On January 25, a grand jury assembled by the Harris County District Attorney's office in Texas elected to clear a local Planned Parenthood of any wrongdoing alleged by deceptively edited videos from the Center for Medical Progress (CMP) and instead indicted its founder, David Daleiden -- Media Matters' 2015 Misinformer Of The Year. This indictment elicited objections from right-wing media outlets, claiming that the investigation was "biased" and violated Daleiden's First Amendment rights. They dubiously argued that despite his dishonesty, Daleiden should be considered a journalist because he relied on “the same undercover techniques that investigative journalists have used for decades” and that his indictment would constitute a chilling effect on other journalists.
But these First Amendment arguments are a red herring - as Slate's legal expert Dahlia Lithwick explains, it is crucial that media remember Daleiden is not and never was an investigative journalist.
In a February 2 article for Slate, Lithwick argued that the distinction between Daleiden and real journalists is that “journalists seek truth” while Daleiden “allegedly falsified evidence” to bolster “a truth he cannot quite prove but wants us to believe anyhow.” Given that CMP's website was “only recently revised” to include any mention of being “citizen journalists,” Lithwick noted Daleiden's claim to a journalist's First Amendment protections is even more unconvincing and a “nihilistic and cynical view of the profession.” Drawing on a wide variety of expert testimony and case law, she concluded Daleiden's smear campaign “can be called many things, but 'journalism' probably isn't one of them” :
[I]s it so simple to say that what CMP was doing was truly journalism? Amanda Marcotte has argued at Salon that Daleiden “has no right to call himself a journalist,” in part because when the hours of footage he shot failed to turn up any examples of criminal conduct on the part of Planned Parenthood, Daleiden didn't back off the story but doubled down on it. Indeed he allegedly falsified evidence, so the videos would show through trickery--including flawed transcripts and stock images--that which he could not prove. In an interview in On the Media this week, Jane Kirtley, professor of media ethics and law at the University of Minnesota, similarly explained that American courts have almost always found that general criminal laws apply to the press, unless a story is so terrifically important it couldn't have been unearthed any other way. That might justify allowing journalists to be immune from prosecution, but only a small handful of such cases exist, and as Kirtley points out, it will be difficult for Daleiden to claim that his actions were critical to exposing vast criminal wrongdoing on the part of Planned Parenthood, given that the grand jury's own investigation, and 11 independent state investigations, have unearthed no wrongdoing. The difference between journalism and what CMP did is that journalists seek truth, while Daleiden seeks to show that somewhere in between the edited seams and faked voiceovers of his films there lies a truth he cannot quite prove but wants us to believe anyhow. That can be called many things, but “journalism” probably isn't one of them.
[It]'s entirely possible that even while Daleiden attempts to argue that what he did--or at least what he now says he was doing--is genuine journalism, there are real risks to the rest of us in allowing him to make such broad claims. We aren't merely risking our privacy and our livelihoods by allowing anyone with a camera and an inextinguishable fantasy to call himself a reporter. We are courting the possibility that his nihilistic and cynical view of the profession could someday become the norm.