, terrible food, and
the treatment of foreign-born women who were not
mentally ill but had been committed because others,
including the asylum’s staff, could not understand
them and assumed them to require treatment.8
At the turn of the 20th century, written
eyewitness accounts of the meat-packing industry,
including Upton Sinclair’s novel The Jungle (1906),
triggered a nationwide debate that spurred measures
to protect public health and ensure worker safety.9
Sinclair spent weeks undercover in Chicago’s
meatpacking plants to research the novel, which, by
nent/content/article/65-about-us-sp-709/olcott/1857remembering-hs-olcott [https://perma.cc/D62L-RUYL].
See generally Brooke Kroeger, Nellie Bly: Daredevil,
Reporter, Feminist (1994).
7
8 See generally Nellie Bly, Ten Days in a Mad-House (1887).
9 See, e.g., David Greenberg, How Teddy Roosevelt Invented
Spin, The Atlantic (Jan. 24, 2016), https://www.theatlantic.com/
politics/archive/2016/01/how-teddy-roosevelt-invented-spin/4266
99/ [https://perma.cc/QS48-957E]; Karen Olsson, Welcome to The
Jungle, Slate (July 10, 2006) https://slate.com/culture/2006/07/
upton-sinclair-s-the-jungle.html [https://perma.cc/B5LK-UJBF].
8
exposing the industry’s harsh, inhumane, and
unsanitary working conditions, produced an
unprecedented response.10 Indeed, Congress enacted
the Meat Inspection Act, Pub. L. No. 59-242, 34 Stat.
1260 (1907) (codified as amended at 21 U.S.C. §§ 601–
695), and the Pure Food and Drug Act, Pub. L. No. 59384, 34 Stat. 768 (1906) (codified as amended at 21
U.S.C. §§ 301–399f), following Sinclair’s work.
In later decades, journalists engaged in
undercover reporting to tell all manner of stories. For
example, in 1978, the Chicago Sun-Times published a
series of stories that exposed corruption by city
inspectors based on reporting by undercover
journalists who surreptitiously bought and operated a
bar, The Mirage Tavern.11 In 2016, Mother Jones
published an account of paramilitary militias on the
U.S. border by a reporter who joined a militia
undercover.12
In recent years, journalists and researchers
have continued to use undercover methods to report
on conditions at animal production facilities, taking
advantage of new recording technologies to revive old
debates. In California, for example, an undercover
investigator working with amicus Animal Outlook,13
recorded video footage in a facility that supplied the
10 See Kroeger, supra note 2 at 83–91.
11 Kroeger, supra note 2 at 257–80.
12 Shane Bauer, I Went Undercover With a Border Militia.
Here’s What I Saw., Mother Jones (Nov./Dec. 2016), https://www.
motherjones.com/politics/2016/10/undercover-border-militiaimmigration-bauer/ [https://perma.cc/M96X-AQKB].
13 Animal Outlook was known as Compassion Over Killing at
the time of this investigation.
9
National School Lunch Program and a popular
restaurant chain showing inhumane handling of cows,
including some who could no longer walk being shot
in the head over and over, then having their mouths
and nostrils stood upon until they suffocated to death.
The video led the federal government to shut down the
facility temporarily and the chain to sever ties with
it.14
At bottom, whatever the subject of reporters’
interests, there is no question that undercover
newsgathering has been and remains central to this
country’s debates on matters of public concern—
speech at the First Amendment’s core—since at least
the mid-1800s.
II.
Deceptive Techniques Are Necessarily
Employed by Journalists and Others
Engaged in Undercover Newsgathering
Today.
Journalists
engaged
in
undercover
newsgathering today routinely and necessarily
engage in deception to access facts hidden from public
view and to enable them to tell an accurate story.
Building on the legacy of reporters like Mortimer
Thompson and Nellie Bly, journalists engaging in
investigative deception have exposed poor medical
care of wounded veterans, inhumane living conditions
in welfare hotels, racial animosity and discrimination
at industrial facilities, and the mistreatment of
14 Tiffany Hsu, In-N-Out Dumps California Slaughterhouse
Accused of Abusing Cows, L.A. Times (Aug. 21, 2012),
https://www.latimes.com/business/la-fi-mo-in-n-out-cattle-slaug
hterhouse-20120821-story.html [https://perma.cc/UWG7-EY9K].
