From A Little ACORN A Not Particularly Mighty Lawsuit Grows

Effluvia

What is ACORN thinking?

If you've turned on the TV or the radio or the internet in the last two weeks, you've seen the huge shit-storm over the release of undercover video by self-described conservative activists who dressed as a pimp and a prostitute, visited various ACORN offices, and got hilarious footage of ACORN employees condoning and encouraging prostitution, sexual enslavement of immigrant children, and various forms of fraud. The death-knell of ACORN's hopes that this could be dismissed as a right-wing frame-up sounded when Jon Stewart came along and kicked them in the nuts.

Now, incredibly, ACORN and two of its employees — specifically, two employees that ACORN fired for the videotaped misconductare suing the undercover mock-pimp-and-ho team of James O'Keefe and Hannah Giles, as well as Breitbart.com III, the media juggernaut devoted to relentless coverage of Andrew Breitbart and whatever annoys him on any particular day. The complaint is here, originally courtesy of Politico.

In the complaint, filed in Baltimore City Circuit Court by Andrew Freedman of Baltimore's Brown Goldstein Levy, ACORN and the two people it has just fired claim that O'Keefe and Giles, by conducting one particular undercover recording in Baltimore, violated Maryland's wiretapping law, Maryland's Courts and Judicial Proceedings Code 10-402(a) and 10-410. Those statutes make it illegal, in broad terms, to record or intercept private conversations without consent. Maryland is a two-party state. The Plaintiffs also claim that Breitbart violated the law by broadcasting the videos on its web sites. ACORN and its former employees demand statutory damages, damages for emotional distress, damages for harm to reputation, and damages for the employees losing their jobs.

I really have to ask how carefully Andrew Freeman has thought this through. Here are but a few quick-and-dirty thoughts about the problems with the lawsuit:

1. Food Lion Precludes Damages For Harm to Reputation: It's highly doubtful that ACORN or its former employees can recover any damages directly or indirectly related to harm to reputation or emotional distress. That argument is probably foreclosed by Food Lion v. ABC, in which the Fourth Circuit overturned significant parts of a judgment against undercover reporters who posed as Food Lion employees and recorded a report on the alleged sale of expired meat. The Fourth Circuit overturned parts of the judgment mostly on state law grounds — it found that Food Lion could not connect the conduct to actual non-reputational damages. Crucially, the court made it clear that Food Lion — which did not sue for defamation, but sought damages for harm to its reputation — could not use state law claims as a ruse to avoid First Amendment restrictions on defamation claims. Specifically, the Court said that the Supreme Court's decision in Hustler v. Falwell prevented Food Lion from making an "end run" against the elevated standard of proof in defamation cases established in such authorities as New York v. Sullivan: "Hustler confirms that when a public figure plaintiff uses a law to seek damages resulting from speech covered by the First Amendment, the plaintiff must satisfy the proof standard of New York Times." The Fourth Circuit also specifically rejected the claim that Food Lion could evade this standard because the videotaping was wrongful under state law.

Now, the two individual ex-employees of ACORN aren't public figures, so they wouldn't have to satisfy the New York Times standard for public figures. Nevertheless, with respect to reputational harm, truth is an absolute defense to claims of defamation by both public and private figures (with possible argued-about exceptions not relevant here). The ACORN employees would have to establish that the videotapes were faked, or what was said about them was untrue. This seems unlikely.

Finally, Food Lion noted that it did not reach the alternative ground upon which the trial court had relied for denying reputational damages to Food Lion — the issue of proximate cause. The trial court in Food Lion found that the proximate cause of Food Lion's torpedoed reputation was its sale of tainted meat, not ABC's revelation thereof. The same argument could well apply to ACORN and its employees — their own conduct, not its revelation, proximately causes people to think they are crooks.

Absent reputational and emotional damages, it is likely that the statutory damages will be trivial, and punitive damages will be limited by current Supreme Court precedent to a low multiple of those trivial damages. That's Andrew Breitbart's monthly cab fare.

2. Whether the Conversations Were Private Within the Meaning of the Maryland Statutes Is Open to Question: With respect to live recording (as opposed to wiretapping phone conversations), the statute only prohibits recording private conversations. That's in the definition section of the statute: "Oral communication" means any conversation or words spoken to or by any person in private conversation.

