When Doing Wrong Means Doing Right: Police and the Press
Law Enforcement News, September 15, 1989.

Gary T. Marx | Back to Main Page

In The Merchant of Venice, Shakespeare counsels us that, "to do a great right, do a little wrong." When it comes to undercover operations and the press, many police agencies would no doubt agree. With the significant spread of undercover tactics in the last decade issues around police deception and the media have increased in importance. In a recent study of undercover tactics I encountered many examples.

In Texas, recent actions of the Drug Enforcement Administration led to false news reports regarding the seizure of drugs that were under its control, and the "arrest" of undercover agents pretending to be couriers. The goal was to enhance the agents' credibility and to remove drugs from the street which the agency itself had helped import, without having to give away an entire operation.

The COINTEL program offered many examples of police seeking to damage the image of civil rights, anti-war and student groups. Stories were planted with friendly journalists regarding the supposedly violent, morally degraded, and subversive character of dissenting groups.

In Illinois, police planted a fake story about the disappearance of the intended victim of a contract homicide. In this case an undercover agent pretended to be a hit man and the distortion was used to help gather evidence of conspiracy to commit murder. In New York police told the news media that arrests in an important case were imminent in the hope of provoking discussion over a wiretapped phone line and to see if suspects would flee.

Those enforcing laws involving endangered species, pornography, drugs, or weapons have sometimes surreptitiously placed subtly-worded advertisements in newspapers and magazines offering to buy or sell such contraband. Agents then seek to do business with those who respond in the hope of making arrests.

Is it ever appropriate for police to deceptively use the mass media? The costs and risks of doing so can be grave. Lies have a way of feeding on themselves. Once accepted for good purposes, they can more easily be used for bad purposes. The tactic of the big lie is an important factor in totalitarian governments. A free and reliable press is a sacred bulwark of liberty. Our common life is impoverished when the press cannot trust the government and citizens cannot trust the press. Police are never justified in outright lies to the press.

Yet to prohibit law enforcement from ever taking actions that deceive the press and public, at least while an investigation is ongoing, would be unrealistic and socially harmful. Nor are police under obligation to tell all they know. Police press officers have a very difficult job. It is certainly appropriate for them to offer a non-committal "no comment" or "I have no information I can provide on that" in response to questions that would compromise an ongoing investigation (e.g., "is that pawn shop really a cover for a police sting?") They may also attempt to non-coercively persuade the press that it is in the public interest to temporarily withhold certain stories.

However reluctantly, I think we must conclude that there are conditions under which law enforcement officials may deceptively structure the environment with the expectation that the mass media will be taken in, at least until the truth comes out at a trial or the investigation is stopped.

Among the conditions which are necessary (though certainly not sufficient) for this are a serious offence, the absence of alternative means, and a high-level formal review before the deception. The amount of deception should be only that which is minimally required, and it should be passive in the sense that reporters draw inferences from contrived events and specious appearances, rather than active, as with police directly lying in response to questions, in press releases or in planting fallacious stories.

Applying these criteria, actions such as the DEA’s described above would be acceptable (though staged arrests may involve other troubling issues). Police could also use the media to advertise for contraband. But outright lies to the press and events staged only for public relations purposes (whether to enhance an agency’s image of productivity or to send a deterrence message) are clearly unacceptable.

Yet in legitimating the state’s use of domestic deception even in a circumscribed fashion, the risks are ever present. A vigilant press and conscientious police must be sure that Shakespeare’s observation is not reversed, wherein great wrong leads to little that is right.

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