10
animals intended to be kept as pets or raised in the
animal agriculture industry.
In 2007, The Washington Post published an
exposé of conditions at Walter Reed National Military
Medical Center.15 To accomplish their reporting over
four months, reporters Dana Reed and Anne Hull and
their photographer Michel du Cille posed as regular
visitors and sometimes trespassed into patient-only
areas with recording equipment.16 This investigative
series revealed “signs of neglect everywhere” at
Walter Reed Medical Center: “mouse droppings, bellyup cockroaches, stained carpets, cheap mattresses,”
and a general indifference to the soldiers under care
at the facility.17 The series resulted in the firing of the
Secretary of the Army and officials responsible for
Walter Reed.18 As a result of the series, the Post won
the Pulitzer Prize for Public Service in 2008.19
These reporters were hardly unique in their use
of deception to enable undercover newsgathering: In
just the two decades preceding the Walter Reed
15 Dana Reed & Anne Hull, Soldiers Face Neglect, Frustration
at Army’s Top Medical Facility, The Wash. Post (Feb. 18, 2007),
https://www.washingtonpost.com/archive/politics/2007/02/18/sol
diers-face-neglect-frustration-at-armys-top-medical-facility/c0c
4b3e4-fb22-4df6-9ac9-c602d41c5bda/ [https://perma.cc/9344-AU
U2].
16 Walter Kurtz, The Post Wins 6 Pulitzer Prizes, The Wash.
Post (Apr. 8, 2008), https://www.washingtonpost.com/wp-dyn/
content/article/2008/04/07/AR2008040701359.html [https://perm
a.cc/648X-MVDY].
17 Reed & Hull, supra note 15.
18 Kurtz, supra note 16.
19 Id.
11
exposé, reporters engaged in deception to reveal living
conditions in welfare hotels,20 working conditions in
New York sweatshops,21 working conditions of lowwage retail jobs in the United States,22 and the
availability of drugs in prisons.23
Reporters and investigators partnering with
activist organizations have done similarly. For
example, an investigator for amicus Animal Outlook
obtained employment at a Tyson Foods contractor in
Virginia and documented and exposed workers
“crushing and stomping on chicks,” “beating chickens
to death,” and impaling injured birds on nails stuck
into pipes.24 The investigation resulted in the firing of
20 Philip Shenon, Welfare Hotel Families: Life on the Edge,
N.Y. Times (Aug. 31, 1983), https://www.nytimes.com/1983/
08/31/nyregion/welfare-hotel-families-life-on-the-edge.html
[https://perma.cc/MM8K-EYMV].
21 Jane H. Li, 65 Cents an Hour—A Special Report: Week in
Sweatshop Reveals Grim Conspiracy of the Poor, N.Y. Times
(Mar. 12, 1995), https://www.nytimes.com/1995/03/12/nyregion
/65-cents-hour-special-report-week-sweatshop-reveals-grimconspiracy-poor.html [https://perma.cc/QV65-9G2R].
22 See generally Barbara Ehrenreich, Nickel and Dimed: On
(Not) Getting By in America (2001).
23 Athelia Knight, Drug Smuggling and Hot Goods: A Ride on
Prison Visitors’ Buses, The Wash. Post (Mar. 4, 1984), https://
www.washingtonpost.com/archive/politics/1984/03/04/drugsmuggling-and-hot-goods-a-ride-on-prison-visitors-buses/f7e
604db-70ca-40cb-8f06-9d837a043d94/ [https://perma.cc/96G2-SZ
74].
Justin Wm. Moyer, ‘You Need to Kill Him?’: Tyson Food
Contractors Caught on Video Mistreating Chickens, The Wash.
Post (Dec. 6, 2017), https://www.washingtonpost.com/local/youneed-to-kill-him-tyson-food-contractors-caught-on-video24
12
10 employees and the termination of the facility’s
contract.25
Similarly, an investigator with Mercy for
Animals worked for a dairy in Idaho and recorded
workers deliberately beating, kicking, and punching
dairy cows.26 This investigation led the Idaho
Dairyman’s Association to draft and urge the adoption
of a statute criminalizing this very type of
investigation.27 See Id. Rev. Stat. § 18-7042. This
statute was partially invalidated by the U.S. Court of
Appeals for the Ninth Circuit, because it would work
as an unconstitutional infringement on the ability of
reporters to engage in deceptive practices necessary to
undercover newsgathering and reporting. See Animal
Legal Def. Fund v. Wasden, 878 F.3d 1184, 1199 (9th
Cir. 2018).