The statute doesn't define what a "private conversation" is. However, there is some authority on the subject. I haven't yet done a full Westlaw search for Maryland law, but I note that this Maryland Attorney General opinion (at pages 231-232) asserts that Maryland follows the federal definition, under which a "private conversation" is one in which at least one party has a subjectively or objectively reasonable expectation that the conversation would remain private. Circumstances suggesting that other people might overhear — other people within earshot, voices raised loud enough for others to hear, etc. — defeat that expectation of privacy. So — if the recorded conversations took place in circumstances where other people in the ACORN office could overhear them, it is possible that the conversations were not "private" within the meaning of the statute. (ACORN might counter that the only people who could hear were other ACORN employees).

There are other more aggressive cases out there — federal ones, at least — suggesting that a conversation is not "private" if there is no objectively and subjectively reasonable expectation that all parties will keep the contents confidential. I haven't yet seen any indication that Maryland would go that far.

But suffice it to say that the defendants can contest the applicability of the statute.

3. The Plaintiffs Can't Get Damages For Breitbart's Republication: ACORN is shit out of luck on getting damages from Breitbart for broadcasting the videos unless it can show that Breitbart participated in their unlawful recording. To the extent it says otherwise, the Maryland statute is clearly unconstitutional. The relevant case is Bartnicki v. Vopper, in which the Supreme Court found that the First Amendment prevented punishment of republication by third parties of illegally recorded conversations when the recordings were on a matter of public interest. No doubt ACORN will argue that Breitbart orchestrated the whole thing. Good luck proving that.

Based on the law, ACORN, its employees, and Andrew Freedman may wind up feeling fortunate that Maryland does not have a SLAPP statute. [edit: in the comments below, Karl points out that this appears to be incorrect.]

That's all the holes I have managed to poke in a few hours. But the political outlook for ACORN is even worse. Filing a lawsuit against people who revealed such misconduct will not play well in Congress. Rather, it is likely that the suit will whip up anti-ACORN sentiment and doom any chances that ACORN will regain funding. Would you want federal funds to go to an entity that commits misconduct and then sues people who reveal it? Moreover, the suit will allow the defendants — if they don't get out on a motion to dismiss — to use the discovery process to rampage through ACORN's records in an effort to prove that any reputational harm to ACORN was a result of ACORN's actual bad behavior being revealed. Does ACORN really want to roll the dice and count on getting a judge who won't let the defendants delve deeply into their practices and into the bases for their reputation?

I'm scratching my head over this one.

Last 5 posts by Ken White

28 Comments

26 Comments

  1. Scott Jacobs  •  Sep 23, 2009 @8:27 pm

    Hey Ken…

    How about discovery? How entertaining do you suspect that might end up being?

  2. Ken  •  Sep 23, 2009 @8:28 pm

    Somebody didn't read to the end. :)

  3. Scott Jacobs  •  Sep 23, 2009 @8:33 pm

    I was just testing you…

    Also I was proving that I really should sleep more that 4 hours in three days…

  4. Karl  •  Sep 23, 2009 @9:15 pm

    Maryland does have an anti-SLAPP law.

  5. Xmas  •  Sep 24, 2009 @4:38 am

    Hee…Hee…

    You cite Hustler.

  6. Patrick  •  Sep 24, 2009 @5:49 am

    Ken, while I agree entirely with the thrust of your post, I'll point out that Food Lion was decided on a federal court's interpretation of North Carolina law, and that North Carolina's appellate courts, to this day, have never explicitly recognized that a tort for invasion of privacy even exists under state law.

    While it's an influential case, Food Lion is binding precedent only to federal courts in the Fourth Circuit interpreting North Carolina law. Two judges on the state court of appeals could overturn its holding, as it applies to the issue concerned, were they presented with the right case. The First Amendment issues, on the other hand, may indeed foreclose any cause of action for damages.

  7. Jag  •  Sep 24, 2009 @5:56 am

    I'm still trying to figure out why ACORN would also bring suit on behalf of the 2 employees THEY fired? They even make their lost employment part of the claim.

  8. Patrick  •  Sep 24, 2009 @6:01 am

    Because they're idiots Jag. Because their board is composed, in part, of the most radical sort of lawyer who represents only plaintiffs and who is inclined to sue just to "prove a point," whether the case has merit at all.

    Public interest lawyers are on balance a benefit to society, but I'd be cautious about taking a public interest lawyer's advice to sue on anything. They're famous for tilting at windmills, or in other words, for suing defendants they know they can't beat just to punish the defendant for conduct that is legal but of which the lawyers disapprove.

