Ben Sheffner on the ACORN Lawsuit
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.
Good stuff. Meanwhile, if you want to donate to Giles’s defense fund, you can do so here. (Apparently there are no details regarding a fund for the other two yet.)
Supposedly Maryland has a anti-SLAPP suit law. All this suit by ACORN is a SLAPP suit and retaliation for being caught in their corruption.
Now if Rep. Steve King can get fair, honest, and actual investigation and audit of ACORN going…
PCD (1d8b6d) — 9/25/2009 @ 6:15 amIF resources are available, not sure if it would be better for it to get thrown out under anti-SLAPP law, or let it stand to see how much light can shine in the discovery process. Only problem is the discovery process would likely be stalled and dragged out forever.
MD in Philly (d4f9fa) — 9/25/2009 @ 6:32 amBreitbart.com shouldn’t need a defense fund. I presume it’s a for-profit enterprise, with proper amounts of insurance to cover such things. I would expect, though, that a defense fund for O’Keefe will be established soon… but if that really was his Andover uniform under his grandmother’s chinchilla coat (thank you, Jon Stewart), perhaps he doesn’t need one.
PatHMV (c31294) — 9/25/2009 @ 7:10 amBy the way, one of the dangers facing the defendants here is that even if the damages ACORN can show are non-existent, if they are awarded so much as just one dollar, then under the Maryland statute, the defendants are on the hook for their legal fees in bringing the suit.
We absolutely should contribute to Giles and O’Keefe. Breitbart’s legal position is much clearer, so I predict they are bounced out on summary judgment, or even failure to state a claim on which relief can be based, very quickly. So while Giles and O’Keefe will almost certainly win in the end, but they could be left all on their own fighting what’s left of ACORN’s resources.
PatHMV (c31294) — 9/25/2009 @ 7:14 amThe unknown here is the level to which the corruption of ACORN/Dem party extends to the courts. I’m gonna guess the ACORN folks think they’ve got the situation covered.
glenn (757adc) — 9/25/2009 @ 8:54 amThe suits are an attempt to ruin both parties
Howard Veit (0d2b4f) — 9/25/2009 @ 10:09 amfinancially. I believe Palin was hit by more than 200 of them, so many that she was forced out of office because there was no way to defend against the blizzard……
Not so. The MD courts subsequently held that “wilfully” just means “intentional.” Ignorance of the law is no excuse, ie.
jpe (08c1dd) — 9/25/2009 @ 11:08 amEven if there were a reasonable expectation of privacy in this public office: In the videos, either Giles or O’Keefe were visibly taking notes. There’s apparently caselaw to the effect that when the other side has consented to one method of “recording” the interview, e.g., by taking notes — which consent may be inferred as a matter of law from the lack of objection to the obvious method of making the recording — then there can be no objection to there being a back-up method of recording the meeting.
Beldar (69f5d9) — 9/25/2009 @ 12:14 pmBeldar, the caselaw says that consent to taping can be imputed from taking notes? That doesn’t right. In the absence of caselaw confirming that, the two modes of recording seem sufficiently different that one would have a tough time inferring consent for one from the other.
jpe (08c1dd) — 9/25/2009 @ 12:19 pmI thought the libs were all supportive of muckraking? I guess it is all a mater of whose ox is being gored.
Alta Bob (77de7e) — 9/25/2009 @ 2:32 pmIf you ever want to laugh so hard you will wet your pants, go over to mediamatters and read their scintillating posts and comments about this lawsuit.
JD (c48dbe) — 9/25/2009 @ 3:31 pmThe ignorance of the actual law by this site’s commentators is always fun to observe.
#1 Maryland has no anti-SLAPP statute. The past proposed statutes would not have covered this lawsuit.
#8 Beldar, how is your judicial hero, Samuel Kent, enjoying federal prison? You visted him yet? I am pretty sure you were his only defender; see http://www.volokh.com/posts/1193113667.shtml.
Just as in your defense of Kent, you are making it up on this issue. There is no caselaw concerning written notes in any of the two party consent jurisdictions I have reviewed, and I have reviewed most of the caselaw. As discussed below, the peculiar structure of the Maryland statute makes your suggested interpretation implausible.
So what is the reality? The reality is that the three defendants better get excellent trial attorneys.
Under most two party consent laws, Breitbart.com would easily walk; however Maryland’s statute at Section 10-402(a)(3) creates extremely broad recommunication liability in respect of the “contents” of the intercepted communication, as opposed to the recording of the communication itself. There is an interesting First Amendment argument as to summarizing liability, but if the liability here is for rebroadcasting, there will not be any easy argument under federal First Amendment grounds (I have no idea what free speech protections Maryland state law may have).
It is because the Maryland statute bans recommunication of content that open note-taking is not going to be important, since those notes were protected from disclosure by the statute in the first instance.
Sheffner’s analysis regarding the importance of “REP” is correct; that’s the critical issue. However, these three defendants are almost certainly going to go to trial if they do not settle, since the issue of REP is one of fact as Sheffner concedes when he cites Benford v. ABC, 649 F. Supp. 9 (D. Md. 1986). That means jury trial. How will a jury react? Depends on the jury.
Finally, the fake pimp and whore (though not Breitbart) are going to face the potential for prosecution for a while. That is truly worrisome, since a prosecutor can extract a plea, which then would be collateral estoppel in the civil suit as to liability.
Cyrus Sanai (ada6da) — 9/25/2009 @ 11:41 pm#12
I accidentally omitted text which is in caps
there will not be any easy argument under federal First Amendment grounds UNLESS IT IS UNDISPUTED BREITBART HAD NO ROLE (I have no idea what free speech protections Maryland state law may have).
Cyrus Sanai (ada6da) — 9/25/2009 @ 11:46 pmDidn’t 60 Minutes make its name on the hidden camera trick. Did 60 Minutes ever get sued for using the hidden camera?
It is funny how much people can change their view when a new party comes into office.
Alta Bob (e53677) — 9/26/2009 @ 7:46 am