These examples illustrate that undercover
newsgathering and reporting by investigative
deception promotes public discussion of matters of
profound public concern and uncovers important facts
that otherwise would remain hidden to the public.
mistreating-chickens/2017/12/06/35ec4f58-d9fa-11e7-94b582a81b0f862e_story.html [https://perma.cc/868V-GAMF].
25 Id.
26 Video Shows Alleged Criminal Abuse of Bettencourt Dairy
Cows in Idaho, CBS News (Oct. 11, 2012), https://www.
cbsnews.com/news/video-shows-alleged-criminal-abuse-of-bett
encourt-dairy-cows-in-idaho/ [.
27 Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195,
1199 (D. Idaho 2015), aff’d in part, rev’d in part sub nom. Animal
Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018).
13
III.
The Ninth Circuit’s Decision Gives
Insufficient Weight to the Important First
Amendment Issues at Stake in this Case.
The
First
Amendment
prohibits
the
government from “abridging the freedom of speech, or
of the press.” U.S. Const. amend. I. The protection of
this fundamental liberty comes from a “profound
national commitment to the principle that debate on
public issues should be uninhibited, robust, and wideopen.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270
(1964). In that way, the First Amendment seeks “to
ensure that the individual citizen can effectively
participate in and contribute to our republican system
of self-government,” Globe Newspaper Co. v. Sup. Ct.,
457 U.S. 596, 604 (1982).
This case implicates two significant aspects of
First Amendment protections vital to newsgathering
and reporting: First, the First Amendment protects
“false statements” such that undercover investigative
reporting pursued through investigative deception
(either by omissions or other misrepresentations) to
gain access is protected speech; and second, First
Amendment limits on recoverable damages for nondefamation civil claims arising out of investigative
reporting must be respected or else excessive civil
damages awards and injunctions for reputation- or
publication-type harm will chill undercover
newsgathering and the investigative reporting reliant
upon it.
14
A.
The use of deception for undercover
investigative
reporting
is
constitutionally protected speech.
Famous undercover newsgathering and
reporting28 has often been possible only through the
use of deception to gain access to knowledge otherwise
effectively hidden from public view. Deception, on
some level, is oftentimes necessary to facilitate or
produce the truth.29 But that compels a question:
28 This brief sometimes refers to newsgathering and
sometimes refers to investigative reporting. While there is a
distinction between these activities, it is not a constitutionally
significant one. Newsgathering is protected by the First
Amendment because, “without some protection for seeking out
the news, freedom of the press could be eviscerated.” Branzburg
v. Hayes, 408 U.S. 665, 681 (1972). Cf. Citizens United v. FEC,
558 U.S. 310, 352 (2010) (“With the advent of the Internet and
the decline of print and broadcast media . . . the line between the
media and others who wish to comment on political and social
issues becomes far more blurred.”).
Although valuable news stories are obtained through
undercover reporting techniques, media ethicists urge
journalists to consider other newsgathering options and to use
deception only when “traditional, open methods will not yield
information vital to the public.” Society of Professional
Journalists,
Code
of
Ethics
(2014)
(SPF
Code),
https://www.spj.org/ethicscode.asp
[https://perma.cc/3RBJRDB9]; see also Bill Kovach & Tom Rosenstiel, The Elements of
Journalism at 120–21 (3d ed. 2014); Greg Marx, The Ethics of
Undercover Journalism, Colum. Journalism Rev. (Feb. 4, 2010),
https://archives.cjr.org/campaign_desk/the_ethics_of_undercover_journalism.php [https://perma.cc/L6SS-284E]. The SPJ Code is
an aspirational guide and “is not, nor can it be under the First
Amendment, legally enforceable.” SPF Code (footer). Ethical
decisions necessarily rest with media organizations themselves,
not with litigants or judges.
