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Hoaxes, Satire, Art: What Crosses The Line Legally

August 6, 2012 1:44 p.m.


Glenn Smith, Constitutional law professor, Cal Western School of Law

Mark Sauer, KPBS Senior Editor

Related Story: Hoaxes, Satire, Art: What Crosses The Line Legally


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH: Coming up more about what's true and what isn't in the information we receive we will talk about the fake US attorney news story in San Diego last week inspired by political pranksters the yes men. It is 12:20. We are listening to KPBS Midday Edition. This is KPBS Midday Edition. I'm Maureen Cavanaugh. Last week news Organizations in San Diego received a press release about the closing of pharmacies by the US Attorney's Office. That turned out to be a hoax. What we've learned in recent days is that the creation of the hoax was inspired by workshop hosted by the San Diego Museum Of Art. The Yes-Men political activist artist and provide customers apparently gave the number of local groups tips about the Yes-Men call Telling Lies to Reveal the Truth. To start us off here's a clip from the documentary Yes-Men Save the World which introduces us to what the Yes-Men do.

And he is about to go on live television in front of 300 million people. They're going to think he represents one of the largest companies in the world. Which he doesn't. And that's why he looks so nervous.


>> Should I typically just look right into the camera? Okay. Let's see.

>> Andy is about to tell a really big lie, which unfortunately is going to wipe $2 billion off one stock price. But before I tell you this story, I guess I should tell you how we got ourselves into this situation. What we do is pass ourselves off as representatives of big corporations we don't like. We make fake websites, then wait for people to accidentally invite us to conferences.

>> My name is Fred. I'm from Halliburton.

>> MSN abridgment of from the WTO from Arizona

>> Hundreds of oil and gas executives were duped today.

>> Louisiana officials were taken for a ride by the yes men.

>> The yes men anti-globalization activists that travel the world pulling pranks at corporate events.

MAUREEN CAVANAUGH: World renowned troublemakers the yes men save the world. That was a documentary we just heard. One of the groups at the museum sponsored yes-men workshop the San Diego group Americans for safe access has taken responsibility for the hoax here in San Diego. We will be talking about hoaxes and art and what crosses the line legally. I'd like to introduce my guest Mark Sauer is KPBS senior news editor. Hi, Mark.

MARK SAUER: Hi, good to be here

MAUREEN CAVANAUGH: And Glenn Smith is constitutional law professor at California Western school of Law. Welcome.

GLENN SMITH: Thank you.

MAUREEN CAVANAUGH: We invite our listeners to join the conversation would you think about the value of political pranks and satire and using people should be held legally responsible for a political hoax. Give us a call with your questions and comments, 1-888-895-5727. Mark, I'm going to ask you to start us off by reminding us what was the substance of this hoax e-mail that we are talking about?

MARK SAUER: There were two e-mails actually two press releases sent out last Tuesday morning 31 July and they were under letter and looking pretty real live data feeds the US attorney here and they were purported to announce the closing within 45 days of pharmacies, legitimate pharmacies in various areas of San Diego because of abuse of prescription drugs. Now it should be pointed out there were a couple of red flags in a press release for anyone reading very closely. One is Laura Duffy purporting to say kids are overdosing on aspirin. Am I the nine site raised a flag and the other one quote was editorial discretion and I decide how and when to enforce laws which sounds like a pretty strong political statement for US attorney to be making.

MAUREEN CAVANAUGH: You're making the point therefore that if indeed this had been a legitimate message, press release from the US attorney's office in San Diego this would have been a huge story. Did media organizations print the news story?

MARK SAUER: You're right it would have been a huge story in a couple of folks to the Los Angeles times today and redirected at least we know of those couple of folks, some people did bite and again it is, get up in the website, we are competitive and as you say like a big story.

MAUREEN CAVANAUGH: Just so our listeners and we contacted the San Diego Museum of Art no one was available to talk with us today. We contacted attorneys for the assessment. There were also not available to be on the show and Americans for safe access the San Diego group responsible have appeared on the show were also not available to join us today. Mark tell us about the group Americans for safe access. What do they want?

MARK SAUER: This is the nation's largest medical cannabis advocacy group and what they want is for attorneys in California starting with Laura Duffy here in San Diego and three other US attorneys to back off on crackdown on medical marijuana dispensaries that was launched last fall

MAUREEN CAVANAUGH: Was there anyone okay on the press release was there anyone that a reporter was told perhaps to contact for more information?

