Patterico's Pontifications

9/23/2009

ACORN Sues Breitbart, O’Keefe and Giles (Updated)

Filed under: Law,Politics — DRJ @ 5:47 pm



[Guest post by DRJ]

ACORN and two former Baltimore office employees have filed a multimillion dollar lawsuit against Andrew Breitbart, James O’Keefe and Hannah Giles:

“The liberal activist group contends that the audio portion of the video was obtained illegally because Maryland law requires the consent of both parties to record private conversations.

The employees seen in the video, Tonja Thompson and Shera Williams, were fired after it was posted online. Thompson and Williams are plaintiffs in the lawsuit, which says they suffered “extreme emotional distress with attendant physical symptoms and injury to their reputations.”
***
The lawsuit claims the video damaged ACORN’s reputation and asks for injunctions barring its further broadcast or distribution. It seeks $2 million in compensatory damages — $1 million for ACORN and $500,000 for each of the two former employees — as well as $1 million in punitive damages from each of the three defendants.”

I’m sure he didn’t mean it this way, but it sounds like the plaintiff’s lawyer asserts the secret video violated his clients’ right to be dumb:

“Andrew D. Freeman — an attorney for ACORN, Thompson and Williams — said the former employees did not wish to comment but that the emotional distress claim “is not an exaggeration.”

“They’re doing their best not to watch television. They’ve sort of been prisoners in their own homes,” Freeman said. “While everyone, including them, agrees that some of the things they said were dumb, in Maryland we have a right to say dumb things in the privacy of our homes and offices without fear of being taped and without fear of being splashed all over the Internet.”

Is there a right to be dumb while using federal funds (excluding Congress, of course — that’s a given)?

I can’t believe ACORN filed this lawsuit. It could be as riveting as the O.J. case except, unlike a criminal case, a civil case has discovery. ACORN will undoubtedly do everything it can to have discovery sealed and request a gag order on the parties and attorneys, and that may partially explain why the lawsuit is framed as a privacy issue.

H/T Audacity.

— DRJ

UPDATE: Ken at Popehat looks at some of the legal and political issues of ACORN’s lawsuit and concludes: “What was ACORN thinking?”

48 Responses to “ACORN Sues Breitbart, O’Keefe and Giles (Updated)”

  1. I don’t know. I keep thinking about the Ryan business, but in reverse. They might actually keep this sealed, and burn O’Keefe, Giles, and Breitbart down to bedrock.

    But the cost!

    And there is one thing we know about this Adminstration, above all: they have no compunctions about throwing inconvenient people under metaphorical busses.

    Eric Blair (0b61b2)

  2. […] it looks like they are looking for around $5M in total, according to DRJ at […]

    Gazzer’s Gabfest » Where do I send the check? (b98ad6)

  3. Wish I could do the depo: “Ms. Thompson, what, in your mind, is the reason that ACORN fired you?”
    BWAHAAHAAA!!!(Sorry, boy do I miss the practice of law).

    Rocin (606cf6)

  4. There should be no shortage of excellent attorneys lining up to defend this. The.interrogatories and depositions should be priceless.

    JD (cbe522)

  5. And there is one thing we know about this Adminstration, above all: they have no compunctions about throwing inconvenient people under metaphorical busses.

    Comment by Eric Blair — 9/23/2009 @ 5:58 pm

    Indeed, Eric, and one can only hope that lotsa bad blood is forming behind the scenes – to be expressed passively aggressively, of course, givn the power imbalance – between ACORN, its allies, and said administration.

    Thanks for posting on this, DRJ. Allahpundit points out that discovery might be quite different if the legal question is wiretapping rather than defamation.

    IANAL so am looking forward to seeing the legal questions discussed here by you as well as others.

    no one you know (1ebbb1)

  6. This is the kind of thing we hope for but rarely get. CAIR made the same dumb move but quickly backtracked once they realized what they had done. Discovery, discovery, discovery. This is a civil suit. There is no reason for this to be anything but public.

    “I refuse to have a battle of wits with an unarmed [organization]”

    Mike K (2cf494)

  7. no one you know,

    There are fewer limits on discovery than, for instance, permissible questions at trial. But there are limits, and I suspect ACORN and its former employees avoided a defamation claim for that very reason. But what they avoided on the one hand they may have opened the door to on the other, because it sounds like all the plaintiffs sued for damage to reputation … so that puts reputation in issue and opens the door to discovery on that point. In most courts, that opens a pretty big door.

    In addition, the defendants may decide to countersue.

