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. my my my what has he gotten himself into this time.

    Only one of the five television networks that interviewed President Obama for their Sunday shows bothered to ask him about Acorn, the left-wing community organizing group whose federal funding was cut off last week by an overwhelming vote in Congress.

    “Frankly, it’s not something I’ve followed closely,” Mr. Obama claimed, adding he wasn’t even aware the group had been the recipient of significant federal funding. “This is not the biggest issue facing the country. It’s not something I’m paying a lot of attention to,” he said.

    Mr. Obama added that an investigation of Acorn was appropriate after an amateur hidden-camera investigation had found Acorn offices willing to abet prostitution, but he carefully declined to say whether he would approve a federal cutoff of funds to the group.

    Mr. Obama took great pains to act as if he barely knew about Acorn. In fact, his association goes back almost 20 years. In 1991, he took time off from his law firm to run a voter-registration drive for Project Vote, an Acorn partner that was soon fully absorbed under the Acorn umbrella. The drive registered 135,000 voters and was considered a major factor in the upset victory of Democrat Carol Moseley Braun over incumbent Democratic Senator Alan Dixon in the 1992 Democratic Senate primary.

    Mr. Obama’s success made him a hot commodity on the community organizing circuit. He became a top trainer at Acorn’s Chicago conferences. In 1995, he became Acorn’s attorney, participating in a landmark case to force the state of Illinois to implement the federal Motor Voter Law. That law’s loose voter registration requirements would later be exploited by Acorn employees in an effort to flood voter rolls with fake names.

    In 1996, Mr. Obama filled out a questionnaire listing key supporters for his campaign for the Illinois Senate. He put Acorn first (it was not an alphabetical list). In the U.S. Senate, Mr. Obama became the leading critic of Voter ID laws, whose overturn was a top Acorn priority. In 2007, in a speech to Acorn’s leaders prior to their political arm’s endorsement of his presidential campaign, Mr. Obama was effusive: “I’ve been fighting alongside of Acorn on issues you care about my entire career. Even before I was an elected official, when I ran Project Vote in Illinois, Acorn was smack dab in the middle of it, and we appreciate your work.”

    But the Obama campaign didn’t appear eager to discuss the candidate’s ties to Acorn. Its press operation vividly denied Mr. Obama had been an Acorn trainer until the New York Times uncovered records demonstrating that he had been. The Obama campaign also gave Citizens Consulting, Inc., an Acorn subsidiary, $832,000 for get-out-the-vote activities in key primary states. In filings with the Federal Election Commission, the Obama campaign listed the payments as “staging, sound, lighting,” only correcting the filings after the Pittsburgh Tribune-Review revealed their true nature.

    Given his longstanding ties with Acorn, President Obama’s protestations of ignorance or disinterest in the group’s latest scandal seem preposterous. Here’s hoping White House reporters will press the president to clarify just how much he really knows about Acorn and when he knew it.

  2. Yea right

    STEPHANOPOULOS: But have your — have some of your allies made it easier for — handed your opponents some ammunition, like ACORN, for example…

    OBAMA: Well, look, the — you know, I think that — are there folks in the Democratic camp or on the left who haven’t — haven’t always operated in ways that I’d appreciate? Absolutely.

    STEPHANOPOULOS: Congress said they should cut off all funding for ACORN.

    OBAMA: Is — is — is…

    STEPHANOPOULOS: … all funding for ACORN. Are you for that?

    OBAMA: Is that true on the other side, as well? Of course that’s true.

    STEPHANOPOULOS: How about the funding for ACORN?

    OBAMA: You know, it’s — frankly, it’s not really something I’ve followed closely. I DIDN”T EVEN KNOW that ACORN was getting a whole lot of federal money. (Yea right, you gave them $800,000 from your own pocket represented them in court)

    STEPHANOPOULOS: Both the Senate and the House have voted to cut it off.

    OBAMA: You know, what I know is, is that what I saw on that video was certainly inappropriate and deserves to be investigated. (Yea Right, tell that to the DOJ)

    STEPHANOPOULOS: So you’re not committing to — to cut off the federal funding?

    OBAMA: George, this is not the biggest issue facing the country. It’s not something I’m paying a lot of attention to. (Yea right)

  3. More ACORN Videos To Be Revealed
    There are more,” Mike Flynn, Editor-in-chief of new site, said in an exclusive interview this afternoon regarding the number of undercover films exposing ACORN. Flynn would not reveal the location of the ACORN office where the latest video was filmed, but he said, “It’s a slightly different discussion in this one than you’ve seen so far.” The video should break around 9 p.m. EST.

    Flynn said this is not the last one, either. “There are more after that.

  4. Bob,Esq, Byron and et al:

    “You break a law or hurt someone their remedy is with the courts. Doesn’t regulation imply or presuppose bad actions on the part of the regulated?”

    No more than a penal code presupposes guilt in a criminal court system.

    Let’s be real. The legal system and the real world are two separate entities. Trial by public opinion convicts quicker than the legal system.

    The Legal System is inherent with flaws, they are guilty or they would not be charged with anything.

