ACORN Threatens Legal Action Against Filmmaker Over Investigative Film

logo180px-Sonyhdrfx1ACORN 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.

40 thoughts on “ACORN Threatens Legal Action Against Filmmaker Over Investigative Film”

  1. Byron:

    “Let the market ferret out stores like Food Lion and let the laws penalize them if they are selling tainted food products. The market is a much harsher master than the government could ever hope to be.”

    *******************

    Ah, young Byron, please see, “The Jungle,” by Upton Sinclair to dispel your pollyannish view that those solely concerned with making money will do anything at all to protect the public. Lest you think that was old news, I give you Peanut Corp. of America and Lehman Brothers–Bear Sterns, too.

  2. Mespo’s public policy argument is precisely on target. There are several traditional legal rules that provide good analogies, including the equitable defense of “unclean hands” and the “in pari delicto” doctrine. True story. I once had a man come into my office claiming that he had been defrauded in the purchase of a coin laundromat. I reviewed the contract and asked him questions about the financial disclosures that he had received. He admitted that he had had an opportunity to review tax returns, bank statements and profit and loss statements. He also admitted that the financial data appeared to be accurate based upon his experience in operating the business following the closing. So I then asked him the question I probably should have asked first: what is the factual basis for your belief that you were defrauded? He responded that the seller had verbally represented that he was able to pocket at least $200.00 a week in off the books cash from the machines, a claim which my potential client found impossible once he began operating the business. Needless to say I didn’t take his case.

    If Food Lion had been truly concerned with its reputation, it would have complied with the law, regardless of what it perceived to be common practice in the industry. The court should have tossed the case without a trial.

  3. “I’m wondering why people are so eager to believe every lie and false charge that anyone can level at the most successful community organizers in this country’s history. From every thing I’ve seen about them over the last twenty years, it seems a clear case of ‘certain people’ getting too ‘uppity’ so the corporate media and conservative thugs start falling all over themselves to demonize them.”

    Thats what makes this thing so cruel. Acorn appear to be guilty of nothing more than having some idiotic staff. Thats to be expected in any reasonably large organisation.

    The voting thing was nonsense and as far as I’m aware was proven to be. Acorn had some employees that where trying to rip it off by making up voter registration. Acorn found out and called the cops, who then told the republicans who then decided that instead of acorn being the victim of fraud , they’d say it was ACORN itself committing the fraud.

    So far I’ve not seen any evidence of any systemic malpractice or abuse, just stupid social workers saying things they shouldn’t.

    Now none of this has much to do with whether they have a good chance in any defamation suit. Personally I’d like to see ACORN sue the people behind the voter fraud stuff because its quite clear this has financially harmed the hell out of a very deserving organisation. But whether this is wise is an entirely different proposition.

  4. re Food Lion.

    I think this case goes to the heart of government regulation. It appears not to have worked. Let the market ferret out stores like Food Lion and let the laws penalize them if they are selling tainted food products. The market is a much harsher master than the government could ever hope to be. A few millions in fines from the government but metaphysical destruction from the market (i.e. you and I and our purchasing power. I do not like Food Lion and will not shop there, although I perceive it to be of low quality and not venal.)

  5. Break out google. Ahh the memories return.

    Food Lions Mistake was they didn’t sue for Libel but for fraud.

    ABC’s Food Lion Lies: A Study in TV Deception
    By JOSEPH C. GOULDEN
    http://www.aim.org/publications/special_reports/foodlion.html

    During the court battles between Food Lion and ABC, over 40 hours of unused footage were released that helped Food Lion’s case. In the unused footage, two undercover producers are seen trying to encourage violations of company policy; however, employees resisted and correctly followed sanitary practices. [12]

    What’s more, the ABC producers worked closely for months with the United Food and Commercial Workers Union, which has waged a bitter campaign against non-union Food Lion. The union proposed the story to ABC; provided disgruntled workers to testify about alleged food-handling problems; arranged for Dale and Barnett to observe the operations of a deli and meat market so they could pass themselves off as experienced workers; and obtained false job references for the producers and for an ABC photographer from friendly supermarket owners.

