Revisiting the undercover Alito recording, post-Trump v. United States

The Supreme Court stunned legal experts last week by deeming presidents absolutely immune from prosecution for “core” constitutional duties and mostly immune for “official acts.” Otherwise, the court’s conservative majority reasoned, the prospect of criminal charges would make presidents less “energetic.”

But when it comes to the energy levels and effectiveness of reporters performing their own core constitutional duty — tracking down important news, including about the Supreme Court — it seems many journalistic ethicists don’t share similar concerns.

Case in point, the backlash against filmmaker Lauren Windsor last month for secretly recording comments by Justices Samuel Alito and John Roberts.

Who called the journalism police?

Alito’s recorded remarks shed light on his worldview — that coexistence between the right and left is a pipe dream, and “one side or the other is going to win.” In hindsight, that helps explain why he and his colleagues threw “originalism” to the wind to hand Donald Trump a win.

But the prevailing view among ethics experts was that the ends didn’t justify the means. Law professor Jane Kirtley told The New York Times that “most ethical journalists deplore those kind of techniques,” asking, “How do you expect your readers or your viewers to trust you if you’re getting your story through deception?” Kelly McBride of the Poynter Institute said she’d never seen a justifiable example of deceptive reporting.

If some outlets believe surreptitious newsgathering undermines public trust and prefer to avoid it, that's their prerogative. But there’s room for other approaches. A Supreme Court that routinely issues dubious decisions and overturns decades-old precedent while justices accept lavish gifts from billionaires begs for unrestrained investigation, not gatekeeping.

Justices aren’t accountable to voters and don’t often grant interviews. Their correspondence isn’t subject to FOIA. They’ve resisted recent calls for transparency, only begrudgingly adopting a toothless code of conduct. The Biden administration isn’t eager to publicly investigate them.

What are journalists supposed to do? Hope news about the court falls on their laps? Windsor, who raised similar points to defend her work, tried something else: using arguably unsavory methods to confront a definitely unsavory situation.

Her critics admit she didn’t break Washington, D.C. law. She paid for a ticket to a Supreme Court Historical Society event Alito and other justices were scheduled to attend. These events have long allowed the well-heeled to gain access to justices that reporters can only dream of. The public’s trust in journalists seems unlikely to be diminished by their not letting justices hobnob in peace.

That trust is already at a record low, not because of journalists’ methods, but because people don’t believe they’re reporting “fully, accurately and fairly.” Windsor recording Alito to report news is far less damaging to the media’s reputation than, for example, Nina Totenberg covering for Ruth Bader Ginsburg to not report news.

And let’s not forget Windsor’s recording came shortly after Alito threw his wife under the bus following reports he flew an “Appeal to Heaven” flag, signifying a “push for a more Christian-minded government,” right in line with what Windsor recorded.

That flag — like one that flew outside another Alito home in 2021 — also demonstrates support for Jan. 6 insurrectionists. Incidentally, The Washington Post withheld the flag story to protect Alito’s wife: another questionable call by the establishment press that breeds far more distrust than surreptitious recording.

Now that the story’s finally out, the public should know that the justice flying those flags, and joining radical rulings, thinks we’re in the midst of a battle between good (the pro-Trump religious right) and evil (everyone else).

Yes, Windsor deceived Alito by posing as a religious conservative. But Alito deceives America by posing as a principled originalist. Bottom line: The deception Windsor helped expose is far more consequential than the deception she carried out.

Undercover reporting under attack

The current opposition to undercover reporting, even under circumstances in which leading ethical guidelines seem to permit it, may arise from its association with disreputable outlets like Project Veritas. Their employees mislead not only secretive government officials but the public, including through deceptive editing.

But undercover reports used to be a hallmark of prime-time news broadcasts. Even before miniature cameras made those investigations possible, the Chicago Sun-Times operated a sham bar — the Mirage Tavern — to catch shady government dealings. Before that, northern journalists went undercover to document the horrors of slavery.

The change wasn’t prompted by some ethical epiphany, but a court case, Food Lion, Inc. v. Capital Cities/ABC, culminating in a 1999 appellate decision allowing journalists to be sued over newsgathering tactics.

Law professor Alan Chen explained that the case, which involved reporters getting jobs at grocery stores to record unsanitary practices, appears to have immediately upended conventional thinking on surreptitious reporting. Chen notes that Food Lion even distributed a curriculum based on the case to journalism professors.

Sure, there were previous discussions on the subject. The Pulitzer board in 1979 debated whether the Mirage Tavern investigation’s deceptiveness was disqualifying, as argued by the Post’s Ben Bradlee. But that only underscores that, back then, a story like that could’ve been nominated in the first place (previous undercover reports had won).

Times have changed — in more ways than one. Today, conventional newsgathering often doesn’t work. FOIA is broken. Agencies route inquiries through spin-spewing spokespeople. Political candidates refuse to interact with journalists. Officials retaliate against and censor reporters. No one can even definitively determine if the current president has a serious cognitive condition.

Under the circumstances, it seems selfish for the press to elevate concerns about its own image over the public’s interest in the news.

Following the Trump v. U.S. decision, Heritage Foundation President Kevin D. Roberts proclaimed that the country is “in the process of carrying out the Second American Revolution.” Echoing Alito, he added that “our side is winning.”

If people as influential as Roberts say that in the open, imagine what they say behind closed doors. Or maybe journalists shouldn’t imagine — they should find out. They’d better start before Trump tries silencing them altogether through those “official acts.”