Monsieur Fouche, Meet Professor Gleick

The Teacher: Napoleon's Police Chief, Joseph Fouche

By now, Peter Gleick’s ethical indiscretions concerning the Heartland Institute are old news.  But for lawyers, they raise particularly interesting ethical issues because they highlight the question of really, whether there were ethical barriers broached at all.

I initially thought that this was obviously the case: someone in my profession would get disbarred for doing something similar, I assumed.  But actually, it is somewhat murkier than that.

Consider the issue of fair housing enforcement.  There, the gold standard of research is so-called “paired testing,” where one couple — traditionally Black — walks into the landlord’s or realtor’s office asking about houses or apartments, and then a white couple with similar (or often worse) financial and credit scores does the same.  They are masquerading as someone whom they are not in an attempt to find out what the target “really” thinks.  That is basically what Gleick did.

A few years ago, in Formal Ethics Opinion 01-422 (2001). the American Bar Association explicitly approved the use of secret recording, overturning an opinion from 1974.  It noted that secret recording of conversations is now an accepted practice by law enforcement, private investigators and journalists. Moreover, it said, courts routinely admit evidence obtained through secret recordings.  This is not precisely on point, because obviously secret recording is different from masquerading.  But it is not clear which one is worse, and both involved deception.  In any event, the ABA endorsed secret recording because forbidding it would prevent “legitimate and necessary activity (e.g., documenting criminal threats, protecting against witness perjury, use of testers in discrimination and quasi-governmental investigations).”

Two differences stand out from these examples, one of which seems to be a distraction and the other of which really serves as the touchstone of the matter.

The Student: Professor Peter Gleick

The first difference that whereas paired testers and confidential informants deceive in order to achieve their ends, they do not actually claim to be another real person.  This is true, but for the purposes here, I fail to grasp the relevance.  It is true that masquerading as someone else involves a deeper threat to that person, but that isn’t what made the Gleick episode problematic.  No one seriously is accusing Gleick of committing identity theft.

The second difference is more important.  The ethics opinions seem to suggest that prosecutors and paired testers can use their deceptive tactics because they are necessary to achieve a very compelling social function, i.e. prosecuting crime and ferreting out discrimination, and that there is no way anywhere close as good to doing it.

That just wasn’t the case with Heartland.  Climate denial is a blot on the American body politic and to reasoned discourse, but you don’t need to get confidential documents in order to discredit it.  When I saw was Heartland was doing, I wasn’t particularly surprised.  No one found some nefarious purpose at Heartland: they found a bunch of insane wingnuts.  We knew that already.  Besides, one thing that makes scientific inquiry useful is that it is public and reproducible.  Although it is frustrating to have to knock every crazy theory that climate denialists make, science has a way of doing that already.

So the real problem with what Gleick did was not that it was deceptive, but rather that it was deceptive without having a good enough reason for doing so.  That is related to the initial outcry, but far less serious.

One cannot help remembering the delicious quote from Joseph Fouche, Napoleon’s chief of police, about the extrajudicial execution of the Duke of Enghien:

It was worse than a crime.  It was a blunder!

That would be a fitting epitaph for L’Affaire Heartland.

, , , , ,

Reader Comments

10 Replies to “Monsieur Fouche, Meet Professor Gleick”

  1. “Climate denial is a blot on the American body politic”

    This comment reveals the deep anxiety and inner struggle of those who have placed their faith in the obtuse theory that carbon dioxide has some sort of unique physical property to capture and re-radiate heat. Truth is a daunting prospect that instills fear in the hearts of these lost souls who hopelessly pine for a bygone era when they were once relevant. Be silent and grow old gracefully.

  2. “Climate denial is a blot on the American body politic”

    This comment reveals the deep anxiety and inner struggle of those who have placed their faith in the obtuse theory that carbon dioxide has some sort of unique physical property to capture and re-radiate heat. Truth is a daunting prospect that instills fear in the hearts of these lost souls who hopelessly pine for a bygone era when they were once relevant. Be silent and grow old gracefully.