    Finally, I’m sure the parties will argue over the limits of discovery if the lawsuit gets to the discovery phase. While I have no special expertise in this area, my guess is the biggest and most telling battle will be over whether the proceedings are sealed and the parties subject to a gag order.

    DRJ (b008f8)

  8. ACORN is so vast and deep, they’ll have to use crowdsourcing to analyze all the discovery materials. Imagine the Obama-related correspondence and documents that lie dormant, waiting for exposure. Probably right now is a good time to do some dumpster-diving at ACORN offices, to see if the volume of shredding is increasing.

    gp (7978f7)

  9. I would notice the depos of Rayhke and embezzler Rathke and Bertha Lewis ASAP.

    JD (cbe522)

  10. Does a corporate entity which was operating illegally in the State of Maryland have standing to enter into any lawsuit not related to its failure to comply with regulations about its operation in that state?

    http://biggovernment.com/2009/09/15/exclusive-acorn-illegally-operating-in-maryland/

    j.pickens (8b5ad5)

  11. So does ACORN have a case against the filmmakers? It would appear those two have broken the “privacy” law, although I wonder if that applies to the journalists who rely on undercover operation for the expose.

    lee (86706b)

  12. Although I haven’t researched the issue, I note that the Reporters Committee for Freedom of the Press claims:

    To recover civil damages, however, a plaintiff must prove that the defendant knew it was illegal to tape the communication without consent from all participants.

    I don’t see that on the face of MD. Code Ann., Cts. & Jud. Proc. § 10-410, but if that has been the judicial gloss, ACORN likely has nuthin’.

    Karl (246941)

  13. Isn’t this just another example of a big corporation trying to use the courts to cover up embarrassment? It’s funny to see the tables turned, though.

    Is there anything from the Food Lion vs ABC case that would apply? Yes, I know there are different initial venues, but it was finally resolved at the circuit court level.

    SomeOtherSteve (6ced76)

  14. sidebar suggestion: please go out and save as many of these ACORN clips as you can find, in the event some judge is dumb enough to actually issue an injunction against biggovernment.com

    redc1c4 (fb8750)

  15. SomeOtherSteve,

    The Food Lion case involved different causes of action, too. Nevertheless, on appeal, the verdict against ABC was reduced to $2.

    Karl (246941)

  16. […] to be Dumb Heh, this is quote of the day. ACORN is filing suit, claiming… “While everyone, including them, […]

    Right to be Dumb « Something should go here, maybe later. (2b7e85)

  17. “Discovering Discovery”….I may use that as the name of my next album.

    driver (29b6de)

  18. This suit has some very dramatic legal problems — the Food Lion doctrine, the Bartnicki doctrine, the definition of “private conversation,” etc. I managed a quick-and-dirty analysis here, with links to relevant cases and statutes.

    Ken (c97a0c)

  19. Crap. Sorry, that link should be this one.

    Ken (c97a0c)

  20. Good post, Ken. I’ve updated this post to link it.

    DRJ (b008f8)

  21. I can’t wait until it dawns on those dopey employees that Acorn is not their friend; Acorn fired them! Their interests and Acorn’s, shall we say, are not one and the same in this lawsuit. The lawyer playing good cop/bad cop should have fun.

    Patricia (c95a48)

  22. That Popehat person is one I like.

    JD (12ebb1)

  23. Question by Teh One at the next staff meeting when they get to the spot on the agenda marked ACORN:

    Who’se the …king idiot that opened Pandora’s Box?

    AD - RtR/OS! (97af1e)

  24. It’s worse than Ken thinks, because Maryland does have an anti-SLAPP law.

    Karl (246941)

  25. Could Acorn, knowing they can’t win, simply be bringing this case in a desperate attempt to have a court bar anymore Acorn tapes from being released during the duration of the case?

    They might be thinking there are a dozen more tapes even worse than the ones that have been aired and it’s driving them crazy.

    j curtis (baef6f)

  26. #24 Karl:

    It’s worse than Ken thinks, because Maryland does have an anti-SLAPP law.

    Ah, good catch. Thanks.

    EW1(SG) (edc268)

  27. […] Thinker Politico Patterico No TweetBacks yet. (Be the first to Tweet this […]

    ACORN suing James O’Keefe, Hannah Giles and Breitbart over hidden camera videos! | Fire Andrea Mitchell! (20d20a)

  28. They might be thinking there are a dozen more tapes even worse than the ones that have been aired and it’s driving them crazy.

    Comment by j curtis — 9/23/2009 @ 9:22 pm

    That they’re thinking this is definitely true in any case. I hope many, many employees in offices nationwide aren’t getting ANY sleep. /evil levels of schadenfreude

    no one you know (1ebbb1)

  29. Didn’t Breitbart also publish documents showing that ACORN forfeited its corporate status in MD? If so, how can it sue? In CA a suspended corporation cannot sue. Is MD law different, or did ACORN get reinstated?

