Alert 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 bang-up, careful, apparently legally sound analysis here. Click the link and read it all, but here are a couple of key grafs:
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”). . . . 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.