Overview

Undercover investigators have been celebrated as critical conduits of political speech and essential protectors of transparency. They have also been derided as intrusive and spy-like, inconsistent with private property rights, and morally or ethically questionable. In Truth and Transparency, Alan K. Chen and Justin Marceau rigorously examine this duality and seek to provide a socio-legal context for understanding these varying views. The book concretely defines undercover investigations, distinguishes the practice from investigative journalism and whistleblowing, and provides a comprehensive legal history. Chapters explore the public need for investigations and the rights of investigators, paying close attention to the types of investigations that fall beyond the scope of constitutional protection. The book also provides concrete empirical evidence of the broad, bipartisan support for undercover investigations and champions the practice as an essential com-ponent of the transparency our democracy needs to thrive.

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9781108725422

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Reviews

‘In Truth and Transparency, Alan Chen and Justin Marceau provide an insightful and thorough examination of the social and legal issues raised by undercover investigations. Chen and Marceau demonstrate that undercover investigations are a crucial element of the information-generation ecosystem that undergirds our society and our democracy, used in contexts far beyond the familiar ones of journalism and law enforcement. They closely examine the difficult moral and ethical issues raised by such investigations, which are after all based on deliberate lies, and they also carefully dissect the complex constitutional questions that arise when government officials seek to suppress such investigations. Truth and Transparency is an essential contribution to ongoing debates about the morality and legality of undercover investigations, and is a must-read for anyone with an interest in how, and how well, our society creates public awareness of lies and deceptions.’ Ashutosh Bhagwat, University of California, Davis School of Law ‘This timely, important, and fascinating book explores the legal, ethical, social, and technological dimensions of undercover investigations. Authors Chen and Marceau document the critical role undercover investigations play in uncovering abuses of power and galvanizing reform, analyze the ethical and legal constraints on such investigations, and expertly explain why blanket bans on such investigations, which often target deception or nonconsensual video recording, violate the Free Speech Clause of the First Amendment to the US Constitution. Anyone who cares about accountability in the public sphere should read this well-written and meticulously researched study.’ Lyrissa Lidsky, University of Florida Levin College of Law ‘In Truth and Transparency, Alan Chen and Justin Marceau argue that undercover investigations and the right to record matters of public concern are vital to an informed public in a democratic society. They explain when the First Amendment should protect investigations and recordings and, conversely, when privacy interests should prevail. This is a comprehensive look at an important method of newsgathering in the digital age.’ Jack M. Balkin, Yale Law School ‘In this remarkable and important book, Chen and Marceau take a deep dive into the history, legality, ethics, and social significance of undercover investigations. Readers will learn of, among other things, journalism’s evolving relationship to undercover investigations; the crucial role that such investigations have played throughout American history; social and legal backlash against undercover investigations; and First Amendment defenses against legislation that seeks to stymie such investigations. Above all, Chen and Marceau make a powerful case that undercover investigations - and the inconvenient truths that they expose -matter.’ Heidi Kitrosser, Northwestern University Pritzker School of Law ‘Marceau and Chen provide a crucial service with this book: bringing together a tight, persuasive, and empirically supported case for the role and value of undercover investigations as a uniquely powerful source of facts, upon which movements are built. This book can bring a new perspective for all audiences, but might be especially useful as a historical education and a guidebook for animal protection advocates or anyone else working in a social justice field.’ Cheryl Leahy, Executive Director, Animal Outlook ‘Truth and Transparency is the most original and comprehensive study of undercover investigations ever written. Chen and Marceau draw from history, ethics, law, policy, technology, and social science to provide their readers with a rich and insightful analysis of this provocative and paradoxical practice, wherein investigators engage in deception to uncover the truth about the behavior of powerful actors, both public and private. In so doing, the authors deliver a compelling evidence-based defense of the value of undercover investigations to a healthy democracy.’ Helen Norton, University of Colorado School of Law

Author Information

Alan K. Chen is the Thompson G. Marsh Law Alumni Professor at the University of Denver Sturm College of Law. He is the coauthor of Free Speech beyond Words: The Surprising Reach of the First Amendment (2017) and has published numerous scholarly articles in leading national law journals. Justin Marceau is the Brookes Institute Professor of Law at the University of Denver Sturm College of Law. He is the author of Beyond Cages (2019) and a coeditor with Lori Gruen of Carceral Logics: Human Incarceration and Animal Captivity (2022). Marceau has worked with investigators, filmmakers and journalists on cases and legal projects relating to undercover investigations.

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