Twitter's New 'Private Media' Policy Devastates Investigative Journalism | Opinion

Twitter updated its policies last week to include language preventing the sharing of media without subjects' prior consent. "Beginning today, we will not allow the sharing of private media, such as video of individuals, without their consent," Twitter said.

With this policy, Twitter has banned journalism in its purest form. It's also a direct attack on organizations like ours, Project Veritas.

In our case, all of this now comes on the heels of a recent Department of Justice filing with a federal judge arguing we at Project Veritas are not, in fact, actually journalists.

Why? The government argued our reporting "consists almost entirely of publicizing, non-consensual, surreptitious recordings."

But here's the thing: Good journalism sometimes requires publishing what someone else doesn't want published, or making public disclosures others may want kept secret for the wrong reasons. Anything else just amounts to public relations—and public relations is decidedly not the same thing as journalism.

In fact, the Reporters Committee for Freedom of the Press (RCFP) is currently asking the government questions about why the FBI recently raided the homes of reporters at Project Veritas. In a court proceeding last week, a RCFP lawyer, Katie Townsend, said before the presiding magistrate judge, "It's difficult for the public to accept what it's prohibited from observing."

American history is replete with journalists and other social activists who used undercover reporting to seek truth, uncover corruption and bring untold stories to the world: Mike Wallace of "60 Minutes," William Gaines of the Chicago Sun-Times and Pam Zekman, just to name a few. There's a whole chapter in my forthcoming book, American Muckracker, outlining this at greater length.

Over the years, many experts have argued that the ability to record something is closely connected with the ability to write and speak. As a Michigan appeals court wrote in 1982, "a recording made by a participant is nothing more than a more accurate record of what was said." Indeed, a recording device is really just a sophisticated piece of note-taking equipment.

In one of the lawsuits we've won before a federal jury, a federal judge made the case for covert recording. In a rare Rule 50 directed verdict, Judge Martin Reidinger pointed out to the people suing Project Veritas that there was no legally meaningful distinction between a recording and, say, the taking of handwritten notes. When opposing lawyers argued "the person did not know he was being interviewed," the judge responded, "but he knew he was being asked questions."

Without a recording device, facts can get distorted, too. In 1906, Upton Sinclair, the most famous muckraker of all time, actually 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, necessarily limit people's ability to "interpret."

Twitter entirely banning surreptitious audio and video recordings, and for the Justice Department to consider those recordings not journalism in the first instance, would only remove from the public sphere information offering a more accurate depiction of what actually occurred.

A sign is posted on the exterior
A sign is posted on the exterior of Twitter headquarters on July 26, 2018 in San Francisco, California. Justin Sullivan/Getty Images

Theodore Glasser, a professor emeritus at Stanford University, has vigorously defended the use of concealed recordings. As Glasser has put it, the use of a concealed tape recorder when the journalist is with the person he is recording "is 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."

The newest attack on this type of journalism is that it harms people. Twitter says this form of journalism amounts to "broadcast[ing] images without people's consent."

We saw that logic in Project Veritas' recent story in California, involving a teacher who said into a hidden camera at a coffee shop that he wanted to "scare the f***" out of kids. As a result of our reporting, and the parental outrage that subsequently followed, that teacher 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 ourselves advocated for. We simply quoted the man.

Too often, reporting has become about the safety of the people committing malfeasance. But in gathering truthful information, a dutiful journalist will necessarily sometimes 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 his book The New Muckrakers, "The investigative reporter must face the fact that his stories will hurt people."

Twenty 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 the 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 of press."

Whether it's Upton Sinclair using his pencil or a Project Veritas journalists using a button camera, investigative journalists honor a tradition as old as the republic itself. Critics of surreptitious recordings seem more troubled by the medium than with the underlying findings. Video can be unflattering—but then again, so can the truth. So do not be fooled by a one-sided narrative about privacy, consent and safety. 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?"

James O'Keefe is an investigative journalist and the founder of Project Veritas.

The views expressed in this article are the writer's own.