Conservative filmmaker James O’Keefe has reported that he was detained by U.S. Customs and Border Patrol agents Monday when attempting to reenter the country. The reason appears his widely published video showing him crossing the border repeatedly from United States and Mexico while dressed as Osama bin Laden. The video succeeded in capturing what critics have complained about for years: that the border remain wide open and that the Administration is misleading the public on the ease with which potential terrorists could cross into the United States illegally. Whatever the merits of that video, it does seem to me to be either a form of journalism or political speech. It was also very embarrassing for Customs and the Administration. That makes the action troubling if O’Keefe was told, as he states, that he will be detained from now on whenever he tries to reenter the United States.

O’Keefe says that he was told that his video was the reason for his being detained and to have an “X” marked on his passport.

The status of O’Keefe has always been controversial. He is hated by many on the left and often accused misrepresenting scenes through editing as with the NPR controversy . There was also his arrest with regard to the investigation of Sen. Mary Landrieu. (Notably, O’Keefe and three others ultimately pleaded guilty to the misdemeanor charge of entering federal property under false pretenses. It is not clear if this criminal conviction may also have played a role in the Customs actions) O’Keefe seems to have elements of a political operative, a gonzo journalist, and a filmmaker. What exactly is he and should it matter? His site for Project Veritas identifies itself as a journalistic organization.

The fact is that the border video was done as an exercise of free speech and possibly the free press. It would be viewed as highly troubling if the Administration detained a NBC or New York Times reporter who crossed the border as part of coverage on the issue. O’Keefe published the crossing and was clearly not committing the act for any unlawful purpose (though the crossing itself was unlawful as unauthorized entry). If the Administration can impose this type of standing order against O’Keefe, wouldn’t it also be able to impose the same order against any journalist who accompanies illegals or covers a crossing in this fashion? Obviously, no one is suggesting that ICE should not detained those entering the country unlawfully, including journalists. Indeed, O’Keefe’s point appears to be that he should have been apprehended and he claimed that he was trying to show the danger of an open border. However, the fact that they are journalists and not entering for the purpose of evading immigration laws is a mitigating factor and in my view they should not be charged as a matter of prosecutorial discretion. The fact is that journalists routinely meet with criminals, terrorists, and other wrongdoers as part of their work. This often brings them into prohibited areas or potential crime scenes. Prosecutors are expected to recognize and distinguish between journalists and felons in such circumstances. Moreover, since O’Keefe was clearly entering at a legal border entry point, it is not clear why (if as he alleged) he would be detained in the future every time he returns to his own country.

Notably, it was O’Keefe who accused someone else of misrepresentation in a lawsuit linked to the Landrieu controversy — a claim that was just rejected by a federal court. A federal court in New Jersey dismissed a libel suit O’Keefe filed against legal news website MainJustice for an August 2013 story that referred to the 2010 incident as an attempt by O’Keefe “to bug” Landrieu’s offices. After O’Keefe complained, the wording was changed to “were trying to tamper with Landrieu’s phones.” O’Keefe still sued by Judge Claire Cecchi failed to see the actionable case:

Regardless of whether the article used the words “apparently trying to bug” or “trying to tamper,” the few words challenged by the Plaintiff, taken in context, do not alter the fundamental gist of the paragraph… Therefore, the words “trying to tamper with,” understood in the colloquial sense, convey the substantial truth of the Landrieu incident and do not alter the ultimate conclusion of the paragraph—that Plaintiff was guilty of a misdemeanor.

The Court noted that “According to the Factual Basis Document. Plaintiff and his associates eventually admitted to federal investigators that they had entered Senator Landrieu’s office under false pretenses, in order to orchestrate and record conversations with the Senator’s staff.” That made the defamation claim highly questionable from the outset.

The case is O’Keefe v. WDC Media, LLC, 2015 U.S. Dist. LEXIS 41127.

None of that however alters the concern over the detention at the border. I am perfectly willing to accept the criticism of O’Keefe in cases like the ACORN controversy ( in which he was sued and his organization settled out of court for $100,000). Yet, I think that there is a legitimate issue in his treatment by Customs and a basis to determine how other journalists or filmmakers have been treated in the past. When dealing with a critic like O’Keefe, the government should be able to show an objective and consistently applied rule. Perhaps they have one, but there has been little coverage of the incident.

What do you think?