29
15
When is investigative deception protected speech?30
The Ninth Circuit ignored free speech principles by
deciding that the First Amendment did not apply to
Petitioners’ actions simply because they violated laws
of general applicability. In doing so, it presumed that
engaging in constitutionally protected speech, with
the goal of shedding light on a question of public
interest, can give rise to legally cognizable harms
under unrelated laws, such as property harms under
a trespass statute. Planned Parenthood Fed’n of Am.,
51 F.4th at 1134. The Ninth Circuit’s presumption
conflicts with (1) this Court’s clear holding that
falsehoods constitute protected speech, (2) a primary
goal of the First Amendment, which is to facilitate
truth-seeking, and (3) the long-standing and deeply
beneficial practice of undercover investigations.
This Court has rejected the view that there is a
“general exception to the First Amendment for false
statements.” United States v. Alvarez, 567 U.S. 709,
717 (2012) (plurality op.); id. at 729 (Breyer, J.,
concurring). Alvarez involved the constitutionality of
the Stolen Valor Act and, specifically, whether to
invalidate the conviction of a person who lied about
having been awarded the Congressional Medal of
Honor. Id. at 713. To be sure, the false statement in
Alvarez was “a pathetic attempt to gain respect that
eluded [Alvarez],” id. at 714—and the government
alleged a variety of harms to the military community
30 See generally Alan K. Chen & Justin Marceau, High Value
Lies, Ugly Truths, and the First Amendment, 68 Vand. L. Rev.
1435 (2015).
16
when its honors are “dilut[ed]” by those who falsely
claim to hold them, id. at 724–25.
Despite this, six justices recognized that even a
truth-impeding lie is protected by the First
Amendment unless it causes legally cognizable harm
to the deceived party. Id. at 722; id. at 729 (Breyer, J.,
concurring). Both the plurality and concurring
decisions shared the view that punishing “falsity
alone” is impermissible; rather, the government may
regulate false speech only when there is some “intent
to injure,” or more precisely, some intent to cause a
“legally cognizable harm” protected by the law. Id. at
718. And, as the plurality made plain, “[t]here must
be a direct causal link between the restriction imposed
and the injury to be prevented.” Id. at 725. Because
there was an insufficient link between the false
statements about military honors and the dilution of
the public’s perception of such honors, the Court
rejected the government’s claim of harm. Id.
Moreover, Alvarez leaves no doubt that lies do
not become nonspeech or unprotected simply because
they result in changed behavior or different outcomes
based on reasonable reliance on the deception. Lies
frequently cause listeners to act differently, or change
their minds, but this is not a reason to deprive the
speech of protection. Indeed, even when the stakes are
highest, and the integrity of a statewide election is at
issue, “fake news” or deceptive political speech will
often be protected. See id. at 738 (Breyer, J.,
concurring) (noting in the political context a “false
statement is more likely to make a behavioral
difference (say, by leading the listeners to vote for the
speaker) but at the same time criminal prosecution is
particularly dangerous”). So it is clear after Alvarez
17
that false statements enjoy First Amendment
protection unless they cause direct, legally cognizable
harm.
Thus, harm resulting from the exposure of an
investigative subject’s own conduct is not a legally
cognizable harm under Alvarez. And as might be
expected given this country’s tradition of undercover
newsgathering, deception used by journalists,
activists, and whistleblowers to gain access to private
property—e.g.,
omitting
or
affirmatively
misrepresenting
political,
organizational,
or
journalistic affiliations, or affirmatively understating
certain educational backgrounds—rarely causes
cognizable legal injury where it is done in the service
of investigative reporting. Investigative reporting
exposes perceived societal ills, which certainly may
result in negative economic consequences after bad
publicity for those engaged in objectionable conduct.
But this harm is traceable first and foremost to the
objectionable conduct itself, and only then to its
publication and the advocacy that is often enabled (or
emboldened) by such publication, not to the use of
deception to gain access.
Imagine the perverse—and speech chilling—
outcomes if cognizable harm from the publication of
the content of an investigation could be punished at a
level corresponding to its public significance. If the
undercover investigation exposes nothing of public
interest (or indeed conduct perceived as salubrious to
or consistent with the good of the public at large),
damages would be minimal. Yet an investigation that
exposes fraud, abuse, malfeasance, or criminality,
could expose the reporter to ruinous damages. That is
18
no way to uphold the vital role undercover reporting
plays in informing the public debate.
Mere investigative deception, without more,
does not constitute the type of legally cognizable harm
contemplated by Alvarez. “[T]he liar who causes no
trespass-type harm—the restaurant critic who
conceals his identity, the dinner guest who falsely
claims to admire his host, or the job applicant whose
resume falsely represents an interest in volunteering,
to name a few—is not guilty of trespassing (because
no interference has occurred).” Animal Legal Def.
