ACORN has fired the two employees shown in the recent undercover video by filmmaker James O’Keefe of Veritas Visuals— showing the staffers advising a faux pimp and prostitute (here) on how to get federal assistance and lie on federal forms. Now, however, it is threatening legal action in what would be part of a trend of cases involving companies and organizations suing investigative reporters and filmmakers.
For those who missed the controversial video, I have included it below.
The filmmaker and his friend Hannah Giles adopted false identities and brought a hidden camera to capture the consultation with ACORN. Four ACORN workers appear involved at various points in the film.
ACORN chief organizer Bertha Lewis charged that O’Keefe may have committed a “felony” with his operation and suggested that the organization might take legal action:
“It is clear that the videos are doctored, edited, and in no way the result of the fabricated story being portrayed by conservative activist ‘filmmaker’ O’Keefe and his partner in crime. And, in fact, a crime it was — our lawyers believe a felony — and we will be taking legal action against Fox and their co-conspirators.”
O’Keefe denies the allegations of dubbing or fabricating parts of the film. If these allegations are untrue, ACORN itself could face defamation charges since it is alleging professional misconduct on the part of O’Keefe.
If ACORN sues civilly, any litigation would turn on a series of prior (and controversial) cases. I am not sure ACORN wants this company of litigants. Most of these plaintiffs were stores and businesses accused of gross practices.
In Food Lion v. ABC , a store was shown in an undercover segment engaging in unsanitary techniques and accused Food Lion of selling rat-gnawed cheese, meat that was past its expiration date and old fish and ham that had been washed in bleach to kill the smell. Food lion denied the allegations and sued ABC for trespass. A jury ruled against ABC and awarded Food Lion punitive damages for the investigation involving ABC journalists lying on their application forms and assumed positions under false pretenses. (here). The Fourth Circuit however wiped out the punitive damage award while upholding the verdicts of trespass and breach of loyalty with awards of only $1 for each.
This case would come closest to a case out of the Seventh Circuit. Judge Richard Posner wrote the decision in Desnick v. ABCwhere investigative reporters went undercover in 1993 to show that employees of the Desnick eye clinic had tampered with the clinic’s auto-refractor, the machine used to detect cataracts so that the machine produced false diagnoses to find cataracts (and require procedures). The court rejected wiretapping claims (based on the state’s one-party consent rules) as well as trespass and defamation claims. On trespass, the court noted that the reporters were allowed into areas open to new patients. Posner relied on the consent to the entry to negate the trespass claim even when the entrant “has intentions that if known to the owner of the property would cause him . . . to revoke his consent.”
That seems quite close to the ACORN case. Maryland does appear to be a state requiring the consent of all parties, which would allow for a criminal charge and a difference with the Illinois case. Such charges are being called for by some in Maryland, here.
It would make a difficult civil case. More importantly, ACORN will have to decide whether the powder is worth the prize in keeping this scandal alive while it is also facing various charges of illegal practices related to voter registration.