    Finally, and most troubling, is the fact that ABC did not present to viewers evidence that would have undercut its indictment of Food Lion. Start with state health reports: In 1992 in Virginia, for example, Food Lion ranked third in food sanitation practices among eight major supermarket chains, according to the Richmond Times-Dispatch. Then ponder a common sense argument–that Food Lion, then the nation’s fastest growing supermarket chain, would have to have the world’s dumbest customers to sell so much tainted food. Most important, consider the outtakes from the undercover tapes, which Food Lion lawyers obtained after a long, hard-fought battle with ABC. Transcripts of the tapes submitted to the court, which include more than 50 hours of unaired material, show that some of the broadcast material was taken out of context.
    http://www.ajr.org/Article.asp?id=349

  6. I have not read the case proper, but I do recall the ABC report and reading about it at the time. mespo is correct.

  7. bdman:

    “The broadcast included, for example, videotape that appeared to show Food Lion employees repackaging and redating fish that had passed the expiration date, grinding expired beef with fresh beef, and applying barbeque sauce to chicken past its expiration date in order to mask the smell and sell it as fresh in the gourmet food section. The program included statements by former Food Lion employees alleging even more serious mishandling of meat at Food Lion stores across several states. The truth of the PrimeTime Live broadcast was not an issue in the litigation we now describe.”
    194 F.3d 505, 507 (1998)
    ******************

    Food Lion conceded the truthfulness of the ABC report. There was no skewing of the facts here.

  8. Mespo thats the whole thing. The videos were edited to make it look like they were selling tainted products when in fact they were not doing anything different than industry standards.

    The Agriculture Dept. inspects grocery stores. The inspector on his/her visit usually did three things. Inspect dates on milk, light bulb check yokes on eggs and cooked samples of ground beef for fat content. The meat dept at all grocery stores really had no state or federal regulations, there was a false sense of security because meat is stamped and approved prior to being received at the store level. The meat departments back then would take a package after it’s sell date, would open it, smell it, rerap and give it a couple more days at full price. That was the industry standard. ABC made it out to be that Food Lion was the only chain to do this. Now of course it is way different and to the betterment of the industry. Food Lion produced a video detailing the editing, I’ll have to see but I’m willing to bet my mother still has a copy of it.

    Anyways thanks for your response

  9. Well, here’s why “certain people” may be ready to believe the report. THEY FIRED TWO PEOPLE, if the report was legitimate why were two “community organizers” let go because of it. CHECKMATE.

  10. dbman:

    “Mespo may I ask you what about the Food Lion case you did not like.”

    ********************

    I don’t like private rights protecting employee loyalty taking precedence over the public’s right to know about abuses being committed on it. I would have no issue finding a public policy exception for claims of breach of loyalty against whistle-blowing employees. Here tainted food was being sold to the public which ABC so vividly documented using hidden cameras. The trial sustained the claim against ABC but the 4th Circuit effectively gutted it on technical grounds, but didn’t amply address the public policy/first amendment issues which go to the heart of a free press ferreting out wrongdoing and using surreptitious means to do it. The law should not be used as a shield to protect wrongdoers like Food Lion. That is basic jurisprudence: “Equity will not allow a statute to be used as a cloak for fraud.”

  11. I’m wondering why people are so eager to believe every lie and false charge that anyone can level at the most successful community organizers in this country’s history. From every thing I’ve seen about them over the last twenty years, it seems a clear case of ‘certain people’ getting too ‘uppity’ so the corporate media and conservative thugs start falling all over themselves to demonize them.

  12. The importance of the Food Lion case was the damage done. Food Lion was one of the fastest growing chains in the country and was a threat to all others. Initially started in NC Food Lion had a major backing from the Belgium Govt. Their lion logo was the same from the Belgium Flag. I don’t quite remember the full story in reference to the political side U.S. vs Belgium at that time but it was something to do with terrorist. I would have to research. I do know for a fact that ABC doctored the video’s. It was a disgrace what ABC did. Food Lion stores across the country became ghost towns which led to the dumping of untold tons of perishable items because no one went to the stores anymore. There were tens of thousands of gallons of milk, O.J. cream, thousands of tons of meat that was either poured down the drain or destroyed. I tried to get Food Lion to donate the products to the needy but Food Lion was scared someone else may taint the product and point the finger back to Food Lion and file suit. To this day I refuse to watch ABC.

  13. If ACORN’s leadership has any sense, it will make sure that its employees, including spokespersons, keep their collective mouths shut.

    If Maryland law requires the consent of all parties, there is likely a civil suit available by statute, as there is in Florida. However the pursuit of such an action in this instance would be seen as an attempt to divert attention from what the video disclosed. Litigation would also be extremely expensive with little to gain. Were I advising ACORN, I would probably recommend that it focus on its own internal investigation, and use its limited legal resources for that purpose. It should also make clear to the public that while it opposes the unlawful means used by the filmmakers, it takes seriously the evidence disclosed by the film. In short, it needs to concentrate on the preservation of its remaining integrity rather than expressing false outrage.

  14. I don’t think the video was doctored, which in this day and age would be a simple task to prove. Acorn appears to have a history of some shady voter registration but so do other orgs. My guess is that they will not take them to court but the 2 filmmakers will probably be arrested for something in MD or DC.

    What could it be? Violation of privacy? In Virginia I think the other person has to know they are being recorded. But what about the networks when they do undercover work?

  15. Sue the bastards, but that maybe exactly what they want is to look at all of the records of ACORN. Rick.

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