Fund v. Herbert, 263 F. Supp. 3d 1193, 1203 (D. Utah
2017). Likewise, investigative deception does not
vitiate consent in the trespass context such that
deception-based access to private property necessarily
infringes on property interests in a way that could
produce a legally cognizable harm. See, e.g., Food
Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505,
518 (4th Cir. 1999); Desnick v. Am. Broad. Cos., Inc.,
44 F.3d 1345, 1351–52 (7th Cir. 1995) (Posner, J.);
Baugh v. CBS, Inc., 828 F. Supp. 745, 757 (N.D. Cal.
1993).31
This lack of legally cognizable harm is most
acute in the context of “ag-gag” statutes. For over a
decade, commercial food producers have lobbied states
to criminalize and create private rights of action for
deceptive access to slaughterhouses, factory farms,
31
That is not to say newsgatherers who use investigative
deceptions to access private property and intentionally cause
specific physical harm or tangible damage to the property, or
persons, do not cause legally cognizable harm. See Wasden, 878
F.3d at 1199.
19
and other industrial farming operations in response to
animal-advocacy
organizations
videoing
and
publishing the conduct of persons working in these
facilities. These laws are an overt attempt to
criminalize investigative deception to the benefit of
one industry and the detriment of the public.
Fortunately, courts have been steadfast in
invalidating many of the laws on First Amendment
grounds. See, e.g., Wasden, 878 F.3d at 1184 (Idaho);
People for the Ethical Treatment of Animals, Inc. v.
N.C. Farm Bureau Fed’n, Inc., 60 F.4th 815 (4th Cir.
2023) (North Carolina); Animal Legal Def. Fund v.
Kelly, 9 F.4th 1219 (10th Cir. 2021) (Kansas), cert.
denied, 142 S. Ct. 2647 (2022); Animal Legal Def.
Fund v. Reynolds, 8 F.4th 781 (8th Cir. 2021)
(upholding access restriction, but finding employment
provision violated free speech clause); Herbert, 263 F.
Supp. 3d at 1193 (Utah).
But ag-gag laws are only one example of the use
of the law to inhibit newsgathering. And the decisions
of this Court safeguarding free speech against
targeted attacks by legislatures will become hollow,
Pyrrhic victories if any investigator who uses omission
or affirmative deception to uncover facts of public
significance can be subjected to potentially
bankrupting tort claims for engaging in undercover
investigations. If civil claimants can leverage
misapplied generally applicable laws and accomplish
the same objective—to chill investigative reporting—
journalists, activists, and whistleblowers speaking on
matters of the highest public concern are no better off.
Cf. Snyder v. Phelps, 562 U.S. 443, 457 (2011)
(reversing $10-plus million jury verdict and stating
20
“[i]t was what Westboro said that exposed it to tort
damages” under generally applicable laws).
This Court should grant certiorari and guard
against any erosion of the protections afforded to
investigative deceptions by the Constitution whether
they come by industry-sponsored statutes or
retaliatory litigation.
B.
First Amendment limits on tort
damages are vital to protecting
undercover reporting on public issues.
Even if the Ninth Circuit’s sweeping conclusion
is correct—that seemingly all deception-based
undercover investigations can be actionable because
they violate laws of general applicability—the
damages theories allowed by the court run afoul of the
First Amendment.
Broadly speaking, private investigative
subjects displeased with the public airing of their
secrets and back-room conduct have two forms of
recourse in court. They can sue under defamation
theories, which, to some degree, require proof of
falsity and a level of fault on the part of the speaker.32
Or, they can sue under non-defamation theories and
avoid questions of truthfulness and traditional
defamation defenses. See, e.g., Food Lion, 194 F.3d at
522 (“Food Lion . . . understood that if it sued ABC for
defamation it would have to prove that the PrimeTime
32 For example, defamation liability may be possible for video
footage if the footage is edited so as to be intentionally
misleading. See Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1138 (10th Cir. 2014).