    Jim (aca8e6)

  30. Acorn files a SLAPP suit. Breitbart, et al get discovery, then moves to dismiss the SLAPP suit and gets it dismissed…

    kimsch (2ce939)

  31. Interesting thought, j curtis. Could a MD court order a CA entity not to broadcast a MI event? And would that court have any jurisdiction if such order were violated?

    John Hitchcock (3fd153)

  32. The suit will be one of hundreds designed solely to force Brietbart and the kids into bankruptcy. Suits will be filed into perpetuity. The Left never ever gives up. “If you can’t win the game then win the fight after the game” sort of covers it.

    Howard Veit (0d2b4f)

  33. The Democrats run the risk of the voters sticking up for O’Keefe and Giles in their support of ACORN’s suits and Frank & Co. doing Congressional investigations. I would think the average voter would vote out the Democrat bullies.

    PCD (1d8b6d)

  34. DRJ, thanks for the link.

    This morning I did an analysis of Maryland’s anti-SLAPP law and concluded that it is vague, it sucks, and it won’t be much help.

    Ken (c97a0c)

  35. Generally speaking, if ACORN and ACORN Housing forfeited their corporate charter(s) in Maryland, they forfeited with it the right to sue in Maryland as corporations. They were legal non-entities in Maryland at the time of the incident, and would have no standing.

    Tully (c2f070)

  36. I’ll tell you what ACORN was thinking. They thought that hiring a lawyer who was probably a fellow believer in the left-wing causes was a great idea.

    Instead of a lawyer who was actually … you know, competent.

    SPQR (26be8b)

  37. Pennsylvania is a 2 party consent state too, and PA has a very strict electronic surveillance law in the Crimes Code. I think O’Keefe and Giles did some great journalistic work. But I’ve read they went to ACORN in Philadelphia. If they didn’t do some due diligence on the visual and audio taping laws in the states they visited, they’ve put themselves at risk under both civil and criminal law. At least in PA and maybe elsewhere. I was even a bit hesitant about making this comment, but wiretaping laws aren’t much of a secret. Maybe they went forward knowing the risks, maybe not. If they did so knowing the risks, more kudos to them.

    rfy (0f1c61)

  38. “What was ACORN thinking?”

    They weren’t thinking at all. For the past 40 years they haven’t had to! They have been given a free pass by the “compassionate” liberal media, as well as buckets of money from the taxpayers, foundations, and corporate flak catchers.

    I think their free pass just expired.

    Patricia (c95a48)

  39. It would be fun if Patterico, DRJ, and Juan conducted the depositions.

    JD (9d8cb8)

  40. To recover civil damages, however, a plaintiff must prove that the defendant knew it was illegal to tape the communication without consent from all participants.

    The court threw out that interpretation in the 2000 Deibler case. “Willful” just means “intentional,” and doesn’t require knowledge of the statute.

    jpe (08c1dd)

  41. On the plus side from the point of view of the Baltimore chapter, they are viewed favorably by the local paper. Here, for instance, is Julie Bykowicz’s Page One article, ACORN’s record of abrupt advocacy: Social justice group that’s imperiled by controversial video is known for in-your-face tactics from this past Sunday (story goes into the paid archives after a couple of weeks).

    I wrote to Ms. Bykowicz, quoting the paragraph at which her article breaks to continue on page 23. It contains the first indication that anything might be amiss at ACORN:

    “But nationally and locally, ACORN has always struggled to makes ends meet, and its in-your-face tactics have alienated many lawmakers, even in Democrat-dominated Maryland. Its nationwide voter registration efforts in urban, heavily Democratic areas have made it a target of Republicans, and it has faced criticism for bad bookkeeping and potentially improper relationships among its many affiliates, some of which are required by law to remain nonpartisan.”

    So, as we leave page 1 and consider heading to page 23, here’s what readers have learned is newsworthy about ACORN.
    — They go door-to-door to fight for change.
    — The Baltimore chapter has been plucky since its beginning.
    — ACORN has struggled to make ends meet.
    — It uses in-your-face tactics that sometimes even alienate Democrats.
    — Nationwide, it has been targeted by Republicans for voter registration efforts.
    — It has faced criticism from some unnamed party for bad bookkeeping.
    — It has also faced criticism from some unnamed party for potentially improper relationships among its affiliates.