MARK SAUER: Yes to add to the real nature, or that veracity of this particular release it says it at the end for press inquiries contact Steve (inaudible) project and secretary US attorneys southern district advocacy phone number so they call the phone number and I assume my colleagues even the one who bit on this called, perhaps didn't get a call back right away let's get the story about knows exactly how that went down but they called and at least 10 news in their report online, they called Mr. records and sending official and he's are presenting the US attorney's office, but several things he said trying to respond to legitimate reporters questions just didn't jibe. They sounded kind of squarely. So that sent up a red flag. They went to a different legitimate number for the US attorney's office and kind of the hoax was up.

MAUREEN CAVANAUGH: The hoax was exposed was the response of the US attorney's office?

MARK SAUER: They weren't pleased. If this was satirical and was supposed to have some humor, Laura Duffy's office didn't really respond with that. They had a press conference that morning after both of these hoax press releases were out. She said that this matter will remain under investigation to determine if it's appropriate to file charges. So they really weren't in on the satire and that wasn't a lot of fun for them at that particular press offering conference it's interesting a man came up and handed the reporters a note saying here's what was behind this it was a satire it was a hoax and turned and walked away and someone said is that going to be a suspect and they said yeah, well he is now, the US attorney says.

MAUREEN CAVANAUGH: I'd like to remind our listeners if you'd like to comment 1-888-895-5727 is the number to call. Glenn Smith, what do you think will, this investigation at the US attorney says is going to launch into the hoax?

GLENN SMITH: Of course it's impossible to comment on an ongoing investigation it would be really inappropriate or presumptuous. I would imagine what the US attorney's office is doing is engaging in the classic questions that any prosecutor engages in which is, what happened here? Does it make it a good claim under the applicable federal laws. Is there a federal law that makes it a crime to impersonate a federal officer including law enforcement officers. So is this a good case to bring even law, and there is perhaps a constitutional kicker to this thing. But also is a good exercise of prosecutorial discretion and resources. Am I spending the time after bad? Should I just leave it alone or is there an important point to be made by bringing some kind of a case here? So I think yeah, other than to speculate that that is what is going on and people are thinking about it is really, you could have a prosecution and trial and they claim. I don't think very strong, but a claim of free-speech rights, or you have an investigation is closed and everybody try to put this behind them.


MARK SAUER: Isn't there a bit? Of course we are speculating and watching the parade pass but isn't there a bit of a political problem for the US attorney in that it just tends, if you're going to proceed with a prosecution and everything that entails it's going to continue to shine a spotlight that we don't have a sense of humor we crack down on the folks in the Obama administration would put this in the back burner in terms of medical marijuana we didn't do it etc.

GLENN SMITH: Well I think that's right I'm not a prosecutor haven't been one but I think anyone who exercises this kind of strong government authority as to pick whether they're going to make their own political situation and only PR situation worse and just looking at the people, commenting on the website stories you've got very strong reactions people saying well here is the US attorney compounding her abuse of power and all of that. And so people left thing quite long and hard about whether it's just going to make these people more sympathetic and make their cause rather than you know be a deterrent to future abuse like this.

MAUREEN CAVANAUGH: Glenn, taking, reliving it because I know you don't want to comment specifically about this case, by removing it from the specifics of this case, isn't there, if someone is doing something in political speech, and satire, don't they have more of a leeway to get away with things that you wouldn't have if perhaps you impersonated a federal agent in order to gain some sort of monetary advancement?

GLENN SMITH: That's exactly right and for me regardless of the details of this and what's going to happen with this this is yet another reminder of the difficult balancing act that happens all the time with freedom of speech and legitimate government concerns. You are absolutely right. People do not have a right to make false statements in order to extort money or gain personal advantage, but when you, there are many cases that say when you get into the area where people are lying or making false statements about military honors or something like that and violating the law but they are doing it as part of a political or artistic point it does raise at least to borrow the term a red flag that the courts need to be in the government needs to be very careful about so that is kind of why this is not just a standard, somebody impersonates an FBI agent to try to get money and they are guilty kind of situation.

MAUREEN CAVANAUGH: In fact there was a recent Supreme Court decision about whether or not it is constitutional to restrict somebody from saying that they had a military honor that they didn't have.

