Rightwing activists and propagandists James O’Keefe and Hannah Giles, employees of con-artist and propagandist Andrew Breitbart, may not use the First Amendment as an excuse for breaking the law in California, according to a federal judge’s ruling this week.
Judge M. James Lorenz rejected the defendants’ argument and motion for summary judgment in federal court, as part of the civil lawsuit filed against them by former San Diego ACORN worker Juan Carlos Vera.
Giles had previously thrown O’Keefe under a bus by arguing that she should not be held accountable at all for violating California’s Invasion of Privacy Act [CA Penal Code § 632], since he, not she, was actually wearing the hidden video camera used to secretly tape their conversations with Vera, even after they had asked if their meeting would be kept confidential.
For his part, O’Keefe, a convicted federal criminal, argued that he was allowed to violate the law because the U.S. Constitution’s First Amendment protected him as a “journalist”. The judge ruled against the defendants on all points…
According to Maria Dinzeo of Courthouse News Service:
…
[Lorenz ruled] that the law “is directed to the surreptitious recording of confidential communications and not the manner or method of recording the conversation.” Given the meaning of the word “record,” Lorenz found Giles equally responsible.
Lorenz also rejected O’Keefe’s motion for judgment on the pleadings, in which he argued that First Amendment protections for journalists supersede the California Privacy Act. Since there was a mutual understanding that the conversation was confidential, Lorenz found that the privacy law “is not an overbroad intrusion on exposé newsgathering in which O’Keefe participates.”
“Exposé newsgathering” is not what O’Keefe traffics in, as demonstrated again most recently by, ironically enough, the “news” website of Fox “News” host Glenn Beck after a similarly deceptive and secretly video taped smear of an NPR employee by O’Keefe last March.
But O’Keefe’s long track record of deceptive video hit-jobs was not at issue in this particular legal argument.
In his ruling [PDF], Judge Lorenz highlighted specific portions of the CA law which is violated by “Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication.”
The ruling goes on to further cite the statute which reads “The term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.”
“California’s law is quite clear,” Lorenz wrote in response to the First Amendment arguments by O’Keefe and Giles, “that persons who engage in news gathering are not permitted to violate criminal laws in the process.”
O’Keefe and Giles were sued by Vera last summer, after an investigation by California’s Attorney General found that the pair had likely violated the CA Privacy Act by secretly taping workers at ACORN. The duo were spared criminal charges for violation of the same law after bargaining for immunity in exchange for finally providing law enforcement with the unedited videos of their secretly taped meetings with ACORN employees.
After examining the unedited video tapes, the CA AG echoed all other independent investigations of the tapes published by Breitbart, to determine that they had been “severely edited” to present a false portrait of ACORN and of the meetings with workers there.
The AG found the CA ACORN workers “committed no violation of criminal law.” Previously, a New York District Attorney investigation also found “no criminality” in the “highly edited” video tapes of ACORN workers there.
Similarly findings were also offered by a former Massachusetts attorney general and an investigation by the Congressional Research Service.
Vera, however, and other ACORN employees across the country, were fired by the organization shortly after Brietbart’s publication of the falsely edited video tapes on his Rightwing political websites.
No employees of ACORN have been charged with any crimes in relation to the O’Keefe/Giles/Breitbart hit-jobs carried out during the summer of 2009 in which Breitbart and O’Keefe had purported to the media that he had played a pimp during meetings with ACORN to Giles, who was dressed as a prostitute during those encounters. In fact, ACORN workers had been told that O’Keefe, playing her conservatively dressed boyfriend, was hoping to rescue Giles from an abusive pimp who had been threatening her life and stealing her money. (One of the videos was deceptively edited to make it appear that ACORN workers had told Giles to bury her money in the backyard, so the government couldn’t get at it for tax purposes. In fact, as the actual transcripts revealed, the worker was advising her on how to keep the abusive pimp from stealing it from her. Giles blatantly lied about that point on Fox “News.”)
Their hoax was successful, however, resulting in the loss of federal funding for ACORN which led to a loss of private donations, eventually forcing the four-decade old community organization to close its doors.
ACORN had long been targeted by Rightwingers due largely to their years-long success in legally registering millions of legal low- and middle-income citizens to vote. Most such voters tend to vote for Democrats.