    This is how you and your editors chose to use the newspaper’s prime space. With this anodyne narrative, you imply that there’s not much substance to the ACORN story…

    …I don’t subscribe [to the Sun] to read cheerleading. For instance, your paper’s typical ferocity when it comes to writing about Republican and conservative misdeeds is usually fine. I can sift through the details myself. My conclusions might or might not align with Sun writers’ and editors’ viewpoints.

    But your soft-pedaling of this major, complex, still-developing national and local scandal is different.

    Here’s the heart of the problem: I have stopped relying on the Baltimore Sun‘s news section to give me a reasonably accurate account of stories that reflect badly on the Leftist or Green agenda. I expect to have some key unfavorable details omitted and others elided. I expect to see the overall account spun to the benefit of the positions taken by the Sun‘s editors and publisher on the Editorial page.

    In this, regard–sadly–you did not disappoint…

    I expect ACORN and its lawyers are counting on Ms. Bykowicz and her colleagues to continue parroting the organization’s heroic self-assessment while sugar-coating its sordid reality. That can only help, if and when it comes time to select a jury.

    The Baltimore Sun, by the way, is a sister paper to the bankrupt Tribune Co.’s LA Times.

    A. Mackay (c822c9)

  42. […] reader Hank K. (happy birthday, Hank!) asked for my opinion of that ACORN lawsuit against Breitbart, Hannah Giles, and James O’Keefe. Luckily, I don’t have to analyze it because Ben Sheffner already has — and did a […]

    Patterico’s Pontifications » Ben Sheffner on the ACORN Lawsuit (e4ab32)

  43. What I am opposed to is the fact that these Giles & O’Keefe did not provide all the footage from the tapes, they selectively editted, then Beck and Fox ran the unvetted videos as if they were FACTS. Additionally, Republican Senators acted as if they were FACTS and stopped funding to a non profit organization that provide support/assistance to the poor. Why? All because the big boys in Business and at Fox do not like ACORN.

    We, the american public, demand accountability. I, like the President, invite a FULL Investigation.

    We know 3 things for a fact:
    1. The videographers LIED when they said on Fox News (Hannity’s show) that no ACORN Office turned them away. The office in Philadelphia turned them away and this is all documented in a Police report. There is also a report in the LA Times that they were turned away and they recommended Giles go to a woman’s shelter. They were also turned away in San Diego.

    2. We know the two videographers BROKE THE LAW by filmiing illegally in at least 2 states.

    3. Now we learn O’Keefe has been receiving tens of thougsands of dollars from a secret Republican donor. We should hear more about that early next week.

    So much for their credibility.

    The bottom line is, FOX and the RNC hate ACORN and have used these two privileged stooges as their pawns. Typical Republican trickery. If they really wanted to go after someone, why didn’t go after the real bad buys like Blackwater and Halliburton!

    dee321 (d933d1)

  44. “then Beck and Fox ran the unvetted videos as if they were FACTS”

    dee – Unvetted by WHO? You? Obviously they were vetted enough for broadcast. Do you believe somehow the stupidity of the illegal conduct encouraged by the ACORN employees was somehow doctored or faked by editing?

    “The office in Philadelphia turned them away and this is all documented in a Police report.” – Sorry. The police report just says they were not there when the officer arrived.

    “We know the two videographers BROKE THE LAW by filmiing illegally in at least 2 states.” – Dee are you a lawyer, because a whole lot of lawyers disagree with you?

    “Now we learn O’Keefe has been receiving tens of thougsands of dollars from a secret Republican donor.” – How about a link dee? How does that affect the content of the videos?

    Face it dee, ACORN is an arm of the Democrat party and a criminal enterprise. It needs to be put out of business. Your protests are just a smokescreen.

    daleyrocks (718861)

  45. They were also turned away in San Diego.

    The San Diego office accepted them.

    Lewis’s statement was removed from Acorn’s Web site after a video was posted with an Acorn worker from San Diego suggesting how to smuggle girls across the border.

    We need better liars trolls.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  46. Lewis’s statement was removed from Acorn’s Web site after a video was posted with an Acorn worker from San Diego suggesting how to smuggle girls across the border.

    Comment by Brother Bradley J. Fikes, C.O.R. — 9/26/2009 @ 8:21 pm

    Is that for real? hahahahaha Then ACORN leadership really is as stupid as I think they are. Awesome. Got two words for you Ms. Lewis:
    screenshot
    YouTube

    no one you know (1ebbb1)

  47. Comment by JD — 9/24/2009 @ 9:41 am

    What, I don’t get to ask a few?

    “Are you God Damn high?” would be one of my first…

    Scott Jacobs (d027b8)


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