GLENN SMITH: That's right and I think that's a very, the income that opinion is a month and a half old and so you have that kind of notion, that we do need to protect false statements that are part of a political statement, partisan political speech is alive and well. I will say that the court went out of its way in that case to distinguish statutes that were narrower including. Interestingly section 912 18 of the US code which is this law, is the main about impersonating a federal officer and said, that is different. They didn't of course decide it was constitutional or not but they distinguish a. So I think there's a strong basis for believing that at least in general federal laws that prevent people from also representing themselves to be federal officials are designed to be narrower and going after legitimate arms in a way that the stolen valor act was not. So probably you are okay in general but I think you just a question is as applied to a situation like this what is the answer and there might be a cloud at least over if there wasn't before.

MAUREEN CAVANAUGH: As I said at the opening we called all these people to participate in this particular segment of our show and there was a resounding silence

GLENN SMITH: Not surprising at all. That's good advice.

MAUREEN CAVANAUGH: So I'm just wondering yeah, you are an attorney. I'm wondering what is, by the way I want to make sure that our listeners know that we do have a response from the San Diego Museum of Art on our website we have the full response posted there if they'd like to see it. By what would be a potential responsibility of something like an institution like the San Diego Museum of Art? Apparently the way that they went they had a summer salon, they hosted the yes men to come in, talk to various groups about what kind of the collection they did the kind of political pranks they did and one of the groups took them real seriously and took the next step. What it's all about that the San Diego Museum of Art would have any liability of this?

GLENN SMITH: That is again, the law is often a question of interesting possibilities. I think it's even more remote when you start, when you back away from the person who committed the active impersonation himself, or the group into the person who arguably aided and abetted that are helped that out it becomes an even murkier situation. I suspect that most there was evidence that the museum about this and deliberately was trying to encourage people to violate federal law, that I would think that it gets even less likely as we go back in the chain. But there's always, with most crimes there's a possibility of being an accessory or aiding and abetting and those kinds of things, so I just again is part of why serious lawyers in town are looking at this carefully and trying to evaluate the risks

MAUREEN CAVANAUGH: Telling everybody to keep quiet.

GLENN SMITH: Yes apparently only foolish law professors are willing to come I hope I know I've said I don't have personal information identify personal opinion and trying to that the issues because as I said think this is a fascinating example of how something that might be cut and dry without the free speech issue is a little more complicated.

MAUREEN CAVANAUGH: Mark let's talk about the media responsibility in all of this.

MARK SAUER: Okay I think you took us through the idea that some media organizations call this fictitious US attorneys representatives and didn't sound quite kosher to them but not everybody seems to have done not on drugs turns out that was a hoax. Terribly embarrassing thing. I would say there were earlier reports to the web that were a few paragraphs long but once I saw they didn't make huge blowout stories up and basically because I think they probably quickly had a chance to vent this properly and get the comment from Laura Duffy's office. And it's interesting to note a lot of us who deal routinely with media spokespeople, with offices such as the US attorney are familiar with the folks at those jobs. And this was not someone I recognize. I happen to know the US attorney spokesperson is right now. And so it is surprising. You know I don't know I'm not in the newsrooms. I don't know if they had some inexperienced reporter or somebody make a quick call let's just get this out.

MAUREEN CAVANAUGH: Talk to us a little bit about the volume of the news organization has to go through, though. Because we heard from the clip that we played the beginning of the segment that the yes men at least have fooled a lot of media organizations including the BBC. I mean, international, Fox news. International organizations you know by having people purport to be corporate spokespersons who come on and say things that the Corporation is just simply not true. So I do something like that happen?

MARK SAUER: Well from official sources and personally I get 80, 100 e-mails a day from all sorts of people, people pitching stories just like this and from official official store since we all want to believe the people are telling the truth most of the time. We want to believe that when you get an e-mail from the County Sheriff or the police or the US Atty. Or Dist. Atty. Or the Mayor's office that that the mayor's folks they are telling the truth and this is news worthy of consideration to put on the air or to publish, so you go in with that mindset that people are telling us the truth and they are who they say they are. You don't expect an elaborate hoax to be played on you and really the target of the satire here was Laura Duffy by this group trying to as we said highlight her crackdown on medical marijuana dispensaries but some media got caught up as a kind of ancillary target.

MAUREEN CAVANAUGH: If nothing else is kept everybody on their toes and will keep the legal profession on its toes as well. I've been speaking with Mark Sauer KPBS senior news editor and Glenn Smith constitutional law professor at Cal Western school of Law. Thank you both very much.

BOTH: You're welcome.