Commentary Media

David Daleiden Is Not an Investigative Reporter, Says New Legal Filing Confirming What We Knew Already

Sharona Coutts

An amicus brief filed in a federal court case provided an opportunity for journalists to state in clear terms why David Daleiden's claims to be an investigative reporter endanger the profession and its goal: to safeguard democracy by holding the powerful to account and keeping the public informed.

Last week, 18 of the nation’s preeminent journalists and journalism scholars put their names to a filing in a federal court case between the National Abortion Federation and the Center for Medical Progress, the sham nonprofit set up by anti-choice activist David Daleiden.

From the minute he released his deceptively edited videos, Daleiden has styled himself as a “citizen” or “investigative journalist.” Indeed, upon releasing the footage, Daleiden changed the stated purpose on the website of the Center for Medical Progress to be about investigative reporting instead of tissue brokering, as he had earlier claimed.

The amicus brief provided an opportunity for journalists to state in clear terms why David Daleiden’s claims to be an investigative reporter endanger the profession and its goal: to safeguard democracy by holding the powerful to account and keeping the public informed.

“By calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so,” the journalists and academics wrote. “We believe that accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society.”

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The signatories included former and current professors and deans from the nation’s top journalism schools, who have collectively trained hundreds, if not thousands, of reporters. They included women and men with storied careers in investigative journalism, whose credentials to speak with authority about what journalism is and how we do it cannot be doubted.

Their message is clear: David Daleiden is not an investigative journalist, and what he did is, in fact, at odds with the fundamentals of our craft.

Daleiden’s motivation for claiming the status of an investigative reporter is clear. In order to avoid financial ruin and potential jail time, he seeks to cloak himself in the protection of the First Amendment, arguing that everything he did was in his capacity as a reporter, and that the Constitution protects him as a member of the free press.

In so doing, Daleiden threatens to inflict yet more damage than his campaigns have already done, this time to the field of journalism. For if the court were to accept Daleiden’s claims, it would be endorsing his message to the public—that journalists routinely lie, break the law, get people drunk in order to elicit information, and distort quotes and video footage so dramatically that people appear to be saying the exact opposite to what they said. What hope would reporters then have of preserving the already tenuous trust that the public places in our word and our work?

This is not the first time some of the nation’s most decorated reporters have carefully reviewed Daleiden’s claims and the techniques he used to gather the footage for his videos, and concluded that he is not a reporter.

Last month, the Columbia Journalism Review published an article titled “Why the undercover Planned Parenthood videos aren’t journalism,” which was based on the results of a collaboration between the Los Angeles Times and the University of California, Berkeley’s graduate program in journalism.

That study was led by Lowell Bergman, a legendary investigative reporter whose career over the past few decades has been symbiotic with the evolution of the field. Bergman’s team and the LA Times concluded that:

Daleiden, head of the Irvine-based Center for Medical Progress, and his associates contend that they were acting as investigative journalists, seeking to expose illegal conduct. That is one of their defenses in lawsuits brought by Planned Parenthood and other groups, accusing them of fraud and invasion of privacy.

But unpublicized footage and court records show that the activists’ methods were geared more toward political provocation than journalism.

The team found what we already knew: Daleiden and his co-conspirators attempted to plant phrases in their targets’ mouths in the hopes of making them sound bad, hoping to drum up “political pressure,” according to a memo obtained by Bergman’s group that Daleiden wrote to his supporters. The activists’ use of fraud was so extensive and enthusiastic, and their deliberate splicing of videos so manipulative and dishonest, that they in no way reflected the methods or goals of real reporters.