  3. You can see the damage done to society by denialists, in that I suspect bqrq actually believes the nonsense he just wrote. It’s sad to think knowledge that predates Darwin (look up Tyndall) could be junked as soon as it becomes politically inconvenient.

    Moving on, the much better approach to this issue is the one that John Mashey took, using legally available documents to show Heartland and other denialist groups are in likely violation of the IRS standards for tax deductible charities:

    http://www.desmogblog.com/fake-science-fakexperts-funny-finances-free-tax

  4. You can see the damage done to society by denialists, in that I suspect bqrq actually believes the nonsense he just wrote. It’s sad to think knowledge that predates Darwin (look up Tyndall) could be junked as soon as it becomes politically inconvenient.

    Moving on, the much better approach to this issue is the one that John Mashey took, using legally available documents to show Heartland and other denialist groups are in likely violation of the IRS standards for tax deductible charities:

    http://www.desmogblog.com/fake-science-fakexperts-funny-finances-free-tax

  5. I’m curious whether Jonathon Zasloff’s opinion of the severity of Gleick’s transgression is based on the assumption that Gleick’s account in his HuffPo confession was accurate. That is, did Gleick in fact receive the forged strategy memo anonymously, after which he phished the legitimate documents in an attempt to verify its contents, then leaked them all together in the belief that they were all legitimate? Or did Gleick actually phish the legitimate documents first, then forge the strategy memo himself in order to portray Heartland in a worse light than the legitimate documents by themselves would have done?

    The second scenario seems more-bothersome from an ethical standpoint than the first, at least to me. In the first scenario Gleick’s deceptions were mostly limited to deceiving a few Heartland employees into releasing the legitimate documents to him, with that deception being arguably justified by the larger societal interest in having the truth about Heartland’s activities be known.

    In the second scenario we have the first scenario’s deception, plus the additional deception of forging a document intended to make Heartland look worse than it should, and using that to deceive the leaked documents’ recipients, and, by extension, the media and the public.

    I think it’s an important question for anyone who argues, as Zasloff appears to be doing here, that Gleick’s deceptions may have been justified by the greater good he was trying to achieve. Which deceptions, and which greater good, are we talking about?

  6. I’m curious whether Jonathon Zasloff’s opinion of the severity of Gleick’s transgression is based on the assumption that Gleick’s account in his HuffPo confession was accurate. That is, did Gleick in fact receive the forged strategy memo anonymously, after which he phished the legitimate documents in an attempt to verify its contents, then leaked them all together in the belief that they were all legitimate? Or did Gleick actually phish the legitimate documents first, then forge the strategy memo himself in order to portray Heartland in a worse light than the legitimate documents by themselves would have done?

    The second scenario seems more-bothersome from an ethical standpoint than the first, at least to me. In the first scenario Gleick’s deceptions were mostly limited to deceiving a few Heartland employees into releasing the legitimate documents to him, with that deception being arguably justified by the larger societal interest in having the truth about Heartland’s activities be known.

    In the second scenario we have the first scenario’s deception, plus the additional deception of forging a document intended to make Heartland look worse than it should, and using that to deceive the leaked documents’ recipients, and, by extension, the media and the public.

    I think it’s an important question for anyone who argues, as Zasloff appears to be doing here, that Gleick’s deceptions may have been justified by the greater good he was trying to achieve. Which deceptions, and which greater good, are we talking about?

  7. jbc99 said:
    “…Which deceptions, and which greater good, are we talking about?…”

    This has always been one of the many unsettled issues surrounding climate change. My new neighbors who recently fled from California, will tell anyone who cares that the best way to mitigate global warming is to pack-up and move to Texas. Refugees from California are always welcome, taxes are lower, no cap & trade, better housing, and plenty of jobs for just about anybody who wants to work, including Doctor Gleick who could serve at one of our outstanding community colleges. Texas has the right approach to climate change and leads the nation with innovative policy solutuions. Have a good day and don’t forget to smile.

