Wednesday, September 23, 2009

Why ACORN's suit against 'pimp,' 'hooker,' and Breitbart.com is probably doomed

Today ACORN and two former employees filed suit against the young filmmakers who videotaped Baltimore employees of the community organizing group dispensing advice to a fake pimp and prostitute, as well as against the web site that publicized the videos, alleging violations of Maryland's law against surreptitious audio recording. The lawsuit, which seeks monetary damages and an injunction against further broadcast of the videos, is unlikely to succeed. Here's why.

First, the facts. The filmmakers, James O'Keefe, 25, and Hannah Giles, 20, visited ACORN's Baltimore office in the early summer of 2009, seeking advice on how to set up and run a brothel staffed by underage Salvadoran hookers. ACORN workers Tonja Thompson and Shera Williams gave such advice to O'Keefe and Giles, as the Borat-esque pair secretly videotaped their conversation; here's Part I and Part II, and a transcript. The meeting appears to have taken place in a conference room in the ACORN office. The door is open, and children can be heard, apparently from the adjacent room. After making the video, O'Keefe approached Andrew Breitbart, the conservative web entrepreneur, who publicized the videos on his BigGovernment.com site. (I've seen no indication that Breitbart participated in the Baltimore recording, or was even aware of it until after O'Keefe and Giles shot the video.) ACORN fired Williams and Thompson September 10, shortly after BigGovernment.com broke the story.

ACORN's complaint, filed in Maryland state court, names O'Keefe, Giles, and Breitbart.com LLC as defendants, and includes a single count, for violation of Maryland Courts and Judicial Proceedings Code §§ 10-402(a) and 10-410. Section 10-402(a) makes it unlawful to "[w]ilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any ... oral ... communication" or to "disclose" or "use" any such communication. Section 10-410 provides that a successful plaintiff is entitled to "[a]ctual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher," punitive damages, and attorneys' fees. The complaint demands $1,000,000 for ACORN and $500,000 for each of the individual plaintiffs, plus punitive damages of $1,000,000 against each defendant, and an injunction against further broadcast of the videos.

Maryland's statute requires consent from all parties to record -- which the defendants clearly appear to have lacked. But, crucially, courts have interpreted the statute to apply only where the plaintiffs have a reasonable expectation of privacy ("REP"). See Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997) (no REP where voices can be heard outside apartment where conversation occurred); Benford v. ABC, 649 F. Supp. 9 (D. Md. 1986) (question of fact for jury whether plaintiff had REP during sales presentation inside private home). While the law in Maryland itself is scant, and the question is not entirely free of doubt, I think it unlikely that a Maryland court would find that ACORN and its employees had a REP in the circumstances here. Thompson and Williams were speaking with complete strangers they had just met. They were meeting in an office open to any customer who happened to wander in off the street. Though the meeting itself appears to have occurred in a conference room, the door was open. And it appears likely that their voices could be heard outside the room; after all, in the video, we can hear children's voices carrying into the room where the recording occurred.

Cases from outside Maryland in which journalists have conducted hidden-camera investigations in places of business generally hold that plaintiffs alleging violations of similar statutes or common law duties do not have a REP when interacting with customers. See, e.g., Med. Lab. Mgm't Consultants v. ABC, 306 F.3d 806 (9th Cir. 2002) (no REP during meeting with reporters posing as customers in medical lab conference room, even where doors were closed); Desnick v. ABC, 44 F.3d 1435 (7th Cir. 1995) (no cause of action for trespass against reporters posing as patients in medical offices; "The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves)."); PETA v. Berosini, 895 P.2d 1269 (Nev. 1995) (in suit brought by animal rights activists who videotaped trainer's alleged mistreatment of orangutans, trainer had no subjective expectation of privacy in a hotel's backstage area where "[h]e had nothing to hide-nothing to be private about"); but cf. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (upholding jury verdict of trespass against journalists who gained employment through deception and filmed in non-public portions of supermarket, though rejecting claim for damages based on broadcast of videos made during trespass).