The brief submitted in the NAF lawsuit last week echoes these findings and resoundingly makes the same point: Daleiden is not an investigative reporter. The main arguments in the brief boil down to the following, which can be understood as the pillars of investigative journalism:

  • Reporters do not falsify or distort evidence. Daleiden spliced and manipulated his videos and transcripts to give the false impression that they captured illegal conduct. A reporter’s job is to uncover and convey the truth, not to concoct false claims and peddle them as facts.
  • Reporters must use deception as a last resort, not a first resort, if they use it at all. Any use of deception—even in the service of obtaining the truth—tends to undermine the public’s trust in any of the reporter’s work. For this reason, even investigations that have uncovered serious abuses of power are often criticized, if not condemned, by the profession if they have obtained their information through deceptive means. As the brief noted, in 1978, the Chicago Sun-Times was barred as a finalist from the Pulitzer Prize because the truth it exposed was obtained through elaborate deception—Sun-Times reporters opened a bar called The Mirage for the purposes of documenting very real public graft. No one doubted that the evidence they found was both true and of great public importance. But, led by Ben Bradlee, the journalism establishment rejected the Sun-Times’ use of deception because of the long-term damage it would cause to the profession.
  • Reporters follow the law. Daleiden and his co-conspirators created fake government identification which they used to gain access into private events. No legitimate news organization would permit their reporters to take such steps.
  • Reporters do not deceive subjects into making statements to support a “predetermined theory.” Daleiden used alcohol to try to manipulate subjects into using words and phrases that he believed would sound bad on tape. Real journalists try to report against their own biases, instead of manufacturing evidence to prove their own theories.
  • Reporters seek to highlight or prevent a harm to the public. Daleiden caused great harm but exposed none.

A point that wasn’t mentioned in the legal filings is that Daleiden failed to follow a rule that student journalists learn in their first weeks of school: You must afford the subject of your reporting a full opportunity to respond to the allegations made against them. Daleiden’s videos came as a surprise attack against Planned Parenthood and NAF (but not, apparently, to certain Republican members of Congress). No reputable reporter would conduct herself in such a fashion. That is an ambush, not an article.

To many readers, these arguments may seem academic. But the reality is that real reporters take their obligations more seriously than the public might realize, to the point of risking—and sometimes losing—their lives in the service of this job, which many consider to be a calling.

One of the best investigative reporters of my generation, A.C. Thompson of ProPublica, recently reported on a group of assassins that operated on U.S. soil in the 1980s, who murdered Vietnamese-American journalists for political reasons.

To report that story, Thompson attended events held by members of the groups he believed to be linked to—or were actual parts of—these networks of killers. He did phone interviews with them. He met with them in person. And he did all of that on camera, using his real name.

Make no mistake: Thompson potentially put his life at risk to do this work, but he did it because he believed that these men had been able to murder his fellow reporters with impunity, and with possible—if tacit—support from the U.S. government.

Contrast that to Daleiden’s conduct. As noted in the legal brief:

Daleiden may think Planned Parenthood kills babies, but there was no risk whatsoever that its managers would have killed him, or even slapped him, if he approached them openly.

Daleiden’s arguments are, in some ways, the natural extension to the existential crisis that gripped journalism more than a decade ago, with the rise of blogging. What followed was a years-long debate over who could be labeled a “journalist.” The dawn of smartphones contributed to the confusion, as nearly anyone could snap a photo and publish it via Twitter.

It is therefore a tonic to read these clear defenses of the “what” and “why” of investigative journalism, and to see luminaries of the field explaining that journalism is a discipline with norms and rules. When these norms are articulated clearly, it is easy to show that Daleiden’s work does not fall within journalism’s bounds.

At times like this, the absence of David Carr’s raspy voice makes itself painfully felt. One can only imagine the field day he would have with Daleiden’s pretensions to be committing acts of journalism. Judging by this legendary exchange between Carr and Shane Smith, one of the founders of VICE news, from Page One, the 2011 documentary about the New York Times, Carr would not have minced words.

The exchange came after Smith’s self-aggrandizing assessment of his team’s work covering Liberia—where they uncovered cannibalism and a beach that locals were using as a latrine—and then mocked the New York Times’ coverage of the country.

Here’s Carr:

Just a sec, time out. Before you ever went there, we’ve had reporters there reporting on genocide after genocide. Just because you put on a fucking safari helmet and went and looked at some poop doesn’t give you the right to insult what we do.

To paraphrase: Just because Daleiden got some hidden cameras and editing software, and called himself a reporter, doesn’t mean he was doing journalism.

It’s important that both the public and the courts recognize that reality.

Disclosures: A.C. Thompson is a former colleague of the author. The author also appeared, extremely briefly, in the Page One documentary. 

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