21
Live broadcast contained a false statement of fact that
was made with ‘actual malice’ . . . It is clear that Food
Lion was not prepared to offer proof meeting the New
York Times standard.”); Planned Parenthood Fed’n of
Am., Inc. v. Ctr. for Med. Progress, 402 F. Supp. 3d
615, 643 (N.D. Cal. 2019) (noting plaintiffs’ decision to
bypass defamation claim). This choice, however,
comes at a cost: Civil claimants may not recover for
defamation-type damages (i.e., publication and
reputation damages) through non-defamation
theories. Hustler Magazine v. Falwell, 485 U.S. 46, 56
(1988) (rejecting attempt to seek damages under tort
theory to avoid First Amendment limitations on
defamation claims).
This latter point is well accepted; so much so
that plaintiffs in this case disclaimed any reputational
damages. See Planned Parenthood Fed’n of Am., 402
F. Supp. 3d at 642 n.13 (quoting plaintiffs disclaiming
“reputational damages such as loss of goodwill or loss
of revenue” and “expenses to protect [Planned
Parenthood’s] brand and reputation”). And the district
court confirmed the First Amendment bars plaintiffs
from recovering “publication or reputational
damages” here. Id. at 644. In doing so, the district
court acknowledged the “inconsistent analyses of the
line between impermissible reputational or
publication damages and allowable economic or
pecuniary damages,” id., but nonetheless allowed two
specific categories of damages totaling more than
$468,000—“personal
security
damages”
for
heightened personal security for certain staff who
were the subjects of the released videos, and “accesssecurity improvement damages” for improvements to
22
conference and event security. Id. at 645.33 In the
court’s view, these damages were not properly
considered reputational or publication damages;
rather, the damages resulted “from the direct acts of
defendants”—namely,
“their
intrusions,
their
misrepresentations, and their targeting and
surreptitious recording of plaintiffs’ staff.” Id. at 644.
For support, the district court looked to the
Supreme Court’s decision in Cohen v. Cowles Media
Co., 501 U.S. 663 (1991). There, the Court cleared the
way for a political campaign aide to recover under a
promissory estoppel claim against a newspaper after
the paper (truthfully) published his name as an
informant, despite agreeing to confidentiality. Id. at
665–66, 670. Cohen did not seek “damages for injury
to his reputation or his state of mind’’—he knew he
could not satisfy “the strict requirements for
establishing a libel or defamation claim,” because the
disclosed information was true—but instead “sought
damages . . . for breach of a promise that caused him
to lose his job and lowered his earning capacity.” Id.
at 671. In allowing the claim, the Court distinguished
Hustler Magazine, where it rejected a public figure’s
attempt to recover emotional harm (reputational
damages) under the tort of intentional infliction of
emotional distress. Id.
The district court’s articulation of recoverable
damages in this case, which was fully endorsed by the
Ninth Circuit (with the exception of a damages claim
under the Federal Wiretap Act), puts a fine point on
the need for definite standards to identify the types of
damages available to civil claimants who elect to avoid
33 The court also allowed nominal and statutory damages. Id.
23
the constitutional—and common law—prerequisites
for defamation claims. That is, a need to specifically
distinguish
between
damages
caused
by
constitutionally protected speech (i.e., exposing facts
from
an
undercover
investigation
through
publication) and damages caused by something other
than protected speech.
On this point, injuries borne of publication on
issues of public concern, and the concomitant public
discourse that results, are not legally cognizable
because they cannot fairly be traced exclusively to the
investigative deceptions that created the opportunity
for the exposure, but rather to the conduct exposed by
those deceptions. Thus, the investigative deception is
not the legal or proximate cause of the injuries. See
CSX Transp., Inc. v. McBride, 564 U.S. 685, 692
(2011) (“The term ‘proximate cause’ is shorthand for a
concept: Injuries have countless causes, and not all
should give rise to legal liability.”) (citing W. Keeton,
et al., Prosser and Keeton on the Law of Torts § 42 (5th
ed. 1984)); see also Nathan Siegel, Publication
Damages in Newsgathering Cases, 19 Comm. Law at
11, 15 (2001) (noting “proximate cause is a
particularly suitable means for resolving claims for
publication damages”). The First Amendment cannot
countenance a system of law in which exposure of
putative misdeeds—even by deception—is judged to
be the actionable cause of injuries to the bad actor,
rather than the potential misdeeds themselves, and
the investigator who exposes the putative misdeeds
must pay the bad actor, rather than the bad actor
paying the piper.