Aside from the plaintiffs' lack of a REP, the defendants have at least one other potential defense under the statute. Violations of section 10-402(a) must be "wilfull," meaning "either an intentional violation or a reckless disregard of a known legal duty." Benford, 649 F. Supp. at 10. O'Keefe and Giles may be able to argue that they did not actually know of their legal duty to obtain the ACORN employees' consent before recording; ignorance of the law can, in certain circumstances, provide a defense.

Lastly, I think the claim against Breitbart.com, including the request for an injunction against further broadcast of the videos, is clearly barred by the First Amendment pursuant to the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). In Bartnicki, the Court held that a journalist could not, consistent with the First Amendment, be held liable for broadcasting a recording made in violation of federal and state wiretap statutes, as long as: 1) the journalist played no role in making the illegal recording; and 2) the recording involved a matter of public concern. Again, as far as I am aware, Breitbart had no involvement in the actual recording. And there is no doubt that the exposure of ACORN employees advising supposed pimps and prostitutes how to conduct their business is a matter of public concern. The disclosures led both the House and Senate to vote to cut off funds to the organization, and the Census Bureau and the IRS have both announced they will no longer work with ACORN. Holding a news organization liable for broadcasting true speech on a matter of public concern, or, even worse, enjoining further publication, would be a grave First Amendment violation.

Disclosure: Andrew Breitbart is a friend. I have not spoken with him about the ACORN matter.

9 comments:

  1. Excellent article! Very well written and laid out.

    Thanks for posting; I was wondering about the merits of Acorns claim and wording of the Maryland Statute.

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  2. in a similar matter, I cited Lachman v. Sperry-Sun, and cases following Lachman, as an equitable and legal defense. The gist of those cases is that the law may ignore a plaintiff's claim that wrongdoing should have remained covert.

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  3. thank you for the excellent analysis. If I were representing the defendants, I think I would also propose to assert that the courts should find an implicit public policy exception to the statute, that is, where the surreptitious recording has a purpose to root out criminal behavior. This case would be compelling on such a theory.

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  4. Superb analysis. One additional thought: lack of proximate causation. The damages claimed are primarily reputational damages. But the defendants here could have achieved the same thing without recording them -- simply by repeating orally the conversations they had with the ACORN employese. That would involve no violation of the statute at all and would damage their reputation.

    True, the recording gives the undercover journalists' claims added credibility -- it's much harder for the ACORN people to deny the conversations. But is that corroboration a proximate cause of the reputational damage? Especially since in defamation cases truth is an absolute defense. The statute, after all, is meant to protect privacy interests, not reputational interests. Confirming the truth of true defamation to me is hardly the purpose of the statute and cannot be the legal cause of the reputational damage.

    What do you think?

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  5. It would take a politically insensitive judge to let ACORN prevail on this suit. That judge would be the next Judge Ito as he or she would be crucified in the court of public opinion.

    Even better, if I were on the jury, it would be "jury nullification time!"

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  6. Does the fact that both ACORN and ACORN Housing forfeited their Maryland corporate charters before the incident occurred preclude them from suing in Maryland courts as said corporations?

    It was my understanding it did, that by forfeiting their corporate charters in the state they also forfeited the right to sue. While I understand the charters are easily restored by simply paying the back taxes and fees/fines and filing the unfiled reports, would that restore their right to sue as corporations for incidents that occurred while they were out of compliance, as they had no "right" to do business in Maryland at the time of the incident?

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  7. The case law you cite does not support your conclusion as to the REP issue. Under Maryland law, it is a fact issue. Benford v. ABC, 649 F. Supp. 9 (D. Md. 1986). That means it heads to a jury.

    The cases you cite concerning press reports are not relevant. Med. Lab. Mgm't Consultants v. ABC, 306 F.3d 806 (9th Cir. 2002) is a common law intrusion upon seclusion case; obviously that is not a good claim for a business that meets with customers.

