As 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.
I’m not the little one, you are, think more spatially,if you can, and stop calling people “racist” because they don’t agree with you..
Do you always have to play the “race card” card? C’mon, let’s think a little harder, shall we, little one?
Do you always have to play the “race” card. C’mon, lets’ think a little more spatially, shall we.
Okay, I’m not at all sure what Jonathan has against ACORN, or why he believes anything said about them, even though he knows they lie about other things. But I will happily take on the role of unofficial ACORN defender of the Jonathan Turley Blog (*gling*) and point out how deeply in error y’all are.
Really? You don’t think their is any difference at all about employees actually misadjusting a piece of equipment and employees claiming they will facilitate fraudulent paperwork?
Way to maintain a civil discussion, Byron. Suppose you agreed to cheat on that test to get the client’s account, but then didn’t. Now how unethical are you? Will you cause the collapse of civilization? Have you even committed a crime?
But at least the insanity is not unrelenting:
Those outlets you refer to are not “some of the news media”, those would be the actual news media. Those that didn’t report this fact are more appropriately referred to as “the right wing noise machine”.
Also, you have nothing to fear if you’ve done nothing wrong.
I really thought this blog would attract a higher caliber of intellect, I gotta say. But I’ll admit to being of the opinion that to me, intelligence and liberalism are mutually re-enforcing.
In summary:
1) ACORN has a practically air-tight case, given the precedent. Sure, ABC “won the appeal”. But they lost the case. And unlike the partisan hack at issue here, ABC was (at least at the time) actually a legitimate journalism outfit reporting on actual public safety, not paranoid political scare tactics.
2) If you think ACORN is even CAPABLE of any form of “political corruption”, you are racist. Sorry, it is that simple. No other fact could explain how you could be so powerfully ill-informed about the reality of community organization.
3) ACORN, unlike Halliburton/KBR and Blackwater and several other close personal cronies of the Republican Party, has never once ever anywhere received a no-bid contract (nor any direct grant) from the federal government, let alone any no-bid contracts worth BILLIONS (not millions) of dollars.
John
1, September 24, 2009 at 1:21 pm
Mike, you have had enough Kool-Aid.
—-
John, there was a time in my city, St. Louis, when the only group working to improve the plight of the disenfranchised (by race and class) was Acorn. They were demonized then also. I’ll hold off on judgment until I see the unedited tapes. Even then I might cut them some slack. It’s not as if they’re electrocuting our troops and having their contract for electrical work extended after all. Admittedly you might be able to deconstruct the particular fallicy of my argument but I’ll still contribute to them now and then.
Actually John, I like sugar free kool-aid and drink it every day instead of orange juice. Gives me a clean citrus flavor and no calories.
My defense to this claim would be the simple proverb that “You can’t cheat an honest man.” Mike S. is correct that you cannot have employees march in lockstep and make good judgments all the time. Had ACORN merely acknowledged this truism, and apologized the matter may have died. Now they have invited new scrutiny and reprobation by trying to correct a wrong with a wrong. They would do well to remember that, in a democracy, the ultimate Court doesn’t sit in the nation’s capitol but in the living rooms of the “justices” taking this all in, and armed only with their senses–both common and of right and wrong.
Where did the other 2% go?
Below is a link to an interview of Bertha Lewis, CEO of ACORN, by “Democracy Now” after the videos were released.
Video on top, text below.
http://www.democracynow.org/2009/9/17/acorn_head_bertha_lewis_vows_action
Mike, you have had enough Kool-Aid.
I believe the “statute of limitaions” on written contracts in California is four years, two years on verbal contracts.
When I retired from NYC Govt. I had more than 300 working for me in 12 different offices. It was impossible to have everyone on the same page no matter how well the communication. I would only find out when workers crossed the line in retrospect and I had to sometimes fire them. ACORN faces the same issues.
When it comes to ACORN though, the issue is really they have become the bogeyman on purpose. Why, because they are conceived in people’s minds as a Black organization and so represent a target for Right Wingers to make points. Truth is they are barely a force enough to cause concern if the purported stuff they are accused of were true. 98% of what’s said about them is simply not true.
Dredd:
if they skewed the tapes then skewer them.
Humm, Lawsuit, discovery, NAACP, names, humm. Sounds crazy that they would sue. Oh well.
Some of the news media pointed out that the videos were fraudulently edited to portray a false scenario.
The also pointed out that the fake ho and the fake pimp were thrown out of some ACORN offices, and that the complete dialogue on the most notorious ACORN office encounter was skewed by editing out certain exculpatory sequences.
This type of lawsuit worked for John Boehner when a couple listened in on his cell phone call to Newt Gingrich some years ago.
The call was scandalous but Boehner prevailed and recovered damages anyway.
Alan:
I am an engineer and I just had a client ask me to cheat on a test, I told him no but that he was certainly free to find another engineer that may be so inclined. I do not think ethical behaviour is limited to when someone is watching or if there is a possibility of getting punished.
May I assume from your comment that you are for child prostitution, illegal immigration, pimps (which is nothing but abuse of women) and tax evasion?
They were not enticed, they offered it up freely, they were unethical and ACORN should have fired them. Their behaviour has tainted the entire organization although I believe that this couple did this in more than one location and the outcome was similar to what it was in Baltimore.
I am making an assumption now based on my political persuasion, but my feeling is that had the video not been shown publicly those 2 would still be employed. ACORN has shown very questionable ethical behaviour across a number of issues. Had a conservative group done these things I don’t doubt for a minuet that individuals would be on their way to jail and rightly so.
This was a newsworthy matter of public interest and significance that did not disclose private information about the ACORN employees themselves.
What’s the problem?
I’m not a fan of two party consent laws, but this case is an exception. The documentary film markers essentially entrapped the ACORN employees by inducing them into acts they would otherwise not have committed, and ACORN was deprived of the opportunity to supervise its employees that it no doubt would have exercised if it knew the interaction was being recorded. I think this gives rise to liability and ACORN is correct to pursue a civil remedy. If they did not, this sort of entrapment-based gotcha journalism would become commonplace, and show up every where in the form of “reality TV” like shows without the consent of the persons involved.
These quasi-SLAPP suits garner little sympathy from Judges or juries. Have at it!
“Ok . . . so in summation, the final plan of the ACORN Board of Directors is to freak completely out?”
Pssst.
ACORN.
Sometime it isn’t what you do or say, it’s when you do or say it. You didn’t have a pending statute of limitations issue. Filing against the filmmakers could have been put off a bit. You should have let one hullabaloo calm down a bit before starting another. Let your page one story die back and then drop your page three story later because you only add fuel to a still burning fire by filing now. Hire a new media consultant because you’ve been given poor advice.