  9. Ken  •  Sep 24, 2009 @6:07 am

    Patrick: of course I understand that Fourth Circuit law is not binding in Maryland, and I pointed out that a large portion of its holding was premised on a reading of state law. But I think that its application of the First Amendment might be broader than you imply. The way I read it, even if North Carolina had a tort for invasion of privacy, Food Lion would not permit a plaintiff to recover reputational damages under that tort unless the plaintiff could satisfy First Amendment standards (such as by showing that the defendant's invasion of privacy involved maliciously false statements.) That's probably consistent with SCOTUS precedent, including such cases as Time, Inc. v. Hill.

    The unstated premise of my citation of Food Lion was that a trial or appellate court in Maryland, faced with the question of whether undercover journalism is protected from suit by the First Amendment, is likely to view Food Lion as persuasive and as the big kid on the block, even though it is not controlling.

  10. Jag  •  Sep 24, 2009 @6:08 am

    I'm unfortunately aware of public interest lawyers and the damage they can do. I used a high profile and respected DC lawyer a few years ago who wanted us to prove a point to the FDA.

    After several hundred thousand dollars and some veiled threats from Justice, we withdrew the suit and stopped using him.

  11. Jdog  •  Sep 24, 2009 @6:43 am

    Question from the peanut gallery: can they unstep in it? Now that combat has been engaged, can they avoid the proctological discovery by withdrawing the suit, or do the suees have some say in that?

  12. Ken  •  Sep 24, 2009 @6:52 am

    Jdog, yes with an if, or no with a but:

    1. I'm not a Maryland lawyer, but in many jurisdictions the defendant has some say in whether the plaintiff may dismiss a suit without prejudice (meaning with leave to re-file later) or with prejudice (meaning precluding the ability to sue again later.)

    2. Under many anti-SLAPP statutes, you can't avoid the motion and the award of attorney fees through dismissing before the hearing. I don't see that provision in the Maryland statute, though it might be judicially imposed. So if the defendants can get an anti-SLAPP motion filed before they can dismiss, they may have a right to have it heard.

  13. rfy  •  Sep 24, 2009 @8:52 am

    Pennsylvania is a 2 party state too, and PA has a very strict electronic surveillance law in the Crimes Code. I think O'Keefe and Giles did some great journalistic work. But I've read they went to ACORN in Philadelphia. If they didn't do some due diligence on the visual and audio taping laws in the states they visited, they've put themselves at risk under both civil and criminal law. At least in PA and maybe elsewhere. I was even a bit hesitant about making this comment, butwiretaping laws aren't much of a secret. Maybe they went forward knowing the risks, maybe not. If they did so knowing the risks, more kudos to them.

  14. timb  •  Sep 24, 2009 @9:44 am

    Personally, I'm much more excited in the discovery into Breitbart's bs "empire" and where these two morons got their money. They violated statute, especially against the two individual plaintiffs, and seeing as how they don't seem much brighter than ACORN employees they tricked, it will fun to find out who put them up to it and who paid their plane fare to travel all over the country.

    Meanwhile, while right wingers like Karl chase down important things like Slapp laws and ACORN, Goldman Sachs continues to distort American democracy and steal billions every year, just so nice people can have that third vacation home. Way to go, guy! It's always the important things.*

    *I always forget the important thing about ACORN is registering minorities to vote and that righties are very interesting is stopping that! So, do continue.

  15. Ken  •  Sep 24, 2009 @9:54 am

    I don't hold any brief for Breitbart, timb, as should be rather evident from my text. I'd be doing the same analysis if some conservative entity sued liberal activists for the same thing. And I think that criticizing speech-suppressing lawsuits is always worth our time, whatever the political merits of the positions of the relative parties.

    I'm pretty sure that policing lawsuits that target speech will not deter anyone from arguing about the political issues involved.

  16. Louise  •  Sep 24, 2009 @10:08 am

    I agree with the excellent points made above, but I do feel somewhat sorry for some of the employees who were taped. After all, I would be willing to bet that some of them knew that what they was wrong, but were following directives by their insane bosses. Yes, they chose to work there, and yes they could have quit or been whistle blowers, but I am betting that each of us have been told by bosses to do things that were in our estimation unethical and complied – at least until we were able to find a new job. And then who gets their name and reputation on youtube? Not the boss….

  17. Louise  •  Sep 24, 2009 @10:15 am

    Ok – I have been following this case in the newspaper, but hadn't taken the time to actually watch the videos. I completely take back everything I said- WHERE DO FIND WITH A COMPLETE AND UTTER ABSENCE OF ETHICS??????????

