The Corner

Is Lying Ever Permissible?: Undercover, Deep and Shallow

A very fruitful and, in my judgment, long overdue and much-needed debate has erupted in the blogsosphere about lying. Christopher Tollefsen, an extraordinarily able young philosophy professor, touched off the explosion last week over at Public Discourse. With specific reference to Live Action’s expose of Planned Parenthood clinics’ cruelty towards persons who claimed to be sex workers, Tollefsen made the case that lying is always wrong, full stop — including the lies told by Live Action. Criticisms and replies and further criticism have followed, at Public Discourse, Mirror of Justice, and elsewhere.

I think that Tollefsen is right: Lying is indeed always wrong. Some of those responding to Tollefsen naturally suggest that a different rule should apply to public authorities. Their suggestion is, basically, that even if lying by private persons is always wrong, it surely cannot be always wrong when those acting on behalf of public authority lie. What, then, of deceiving enemies during wartime, of spying, and even of undercover police operations?

I think that the suggestion is mistaken. Lying is always wrong. Insofar as public authority cannot lie save by and through the lying of some human person, then lying by public authority is always wrong too. Now, someone will surely object that such a strict norm would be catastrophic, that it is so naïve that it has to be wrong. I do not think so. Yes, undoubtedly some practices of public authority would be different if the norm against lying were fully respected. But not as many practices as Tollefsen’s critics suggest.

To say that no one may lie is not to say that all deceit is wrong.#more# A lie happens when someone makes a false assertion. But people often say things which appear to be assertions, but which in fact are not. Storytellers, actors on the stage, and teachers using the Socratic method (not to mention Socrates himself) all utter sentences which are at odds with the truth. But these folks do not lie because, in their circumstances, they are not reasonably understood by anyone listening to them to be asserting what they say. They are rather reciting lines, or raising issues for discussion by playing devil’s advocate, and so on.

But note well: These are not examples of “lies” which it is permissible to tell. I am saying instead that these utterances (sentences, really) cannot be lies because they are not assertions at all. The same thing is true when we deceive through verbal communication on the battlefield. Eisenhower and those working under him committed no moral wrong in (just as such) misleading the Nazis about D-Day. Sending out false reports of troop activity indicating we would land at Calais and even dropping wooden dummies by parachute inland from Calais were not “lies,” for the simple reason that no belligerent nation during wartime reasonably believes that the enemy is to be trusted anymore than a Baltimore Ravens’ linebacker reasonably trusts Peyton Manning’s eye-fakes and audibles at the line of scrimmage. Peyton may be trying hard to make Ray Lewis think that he is passing to the left, when the play called is a run to the right. But Ray is not foolish enough to think that Manning is making assertions behind center, and surely does not think that Peyton lied to him when the play goes to the right.

The vast bulk of police undercover work can be and usually is carried off without lying too. The most common such work is the “buy and bust” drug deal. Here a scruffy young guy with (maybe) sagging pants walks up to a dealer in the park. The scruff asks for “a dime bag” while holding out half a sawbuck. The dealer takes the money and gives over the bag. He is promptly arrested. No lying here.

No lying either when a comely policewoman in heels saunters over to a car at the curb and says, “Hey, baby, what do you want? If you got the money, I got the time.” He specifies an act for a price and she enters the car. Maybe he then says, “How do I know you are not a cop?” Whereupon she replies, “Honey, do you see a 44 automatic on me anywhere?” He eyes her up and down once more and then confirms the transaction. Then she arrests him for soliciting a prostitute. The back-up team loitering nearby has the guns, and the handcuffs.

Nor here: The police and a young prosecutor recruit a knock-around guy who hangs on the fringes of a street gang to be their eyes and ears. This informant carries on exactly as he long has carried, and assumes no false identity or posture and says nothing which is untrue. But he listens carefully and wears a body-recorder to help him remember. After a couple weeks, enough has been recorded to charge two of the gang’s leaders with conspiracy to murder a witness against a third pal in a pending murder trial.

The kinds of undercover operations that depend on lying are chiefly where “moles” insinuate themselves into a conspiracy — perhaps the Mafia — and act out a “cover” identity over a long period of time. (Think of Johnny Depp’s title character in Donnie Brasco.) This sort of thing is, in my judgment, immoral, notwithstanding the heroic efforts of the morally sincere persons involved.

— Gerard V. Bradley is a professor of law at the University of Notre Dame.

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