Twitter updated their policies this week, which no longer allows the sharing of media without people’s prior consent. This from Twitter safety: “Beginning today, we will not allow the sharing of private media such as video of individuals without their consent. Twitter also says it will “try to assess the context in which the content is shared,” and “if a particular image and the accompanying tweet adds value to public discourse or is shared in the public interest,” it will be allowed.
The exception they provide is subjective, political, and one that will inevitably be applied unequally. With this policy Twitter is essentially banning journalism. It’s also a direct attack on organizations like us, like Project Veritas. Now all of this comes on the heels of a Department of Justice filing with a federal judge last week arguing we’re not journalists. Why? Well, the government argued that our reporting, “consists almost entirely of publicizing, non-consensual, surreptitious recordings.”
There’s that consensual word again, just like the new Twitter policy, but here’s the thing: good journalism requires publishing what someone else doesn’t want published, making public disclosures others want kept secret for the wrong reasons. Anything else you do is just public relations and public relations is not journalism.
In fact, the Reporters Committee for Freedom of the Press is currently asking the government questions about why the FBI raided the homes of reporters at Project Veritas, and in a court proceeding this week, a lawyer for Reporters Committee for Freedom of the Press, Katie Townsend, said before the magistrate judge and cited Chief Justice Berger, from another case, saying, “It’s difficult for the public to accept what it’s prohibited from observing,” and by the way, thank you Reporters Committee for Freedom of the Press. Thank you, lawyer Katie Townsend for defending principles, defending journalism, defending investigative reporting.
Thanks to the ACLU for coming to our defense in recent weeks. I’m getting ready to release a new book called American Muckraker next month. It’s an eye-opening glimpse into undercover reporting as seen by the muckrakers who defend press freedoms and a brave new world of video journalism. American history is replete with award-winning journalists who have used undercover reporting to seek truth, uncover corruption, and bring their stories to the world. Mike Wallace of 60 Minutes, William Gaines of the Chicago Sun-Times, Pam Zekman, just to name a few. There’s a whole chapter called privacy in my forthcoming book, which outlines a lot of this.
Sissela Bok an expert in ethical journalism wrote, “It would be wrong to conclude that journalists ought to write only about persons who have given their consent. Those who use secrecy to cover up for abuse is often resort to spurious claims that privacy, confidentiality or national security it’s important for reporters not to take those claims at face value.” Some experts have argued that the ability to record something, as long as you’re next to the person you’re talking to, is closely connected to the ability to write and speak.
In fact, a Michigan appeals court argued in a 1982 case, “A recording made by a participant is nothing more than a more accurate record of what was said. Legal scholar Laurence Tribe has argued that the public’s right to know “means nothing more than a mirror of such a right to speak, a listener’s right that government not interfere with a willing speakers liberty.” If you think about it, a recording device is just a sophisticated piece of note taking equipment, and one of the lawsuits we’ve won before a federal jury trial -and by the way, you don’t know that because it’s never reported in the media and it’s certainly not on our Wikipedia page- A federal judge made the case for covert recording.
In a rare Rule 50 Directed Verdict, Judge Reidinger, a federal judge, pointed out to the people suing us and their attorney, Dixie Wells, that there was no distinction between a recording and, say, the taking of notes, and here’s a transcript, again, in my forthcoming book. Said the judge, “James O’Keefe says we go out there, we interview people, we find out what the facts are and report the facts that we learn.” The lawyer’s response, “Your honor, you’ve called it an interview, and I may have slipped and called it that as well. This was taped at a bar in different places, where the person did not know they were being interviewed,” and the judge’s response to that lawyer, “but he knew he was being asked questions.”
You see, without a recording device, the facts sometimes get distorted. In the 1906 magazine article titled “Is the Jungle True?” Upton Sinclair, you all know who he is, the most famous muckraker of all time, conceded that he had presented a selected version of the truth, having reserved the right to “dramatize and interpret” what he reported. But with video, the speaker’s cadence, inflection, and tonality, as well as other important context captured in a recording, limit people to, “interpret.”
For Twitter to ban surreptitious audio and video recordings entirely, and for the government to consider that not journalism, would only remove information from the public sphere that offers a more accurate depiction of what actually occurred. Or, as another State Supreme Court has held, “Society would not consider reasonable an expectation of privacy which would result in a more inaccurate version of the events in question.”
Another expert on journalism we cite currently teaches at Stanford University, Theodore Glasser, who literally wrote a book called Ethical Journalism, and he vigorously defended the use of concealed recordings, which comes into conflict of what Twitter is policy now says, which is your broadcasting videos of individuals without their consent should be prohibited. As Glasser puts it, “The use of a concealed tape recorder, at least when one party is present-“That means when you’re with the person you’re recording, “It’s not nearly the moral quandary its opponents would have us believe; it is not an invasion of privacy, it is not an active deception, it is not a form of eavesdropping, and it does not constitute entrapment.”
So, what then is the problem with photographing and recording people that you’re with? The newest attack on this type of journalism is that it harms people. The Twitter statement says as much. It says it could be, “threatening to broadcast images without people’s consent.” We saw that with our story in California, involving a teacher who said into a hidden camera at a coffee shop, he wanted to “scare the fuck” out of kids. By the way, that’s a direct quote.
As a result of our reporting, and the parental outrage that subsequently followed, that teacher Gabriel Gipe was ultimately removed from the school. Parents made informed decisions in their communities and the correct outcome occurred. It wasn’t an outcome that we advocated for. We quoted the man and people in this society have to make informed decisions about the information, but corporate media was not willing to identify his name in subsequent media coverage in order to protect him. This from the Sacramento Bee, “The Sacramento Bee is not identifying the teacher because he has received threats. And it is unclear whether he consented to be recorded by Project Veritas.
There’s that word again, “consent.” We’ve seen it with the US government. We’ve seen it with Twitter’s policy, and this was after he said he wanted to scare children. You can see the irony in that. Now, reporting is becoming about safety of the people committing malfeasance, but in gathering truthful information, in the course of his or her duties, the journalist will affect certain individuals in a negative way.
In pursuing the right to know, this is almost inevitable. As former Washington Post editor, Leonard Downie writes in a book called The New Muckrakers, “The investigative reporter must face the fact that his stories will hurt people.” Isn’t it interesting that all the sources I cite are from decades ago? Maybe real journalism is falling out of fashion.
In fact, 20 years ago in a seminal Supreme Court case, Bartnicki v. Vopper, Justice John Paul Stevens argued that the First Amendment provides protection even to speech that disclose the contents of an illegally intercepted communication, “Exposure of self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and the press.” Does Twitter think they’re now above the United States Supreme Court, because what must never be forgotten is that in a free society, a free Republic like ours, protecting the people’s right to know is necessary if citizens are to make informed decisions.
Whether it’s Upton Sinclair using his pencil or a Project Veritas journalists using a button camera, we honor a tradition as old as the Republic itself with concepts that go back to Cicero. Critics of surreptitious recordings seem more troubled by the medium than with the findings. Video can be unflattering, but then again, the truth can be unflattering. So do not be fooled by a narrative about privacy, consent, and safety. These are not legitimate arguments as legendary 60 Minutes producer, Don Hewitt said decades ago, “People committing malfeasance don’t have any right to privacy. What are we saying that Upton Sinclair shouldn’t have smuggled his pencil in?”