  5. Bob,Esq:

    Isn’t there someway to reform the court system to protect individuals from that type of thing and to protect corporations from frivolous law suits?

  6. Byron: “The remedy for harmful actions taken by business is not through regulation but through our courts. Which is, in my mind, the proper venue.”

    The courts are a proper venue in the eyes of all large corporations since they can crush their opponents by churning out years and years of legal expenses.

    “You break a law or hurt someone their remedy is with the courts. Doesn’t regulation imply or presuppose bad actions on the part of the regulated?”

    No more than a penal code presupposes guilt in a criminal court system.

  7. Slartibartfast:

    courts can impose large penalties on corps and individuals. See the tobacco settlement.

    Although I disagree that government should be the benefactor of corporate fines, it should be the aggrieved party.

    I am speaking generically and do not know enough one way or the other as to Acorns worth. I would think generally that ACORN is no better or worse than any other entity that takes tax payer funds for private disposition.

  8. Byron,

    The problem with the courts is that the rights of corporations to limit their liability have taken precedence over the rights of citizens. If courts had the ability to, say, impose the death penalty on a corporation (liquidate all of the corporate assets or seize some or all of the company’s stock) then I would be much more sympathetic to your position. I think that Mike A is probably correct here – ACORN should shut up and preserve its remaining integrity – which is a shame, since ACORN is an organization that does a lot of good and has really done nothing to deserve FOX News’ continuous, spiteful attacks over the past year.

  9. Bob, Esq:

    if we are members of society surely we must obey the rules as set forth within the constraints of our legal system. The remedy for harmful actions taken by business is not through regulation but through our courts. Which is, in my mind, the proper venue. You break a law or hurt someone their remedy is with the courts. Doesn’t regulation imply or presuppose bad actions on the part of the regulated? We don’t penalize or prosecute someone for thinking about stealing a car.

    Who oversees the regulators? Cannot they be corrupt? Government service does not a saint make. We have seen much evidence of that throughout recorded history.

  10. “May I ask why you think the government is capable of regulating various enterprises?”

    Ever hear of the social compact?

  11. Mespo:

    The USPS is, I believe, subsidized [I don’t think they turn a profit, why should I subsidize your letter?] and ENRON, in my opinion, was not the rule. They were not good corporate citizens and they hurt a good many people. Ken Lay should have lived to go to jail. But ENRON was acting under the existing regulations and they [regulations] did nothing to prevent this. We now have Sarbanes Oxley which appears to really hurt companies.

    I went to the doctor today and asked him what he thought about single payer (government run) health care. I was actually surprised when he said “bring it on, it will be less of a pain than the existing system”. He told me there were only 5 companies providing health insurance, in my mind this is not enough to bring cost down (no competition). But why do we have only 5 national companies providing health insurance? Most likely regulations restricting entry to the market. I believe this is a government supported monopoly in essence.

    I believe regulations hamper existing companies from being competitive and restrict entry to existing markets because companies cannot afford the price of complying with current regulations.
    As an example I point to the Internet, one of the least regulated entities and one that has had phenomenal growth and innovation over the last 10 years. Had it been regulated and taxed would we have had all of the growth? If this is good for the Internet why would it not be good for the economy at large?

  12. Byron:

    “May I ask why you think the government is capable of regulating various enterprises?”


    Utilities Regulation works fairly well when not corrupted by the likes of ENRON. I think the regulation of First Class Mail does relatively well since my envelope from Calif arrived today and cost the sender 44 cents.

  13. mespo72^3:

    “Ah, young Byron, please see, “The Jungle,” by Upton Sinclair to dispel your pollyannaish view that those solely concerned with making money will do anything at all to protect the public.”

    I think they will do nothing to protect the public, but they will protect themselves. At least the ones who are motivated by rational self interest. Not con-men like Bernie Madoff who appeared to be motivated by who knows what, greed maybe or just the shear thrill of walking on the edge.

    May I ask why you think the government is capable of regulating various enterprises? They to have other motivations than the common good and they can be bribed and succumb to all the failures of integrity to which the rest of us are susceptible.

    While in graduate school I once did a research paper on OSHA’s effect on safety in the construction industry, specifically one company in one limited aspect of construction. So I am extrapolating. But what I found was that the single most important factor for reducing lost time accidents was limiting hours worked in a week to 40, over 40 and accidents rose in correlation with the number of additional hours worked. Granted this is a very limited and simple study but the results were statistically significant as there was a very good correlation.

    OSHA could pass all the safety laws they want short of robot workers and you are still going to have accidents in construction. And interestingly enough when insurance companies started giving construction companies rebates on their workers compensation policies for lower lost time accident incidents that is when we began to see safer work sites and fewer lost time injuries and deaths.

    I suppose it is cold to only care about worker safety when there is a return of cash to the company, but it is no less cold to fine a company for safety violations. Depending on the amount it could theoretically put a small company out of business with corresponding loss of jobs.

    I think there are many good reasons to have a dog eat dog competitive society, for one we give too much by way of handouts to large politically connected corporations and farmers.

    Do I think all business men are ethical no, but I believe rational self interest will trump altruistic motivation every time.

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