Despite persistent, yet evidence-free, claims by the Right over many years that ACORN participated in “voter fraud,” there is no known evidence of even a single fraudulent vote ever having been cast in any election due to an improper registration by any ACORN worker.
The BRAD BLOG spent a fair portion of 2010 demonstrating to the New York Times and other media outlets that they had repeatedly misreported the story of the hoax carried out by O’Keefe, Giles and Breitbart. In fact, O’Keefe neither dressed as a “pimp,, nor represented himself as one in the secretly-taped meetings with ACORN workers, even as he famously lied to the public and media about having done so.
Following our numerous exposés, the NYTimes was eventually forced to issue corrections for some of their reporting after their Public Editor admitted both he and the paper had been “wrong” about O’Keefe’s version of the story which they had reported uncritically.
In addition to the civil lawsuit O’Keefe and Giles are facing in San Diego, O’Keefe’s high-powered Republican attorneys were able to obtain a plea deal for him in another case, in which felony counts were lowered to misdemeanor charges in exchange for his guilty plea.
That case involved a scam similar to the one carried out against ACORN. O’Keefe and his fellow conspirators were caught secretly taping federal employees at the New Orleans office of Sen. Mary Landrieu (D-LA) after entering the property under false pretenses and attempting to access her phone system.
For his part, admitted liar Breitbart is busy defending himself against a law suit brought by former USDA official Shirley Sherrod. She was fired after Breitbart published yet another deceptively edited video, purporting to serve as evidence that the African-American Sherrod was discriminating against white farmers in her role as a federal worker.
The unedited version of the tape demonstrated that Sherrod had been doing the complete opposite of what Breitbart attempted to illustrate her as doing.
Though an apology was quickly issued to Sherrod by the White House, they have never apologized for having defunded ACORN under the fraudulent pretenses knowingly presented to the public by O’Keefe, Giles and Breitbart.
Excellent piece, Brad. But permit me to add a number of points.
First, Judge Lorenz’s decision is well thought out; supported by longstanding law that requires a balancing between legitimate first amendment news gathering and an individual’s right to privacy.
Judge Lorenz appropriately quotes the CA Supreme Court decision in Shulman v. Group W Productions, Inc (1998):
Second, the ruling was based solely on the content of the pleadings and not extraneous matter that shows that what O’Keefe, Giles and their pathological liar/propagandist employer Andrew Breitbart are engaged in can no way be described as “journalism.”
That point was underscored by you in James O’Keefe’s Latest Victim: A Hero NJ Teacher, in which you describe how these con artists targeted a NJ special education teacher, Alissa Plosnick, who, in 1997 ‘was lauded by President Clinton after risking her life to save those of a dozen school kids in Passaic where “She threw herself in front of a careening van to protect her students and landed in the hospital with broken ribs, a fractured wrist, a badly bruised pelvis and glass cuts in her eyes.'”
In that piece, you quoted Bob Braun of the Star Ledger:
Third, Judge Lorenz’s discussion of a conspiracy between Giles and O’Keefe to violate CA Penal Code § 632 raises the question as to whether Breitbart should have also been named as a party-defendant in the Vera case.
Fourth, this action is unfortunately limited to civil liability. Section 632 is a criminal statute but Giles and O’Keefe evaded criminal prosecution when then AG and now Gov. Jerry Brown granted them immunity in exchange for the unedited videotapes which exposed their fraud. That was both unnecessary and unfortunate because Brown could have subpoenaed the tapes as part of a Grand Jury investigation.
Fifth, whatever civil damages are ultimately awarded to Vera, they will not begin to compensate the American people for the damage these scam artists did to our democracy by destroying ACORN, whose only “crime” was to lawfully register voters, most of whom would not likely vote for the GOP.
Sixth, there is the little matter of Dep. LA County DA Patrick Frey, who, despite his sworn duty to uphold the laws of the state of California, went out of his way to publicly defend O’Keefe’s despicable ACORN scam even after we directly and repeatedly confronted Frey with the CA PC 632 issue.
I left a comment on BradBlog…protect me, I’m a journalist!