Any other rule would leave investigative
reporters prostrate before the financially and
24
politically powerful. Indeed, if left standing, the Ninth
Circuit’s decisions on recoverable damages will be a
roadmap for investigative subjects to sue journalists,
activists, and whistleblowers to chill their undercover
investigative work. It requires little imagination to
duplicate the successful prosecution strategy in this
case. Going forward, in response to damning
undercover reporting and to pad large awards
investigative subjects may:
•
•
•
•
hire security and employment consultants to
overhaul access-security;
hire private investigators to vet employees
(both current and prospective) and third-party
vendors;
implement other access-control measures, such
as ID systems, surveillance, etc.; and
hire private security for key company
executives and the named wrongdoers.
These heightened security measures are a
direct response to the very issue being investigated.
Absent the subject’s fear that more people will engage
in deception in order to report, the security would not
be an issue.
Most concerning, the additional costs to
inoculate these persons against public scrutiny,
inextricably tied to reputational or publication harms,
will actually be recoverable in lawsuits against the
newsgatherers who exposed the bad behavior. See
Planned Parenthood Fed'n of Am., 51 F.4th at 1134
(“The two categories of compensatory damages
permitted by the district court, infiltration damages
and security damages, were awarded by the jury to
reimburse Planned Parenthood for losses caused by
25
Appellants' violations of generally applicable laws.”).
This “exception” to this Court’s First Amendment
doctrine threatens to swallow rules necessary for
undercover reporting.
Again, this case serves as the blueprint.
Plaintiffs prosecuted 15 claims against defendants—
from RICO and federal wiretapping claims, to
trespass and fraud claims—in a case that has spanned
more than seven years (and counting), generated over
1150 docket entries, and resulted in a five-week jury
trial. See Planned Parenthood Fed’n of Am., Inc. v.
Ctr. for Med. Progress, 613 F. Supp. 3d 1190, 1195
(N.D. Cal. 2020). Bringing a case of this magnitude
and scope demands legions of attorneys. And that’s
certainly true here. “More than 130 attorneys worked
on the case for plaintiffs and 22 of them billed more
than 250 hours each.” Planned Parenthood Fed’n of
Am., Inc. v. Ctr. for Med. Progress, No. 16-CV-00236WHO, 2020 WL 7626410, at *1 (N.D. Cal. Dec. 22,
2020). All told, plaintiffs sought recovery for
21,200.25 hours of time and were awarded nearly
$13.5 million in attorneys’ fees and costs in
addition to damages.
It will take little legal imagination to imitate
plaintiffs’ strategy if the Ninth Circuit’s judgment is
affirmed. But few independent investigative reporters
and advocacy organizations (those most often engaged
in undercover work) could withstand such an assault.
Even relatively well-heeled media outlets skilled in
investigative reporting are likely to consider whether
undercover work in the Ninth Circuit is worth the
risk. To be clear, organizations considering an
undercover investigation now face the specter of
potentially debilitating liability because they
26
investigated suspected misconduct on a matter of
public concern.
In the end, if investigative reporting is to have
any role in exposing fraud, abuse, malfeasance, and
criminality, or facilitating dialogue and debate on
matters of great public concern as it has for over a
century, First Amendment limits on recoverable
damages for non-defamation civil claims must be
vigorously enforced.
CONCLUSION
For the reasons above, this Court should grant
review to examine the important First Amendment
issues at stake that were largely ignored or
misapplied by the courts below.
July 3, 2023
Respectfully Submitted,
GREGG P. LESLIE
Counsel of Record
ZACHARY R. CORMIER
Arizona State University
Sandra Day O’Connor
College of Law, First
Amendment Clinic,
Public Interest Law Firm
111 E. Taylor St., MC 8820
Phoenix, AZ 85004
Gregg.Leslie@asu.edu
(480) 727-7398
27
JUSTIN MARCEAU
University of Denver, Sturm
College of Law
2255 E. Evans Avenue
Denver, CO 80208
GABE WALTERS
JT MORRIS
Foundation for Individual
Rights and Expression
700 Pennsylvania Ave., SE
Suite 340
Washington, DC 20003
PIPER HOFFMAN
Animal Outlook
P.O. Box 9773
Washington, D.C. 20016
AMANDA HITT
Director
Government Accountability
Project
1612 K Street, NW
Suite 1100
Washington, DC 20006
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.