  8. jbc99 said:
    “…Which deceptions, and which greater good, are we talking about?…”

    This has always been one of the many unsettled issues surrounding climate change. My new neighbors who recently fled from California, will tell anyone who cares that the best way to mitigate global warming is to pack-up and move to Texas. Refugees from California are always welcome, taxes are lower, no cap & trade, better housing, and plenty of jobs for just about anybody who wants to work, including Doctor Gleick who could serve at one of our outstanding community colleges. Texas has the right approach to climate change and leads the nation with innovative policy solutuions. Have a good day and don’t forget to smile.

  9. As Brian said, I think my way was better, but a lot of this is like arguing about the number of angels dancing on pinheads. Almost no one has any data that is not already known, the data is insufficient to know much, since the memo could been written by someone in Heartland or just as easily by anyone who had the board package and was familiar with the style. Stylistic analyses simply do not have enough words to give meaningful results. Sooner or later the truth will be known, whatever it is.

    However, I think there are serious legal issues that are worth discussing, for instance the extent to which entities hat seem like they are entirely designed for advocacy manage to get tax-exempt 501(c)(3) status.

    Given that an entity:
    a) Has long taken tobacco money and advocated in its behalf
    b) Generates factually wrong/distorted information to be sent to schools and legislators
    c) Sends money to foreign entities that are not charities

    Does it have the right to claim tax-exempt 501(c)(3) status?
    See Fake science,…

    I.e., this is not a free speech issue: thinktanks can say what they like.
    The question is do they all deserve tax-exempt status, or should they be 501(c)(4)s or jsut for-profit businesses, since some surely look more like PR agencies.

    See:
    p.3 graph, including tobacco $ flows.

    pp.8-10 brief review of relevant 501(c)(3) rules

    p.12 501(c)(3) thinkanks vs funders, including tobacco

    pp.38-42 tobacco, tobacco funding 1991-2001 from tobacco archives, what thinktanks do for the money.

    pp.43- Joseph Bast’s defense of Joe Camel, uses that to help beg for money.
    ====

    Heartland would much rather talk endlessly about Gleick. if I were them, I would, too.

  10. As Brian said, I think my way was better, but a lot of this is like arguing about the number of angels dancing on pinheads. Almost no one has any data that is not already known, the data is insufficient to know much, since the memo could been written by someone in Heartland or just as easily by anyone who had the board package and was familiar with the style. Stylistic analyses simply do not have enough words to give meaningful results. Sooner or later the truth will be known, whatever it is.

    However, I think there are serious legal issues that are worth discussing, for instance the extent to which entities hat seem like they are entirely designed for advocacy manage to get tax-exempt 501(c)(3) status.

    Given that an entity:
    a) Has long taken tobacco money and advocated in its behalf
    b) Generates factually wrong/distorted information to be sent to schools and legislators
    c) Sends money to foreign entities that are not charities

    Does it have the right to claim tax-exempt 501(c)(3) status?
    See Fake science,…

    I.e., this is not a free speech issue: thinktanks can say what they like.
    The question is do they all deserve tax-exempt status, or should they be 501(c)(4)s or jsut for-profit businesses, since some surely look more like PR agencies.

    See:
    p.3 graph, including tobacco $ flows.

    pp.8-10 brief review of relevant 501(c)(3) rules

    p.12 501(c)(3) thinkanks vs funders, including tobacco

    pp.38-42 tobacco, tobacco funding 1991-2001 from tobacco archives, what thinktanks do for the money.

    pp.43- Joseph Bast’s defense of Joe Camel, uses that to help beg for money.
    ====

    Heartland would much rather talk endlessly about Gleick. if I were them, I would, too.

Comments are closed.

About Jonathan

Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

READ more

POSTS BY Jonathan