Excellent job Brad and thank you and also Earnest for this in depth update!!! You guys rock! Maybe a similar new organization can spring up and use the evidence of the demise of Acorn to gain notoriety and Federal funding. That is unless those funds were already squandered on something like the unmanned drone bombing in Yemen or some other mass killing in the name of protecting the US way of life.
Is this O’Keefe in this video as well ?
http://www.youtube.com/watch?feature=player_embedded&v=S4hrnbhIHDY#at=57
The guy in the fawn coat at 1.14
We should not forget the vulnerability of the democrats who stampeded like fear-crazed rats as the neoCons destroyed ACORN.
They paid dearly in the following election.
Brad,
When you say–In fact, ACORN workers had been told that Giles, playing his conservatively dressed boyfriend, was hoping to rescue Giles from an abusive pimp.–
you probably mean O’KEEFE playing HER boyfriend, not Giles as his boyfriend.
Detail Hound Lasagna
David Lasagna –
Thanks, Detail Hounder! Have corrected. Also, the correction allowed me to include a link to one of my favorite and most grotesque distortions from the entire edited set of phony hoax tapes, the claim that ACORN workers advised Giles to hide her money from the government, by burying it in a tin can in the backyard. It was one of the most highlighted points on Fox “News” coverage of this. In fact, as the transcripts revealed, the worker was advising Giles on how to hide the money from the abusive pimp who was said to be trying to killer her, but Giles represented it completely differently to the news media
You can see the entire scam on that point documented here.
everyone decent should read william blum’s ” KILLING HOPE- u.s. military and cia since wwII” !!
noam chomsky said, “far and away the best book on the topic”
breitbart and his teen gang should be arrested.
like karl rove who put a ton of people in jail or in ruin with his seriously lowdown scummy political subversions.
just my opinion, kids.
i am no one. please don’t target me.
(they don’t care. they hate everyone.)
thank you , brad, for the excellent election stuff and sibel pages. lots of interesting comments, too, and conversation. (haven’t read too many articles here yet though)
but i wrote a longer note about william blum’s UNBELIEVABLE BOOK at the article about kloppenberg newspaper editorial.
maybe you all know this book. if so, jeesuz, huh?
if not, you ought to read it.
lots of details about how democracy gets taken down. killing hope, killing change for 6o+ years. they do elections. they do it all.
breitbart /rove etc shameless cia tools?
Since the entire basis on which ACORN was defunded has been exposed as a malicious hoax, isn’t it time to get ACORN reinstated?
Some of these crazoids will move from the first to the second amendment as a solution for their psychosis.
Put on the flack jackets, they are going to vote with their guns again.
That is the way it is in evolution from left to right anymore.
maintaining the right wing facade is important to some, but it is still a facade
… Raven asked…
Not a chance, because Obama presided over that fiasco, just as he presided over the shaftings of Sherrod, Jones, Johnson, Liu and anyone remotely considered a liberal that he felt had to be associated with his administration long enough to quiet the base.
When you understand that shafting the base is a feature of the Obama administration and not a bug you will understand why Breitbart is given free rein by Obama.
I heard an interview recently that seemed to indicate that Acorn has reorginized, new protective rules and new name but still doing the same importnt community work as before. We need to hear how to support them. At the moment they are flying below cover.
Thank you for your comment, Boctaoe.
According to a 2/23/10 the Huffington Post article:
I’m not sure just how successful that effort has been, but I do know that HuffPo missed the truth by a country mile when it stated, in the same article [emphasis added]:
As we reported in The Real Targets of the ACORN Smear Campaigns: Verifiable Truth, American Democracy, these two scam artists, who by no means could be described as “young conservatives” never entered any ACORN office “disguised as a pimp and a prostitute.”
Where HuffPo suggests that the convicted federal criminal O’Keefe and his accomplice obtained tax and housing loan advice “for the business of solicitation,” we reported in that same article:
In the process of carrying out their Baltimore ACORN scam, O’Keefe and Giles probably violated an MD wiretap law that is similar to CA Penal Code §632.
As Brad later reported, O’Keefe appears to have violated the MD wiretap law on a second occasion:
Soldiers die while politicians and their operatives lie. Lives are robbed and elections are stolen while a catatonic news media says nothing of value. Happy Memorial Day in America. We can remember what was.