Opinion: Why the secret Alito recording is so revealing

Opinion by David Zurawik

(CNN) — As a journalist and professor who teaches media ethics, I have long been against the kind of undercover secret recording activist Lauren Windsor made of Supreme Court Justice Samuel Alito and his wife, as well as Chief Justice John Roberts.

But as a citizen living in this perilous moment for our democracy, I am grateful for the information she obtained and shared on Monday — particularly about the extent of Alito’s right-wing, religious views.

Alito has often ruled in favor of conservative religious groups. In response to a statement from Windsor suggesting there’s a war between those who believe in God and those who do not, and that believers have to fight to take the nation to a place of “godliness,” Alito says, “I agree with you. I agree with you.”

That raises questions about his impartiality on questions of separation of church and state and whether his rulings would move us from a secular democracy toward a theocracy.

I realize there is a major contradiction in being against a behavior and being grateful for what it produces. But living within such contradictions and being honest about it are necessary in these revolutionary media days if we are going to find a way to both maintain high standards of journalism and serve — maybe even help save — democracy.

Here is the core issue I came up against in trying to morally reason my way through Windsor’s actions and my reactions to them: If I wanted to accept or endorse what Windsor did, then perhaps I also had to accept some of the work the right-wing activist group Project Veritas and its founder, James O’Keefe, did. And that is a highly disagreeable notion.

Remember, for example, when he and a fellow activist, Hannah Giles, went “undercover” in 2009 in Baltimore as a prostitute and her pimp to try to uncover alleged corruption at ACORN, a grassroots community organizing operation?

I had absolute clarity back then. I denounced their actions in print and on cable TV: Journalists do not deceive and misrepresent themselves to get information. Period.

Fifteen years later, I no longer have that kind of clarity. As a journalist and ethicist, I am still against misrepresentation to get information. I would not do it. I think it is wrong.

But as we approach a possibly monumental Supreme Court ruling on whether former President Donald Trump enjoys presidential immunity from federal charges related to his alleged role in the storming of the Capitol on January 6, 2021, we need all the information we can get on the people making those rulings. And members of the court have not exactly been forthcoming about anything.

As a citizen and voter, I welcome any information I can get as we approach Election 2024 and Supreme Court rulings that could have a profound effect on the outcome. Even before Windsor made her recording public, Alito had said he would not recuse himself from ruling on Trump’s claim of absolute immunity, so we need all the information we can get on what Alito thinks and how he behaves.

Given the upside-down American flag (a symbol of those who question the results of the 2020 election) The New York Times reported flying at the Alitos’ home shortly after the Jan. 6 insurrection, some have questioned Justice Alito’s impartiality when it comes to the 2020 election and Trump’s false claims of having the election stolen from him. Some of those who stormed the Capitol carried the same kind of flags.

The issue here is yet another strand of the great media question of the last eight years: If you believe that American journalism must serve democracy, how do you cover someone who you believe is trying to destroy it?

There is a case to be made for what Windsor did. Yes, she was dishonest in presenting herself as a conservative Catholic and secretly recording their answers. But she does not claim to be a journalist. Should we then judge her by journalistic standards? And what about all the journalistic institutions that ran with her findings? Did not every major mainstream media outlet, including The New York Times, publish the information she recorded whether or not they had heard the full recording themselves and knew what she did or did not include? So it seems perhaps a little hypocritical for journalists to denounce her when their organizations are making money off her work — even if we describe her as a liberal activist and filmmaker.

What Windsor discovered does not tell me as much as ProPublica and The New York Times have about the secrecy and shocking lack of ethics in the Supreme Court. And they both did it without any deception. But she did make me think Alito is even farther to the religious right than I thought. And that matters to me as a citizen, especially as it relates to reproductive rights and other matters before the court.

There is a role for activist filmmakers to try and get information that will help voters make informed choices. And that role is now more important than ever. But we should not call it journalism and we should be candid as to what has or has not been verified by our own outlets when we reproduce their findings.

As for comparing Windsor’s work to that of Project Veritas, yes, she was dishonest in presenting herself as a conservative Catholic, posing questions to the Alitos that suggested a camaraderie with them against secular liberals and secretly recording their answers. But while the approach was similar, Maryland has a law against secret recordings; two-person consent is required. Washington, DC, where Windsor’s recordings took place, does not. She did not flout any law in gaining her information. Traditional journalistic standards, yes. But she broke no law in taking us behind closed doors and a little further into the mind of Alito.

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