  18. PaulD  •  Sep 24, 2009 @10:39 am

    Food Lions is a Fourth Circuit case. The holding in question–one cannot circumvent 1st Amendment protection by piggybacking reputational damages on a non-reputational state tort–is based on Federal Constitutional law (i.e. the U.S. Supreme Court case Hustler v. Falwell.) There is complete diversity in the ACORN lawsuit so the defendants can seek to have it removed to the Federal District Court, which sits in the Fourth Circuit. Food Lions is binding on the Federal Distric Court. The defendant just need to remove the case to the Federal Courts.

  19. Brooks  •  Sep 24, 2009 @11:00 am

    It seems to me that if the Defendants bring counterclaims against the Plaintiffs, dismissal of Plaintiffs' suit becomes problematic, although having read the complaint, Defendants ought to move for Rule 11 sanctions against counsel for Plaintiffs (or whatever the Maryland State equivalent rule is).

  20. Jdog  •  Sep 24, 2009 @11:09 am

    timb: I very much enjoyed your Stop Looking At The Thing You're Looking At And Start Looking At The Much More Important Thing I Want You to Look At gambit. May I share my favorite one with you? Right now, there's an asteroid heading for Earth, whose impact wil cause an Extinction Level Event, and we're not doing anything to stop it. Really.

    'Course, there's no particular reason to believe that the collision is imminent, but it's really a much, much more important issue than whatever Goldie Socks or whatever her name is — you know? the babe you're complaining about? — is doing.

  21. Patrick  •  Sep 24, 2009 @11:24 am

    How can Andrew Freeman, the attorney representing ACORN and the two disgraced, fired employees, ethically represent all of them?

    While the case is phrased as one of invasion of privacy, it would be obvious to an idiot that a defense issue getting heavy play in the case (assuming it isn't dismissed for simple failure to state a claim) will be that the employees were fired, and that they (allegedly) violated ACORN policies and the law to get fired. ACORN will have to repudiate them to recover damages, so there's an insoluble conflict that cannot be meaningfully and knowingly waived here.

    That is, unless, the suit was filed simply to harass, in which case SLAPP isn't necessarily the best avenue to sanctions: That's our old friend Rule 11.

  22. Base of the Pillar  •  Sep 24, 2009 @1:48 pm

    Is that the anti-stupid rule? Because it seems to me we need a rule to stamp out the stupid in people.

  23. Papertiger  •  Sep 24, 2009 @5:37 pm

    I'm for a constitutional amendment making the recording of crooks and their crooked behaviors legal in all states and juristictions. A universal kind of thing.
    You know, something with "congress shall make no law …" and probably needs some "prohibiting the free exercise thereof…".

    Stuff like that.

    Oh wait. Did I just think that up?

    That can't be. I'm no where near as smart as a Jimmy Madison.

  24. PaulD  •  Sep 25, 2009 @3:40 pm

    "I note that this Maryland Attorney General opinion (at pages 231-232) asserts that Maryland follows the federal definition, under which a “private conversation” is one in which at least one party has a subjectively or objectively reasonable expectation that the conversation would remain private."

    There were two ACORN employees present. They were both facilitating what they believed was a criminal enterprise, which is itself a crime. It seem to me that each had a fiduciary duty to report the other to ACORN. Given that they were funded by the government, there may even be a statute or regulation that creates a duty to report. I am not sure that either could have a reasonable expectation that the conversation would remain private. If they could be overheard by yet another employee or member of the general public then such an expectation clearly would not exist.
    On the other hand, under fourth amendment jurisprudence I would think that the employees might have a "reasonable expectation of privacy" as that term is used as a term of art in fourth amendment law. I am very rusty of 4th amendment law, but I have doubts that a government agent could use an electronic device to eavesdrop on conversations in the conference room without a warrant. On the other hand if the office is open to the public and a police officer happened to be there on official business and overheard the conversation, then this would fall under the plain view doctrine.
    These are just thoughts. Someone would really need to dig into Maryland case law to come up with a definite answer

  25. Ken  •  Sep 25, 2009 @3:46 pm

    Paul, thanks for your thoughts. I've seen it done differently in different jurisdictions. Sometimes "reasonable expectation of privacy" for recording purposes means "was it reasonable nobody would overhear." Other times it is taken to mean "is it reasonable to assume nobody would reveal the contents of the conversation to a third party." If it's the former in Maryland, ACORN has a harder defense (depending upon whether people were coming in and out); if the latter, then ACORN has a very strong defense to the application of the statute.

    I don't know which Maryland uses. Too tired today to research it.

  26. lcp  •  Sep 25, 2009 @8:56 pm

    I seem to remember some Supreme Court caselaw indicating (maybe in dicta) that a criminal takling on a public telephone can have no legally reasonable expecation of privacy.

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