Comments on: From A Little ACORN A Not Particularly Mighty Lawsuit Grows

By: Analysis of ACORN Lawsuits as Potential SLAPP | Public Participation Project

Fri, 03 Jun 2011 20:23:26 +0000

[...] a couple interesting blog posts about the potential of ACORN's lawsuit as a SLAPP. His first post discusses the lawsuit, and includes a link to the complaint, while the second examines the Maryland [...]

By: September 28 roundup

September 28 roundup — Mon, 28 Sep 2009 04:14:32 +0000

[...] lawsuit against videomakers analyzed [Above the Law, Ken at Popehat and [...]

By: lcp

lcp — Sat, 26 Sep 2009 03:56:24 +0000

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.

By: Ken

Ken — Fri, 25 Sep 2009 22:46:15 +0000

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.

By: PaulD

PaulD — Fri, 25 Sep 2009 22:40:50 +0000

"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

By: Papertiger

Papertiger — Fri, 25 Sep 2009 00:37:08 +0000

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.

By: Base of the Pillar

Base of the Pillar — Thu, 24 Sep 2009 20:48:42 +0000

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

By: Patrick

Patrick — Thu, 24 Sep 2009 18:24:02 +0000

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.

By: Jdog

Jdog — Thu, 24 Sep 2009 18:09:58 +0000

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.

By: Brooks

Brooks — Thu, 24 Sep 2009 18:00:16 +0000

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).

By: PaulD

PaulD — Thu, 24 Sep 2009 17:39:11 +0000

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.

By: Louise

Louise — Thu, 24 Sep 2009 17:15:26 +0000

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??????????

By: Louise

Louise — Thu, 24 Sep 2009 17:08:53 +0000

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….

By: Ken

Ken — Thu, 24 Sep 2009 16:54:17 +0000

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.

By: timb

timb — Thu, 24 Sep 2009 16:44:16 +0000

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.