Contrition Through Aggression: ACORN Sues Filmmakers While Claiming Regret Over Misconduct of its Employees

logoAs we discussed earlier, ACORN has decided to move forward with a lawsuit against the independent filmmakers who showed its employees engaged in potentially unlawful conduct. While insisting that it is terribly sorry for the actions of its employees, ACORN is pursuing the people who forced the misconduct into the open: filmmakers James O’Keefe and Hannah Giles. It is curious method of contrition but ACORN is seeking massive damages for nonconsensual surveillance.

ACORN is itself under criminal investigation in New York and experiencing a cascading impact by agencies and organizations severing ties with the organization. There is also a bill in Congress to prohibit contracts by the government with ACORN, though that bill raises serious constitutional questions.

The lawsuit, filed in Baltimore, also names Breitbart.com, which is run by conservative commentator Andrew Breitbart and posted the videos. Breitbart released five similar videos that O’Keefe and Giles recorded in ACORN offices in Washington, D.C.; Brooklyn, N.Y.; San Bernadino, Calif., and San Diego, as well as the Baltimore office.

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.

In this video, Four ACORN workers appear involved in potential criminal conduct:

ACORN chief organizer Bertha Lewis immediately went on the offensive and threatened 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.”

In bringing the lawsuit, ACORN joins a rather ignoble group of businesses seeking to sue journalists and filmmakers for uncovering improper conduct:

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. However, Maryland does require the consent of all parties, which is a difference with the Illinois case. They are focusing on the nonconsensual surveillance aspect. Maryland’s Courts and Judicial Proceedings Code §§ 10-402(a) and 10-410, requires two party consent to all electronic surveillance. It allows for both criminal prosecution and civil lawsuits.

ACORN attorney Arthur Schwartz insists that the videos were “clear violations of Maryland law that were intended to inflict maximum damage to the reputation of ACORN, the nation’s largest grassroots organizer of low-income and minority Americans.” Well, it didn’t seem to take much to produce this self-inflicted wound. Moreover, ACORN’s tactics have been controversial for years and the organization has been the subject of continual allegations of improper and potential criminal conduct.

For her part, while trying to destroy the filmmakers who disclosed the misconduct, Lewis insists “[w]e were just as shocked and horrified as the American public was. I will not tolerate such behavior. It is incumbent upon me and my board to set things straight.”

The decision of ACORN to aggressively pursue the filmmakers is, in my view, a mistake and evidence of continued poor judgment by the organization’s leadership. These filmmakers may be properly prosecuted under state law and such charges are being contemplated, here. However, ACORN should confine its role to that of a witness and focus on cleaning up its tarnished organization.

For the full story, click here and here.

104 thoughts on “Contrition Through Aggression: ACORN Sues Filmmakers While Claiming Regret Over Misconduct of its Employees

  1. Kiril:

    Good points and quite plausible. Dat “pimp” and “ho” did look a tad bit like a middle class frat boys idea of a Halloween costume.

    I think, if was a juror, that I might believe it.

  2. Kiril – Have you seen the movie “Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan” ? It doen’t take much to film common people of normal intelegence in obsurd situations and interactions. At least Sacha Baron Cohen knows that you must film with an exposed camera and get legal signoff from everyone beforehand before you publicly broadcast or display their stupidity. This was a hit job and no where as good as you see from Corbert on Comedy Central. I’m not a lawyer but I would say Acorn has a case.

  3. QUOTED:

    November 13, 2009
    Acorn Sues Over Funding Vote in House
    By KAREEM FAHIM

    Saying a resolution by the House of Representatives that barred Acorn from receiving federal aid violated the Constitution by singling the antipoverty group out for punishment, lawyers for Acorn filed a lawsuit on Thursday that seeks to restore the financing.

    The lawsuit, filed in United States District Court in Brooklyn, says that the Congressional resolution constitutes a “bill of attainder,” or a legislative determination of guilt without a trial. In the suit, Acorn, which came under fire especially from conservative critics after a series of embarrassing scandals, said it was penalized by Congress “without an investigation” and has been forced to cut programs that counsel struggling homeowners, and to lay off workers.

    For example, it said, because of budget cutbacks, a first time homebuyer class in New York that enrolled 100 people in September enrolled only seven people in October, after the Congressional action.

    “It’s a classic trial by the Legislature,” said Jules Lobel, a lawyer with the Center for Constitutional Rights, which brought the suit. “They have essentially determined the guilt of the organization and any organization affiliated or allied with it.”

    The suit represents the first legal response by Acorn to the Congressional action in September, when the House of Representatives added the financing prohibition to a bill on college lending.

    http://www.nytimes.com/2009/11/13/nyregion/13acorn.html?hp

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