    Desnick v. ABC, 44 F.3d 1435 (7th Cir. 1995) involved ONE-PARTY consent wiretap laws; the issue of two-party consent was never litigated. Again, your citation is irrelevant.

    Finally, PETA v. Berosini, 895 P.2d 1269 (Nev. 1995) like the Ninth Circuit case above, is an intrusion into seclusion privacy case. It is again obvious that one can't complain about intrusion into seclusion when one is meeting with a third party.

    The REP issue in wiretapping and eavesdropping cases always revolves on whether a random member of the public might be expected to overhear the conversation. If the answer is yes, then there is no REP. If the answer is no, then there is an REP as to that kind of intrusion.

    On Breitbart's constitutional defense, is it clear that he had nothing to do with the video? You say there is no indication that he did, but the Washington Post reported that Breitbart was contacted last summer, and that he advised on how to put the videos together. It seems to me that he did have a role.

    To sum up: you are quite wrong that a Maryland court will find, as a matter of law, that the fake pimp and whore are not liable. This case will go to a jury unless there is some critical unknown fact. What a jury will do is impossible to say in advance.

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  8. @Cyrus Sanai:

    I disagree with your conclusion. While, as I wrote, the question is not entirely free from doubt, I think it is likely that a Mayland Court would not find an REP here. The federal district court in Benford did say it was a fact issue. However, those circumstances were quite different; the recording was done inside a private home, not an office open to the public. Notably, the Maryland appellate court in Malpas found no REP where voices could be heard outside the apartment where the recorded conversation occurred -- a situation analogous to the one here (and probably more deserving of privacy because it involved a residence, rather than a place of business).

    Your statement that cases like Med. Labs., Desnick and PETA are "irrelevant" is silly. Though those involved different statutes or torts, the courts were still analyzing REP in the context of unconsented recording. They are highly relevant.

    Lastly, the Washington Post article makes fairly clear that the pair made the recordings, and then, afterward, brought them to Breitbart: "When O'Keefe had filmed the first two videos -- in the District and Baltimore -- a friend urged him to share his project with Andrew Breitbart, a conservative Internet entrepreneur who had plans to launch an anti-liberal site called BigGovernment.com. Breitbart said he was skeptical after a June phone call with O'Keefe about what he had, but when the video was rolling in his basement office in Los Angeles in late July, Breitbart said, he gasped."

    http://www.washingtonpost.com/wp-dyn/content/article/2009/09/17/AR2009091704805.html

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  9. My husband is currently in a case involving wiretapping in Maryland.

    I was running for public office and kept getting the run around about where my district lines were.

    We went to City Hall to get clarification and ran into the Mayor. He said that he wanted to talk to us and we went out on the front steps of City Hall. My husband is an auctioneer and uses a tape recorder in his business everyday. When the Mayor started in on what turned out to be a 37 minute rant,unbeknownst to me hubby clicked the on button.
    During the rant the Mayor implicated the city in all kinds of stuff that we had been accusing them of over the last few years, and publishing them on our very controversial blog.
    As soon as we got home hubby sends a copy of the tape to the AG and the local SA's office to ask if destroying public documents under an active FOIA was still a crime.
    The answer came two days after the election when my house was surrounded by police from 2 different agencies with guns drawn arresting my husband for wiretapping.
    After they cuffed and stuffed him, they told me that they had a search and seizure warrant for all devices that had the capability of hoooking to the internet.
    They took everything! Over $10k in hardware including cameras, cell phones, and computers, and another $10k in software.
    Now $10k to our lawyer, and 7 months later they still have our stuff, and are still pursuing the felony charges. Because the Mayor is now seeking a seat in the State House, and our comments and ridicule are hurting his efforts.
    Keep in mind..
    We are in a public place
    Discussing public policy
    with a public figure
    and I was a candidate for public office.

    Where exactly is the REP here?
    Small town living at it's finest!

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