CIR represented filmmaker and journalist James O’Keefe, who was sued in three different states for recording conversations with ACORN officials. O’Keefe worked to fill in a major gap in journalistic coverage as he exposed unsavory practices that were being largely ignored by traditional media outlets. The suits against him were brought under state laws that make it illegal to record a conversation without the consent of the other party. CIR successfully defended O’Keefe in each of the suits and argued that the laws violated his First Amendment rights.
Speech on a Matter of Public Concern
ACORN was at the center of several controversies throughout the 2008 election season (See McCain ad). ACORN workers were convicted of voter registration fraud in four states, and investigations were conducted by five additional states and the FBI.
Despite being the center of such widespread controversy and the source of multiple instances of voter registration fraud, ACORN received over $50 million in funding from the federal government and millions more from various state governments. Even in light of the ongoing controversy, the federal government showed little interest in reviewing ACORN’s suitability for federal funds.
Against the backdrop of this government inaction, James O’Keefe decided to do his own investigating in order to shed light on exactly what kinds of organizations were receiving taxpayer dollars.
O’Keefe and his partner, Hannah Giles, visited seven ACORN offices around the country and secretly recorded their conversations with ACORN officials. In the videos, O’Keefe and Giles appeared to seek advice on how to get away with tax and loan fraud, how to covertly operate prostitution rings, and even how to smuggle underage girls from Mexico across the border for use as prostitutes. In many of the videos, the ACORN counselors proved more than willing to share advice on how to circumvent the law.
When the videos were released to the public in 2009, they caused widespread uproar over the fact that such an organization received federal funding. The public outcry was so furious that Congress voted with overwhelming bipartisan support to defund ACORN; both the Census Bureau and the IRS cancelled their contracts with ACORN; and a majority of states and corporate donors ceased all contributions to ACORN.
By the spring of the following year, ACORN announced it was filing for bankruptcy. By all accounts it would appear that our free and open system of government was working. In the face of government complacency, a citizen speaking out on his own forced our nation’s leaders to listen and to act. Several ACORN affiliates, however, brought lawsuits against O’Keefe in an attempt to use state law to punish him for his political speech.
Lawsuits against O’Keefe
O’Keefe faced lawsuits in Pennsylvania, Maryland and California. Most of the claims against him concerned state laws that made it a crime to record a conversation without the other party’s consent. Such laws raise serious First Amendment issues. For example, such laws can be used to punish those who record police encounters. The ability to record government activity on a cell phone and share it instantly over the internet has become an important way for ordinary citizens to hold government officials responsible. Anti-recording laws radically diminish citizens’ abilities to use these means of communication to report on government activity.
CIR agreed to defend O’Keefe in all the cases brought against him. We filed briefs arguing that laws criminalizing such recordings violate the First Amendment because they discourage ordinary citizens from using the tools at their disposal to speak out on issues of public concern.
Over the course of litigation, O’Keefe continued to practice his undercover reporting. On January 26, 2010, he was arrested in New Orleans while investigating then-Senator Mary Landrieu. O’Keefe had tried to get video documentation that Mary Landrieu’s office had refused to answer questions about her vote for Obamacare. CIR represented O’Keefe in this matter in which he faced the possibility of massive fines and several years in prison. Though much noise was made about this stunt in the media, O’Keefe ultimately agreed to plead down to a misdemeanor for misrepresenting who he was.
The suits brought against O’Keefe tried to bully an ordinary citizen who spoke out against government wrongdoing. Citizens who wish to speak out on public issues frequently use the internet and other modern technology to raise awareness. Often they are bullied into silence with the threat of lawsuits they cannot afford.
On March 5, 2013, O’Keefe reached a settlement in the last of several lawsuits filed against him in the wake of his exposé of ACORN. ACORN employee, Juan Carlos Vera brought a lawsuit against O’Keefe for secretly recording a conversation between the two of them as a part of O’Keefe’s independent journalistic investigation of the organization. As a result of the settlement, O’Keefe paid Vera $100,000 and was released from all liability stemming from the recording and its dissemination.
CIR believes citizen speech on matters of public concern is absolutely protected by the First Amendment. CIR succeeded in defending O’Keefe. One case was dismissed, two were settled on favorable terms, and one was settled by reaching a plea agreement.
Updates on this case
Trial judge denies anti-recording law motion
Today U.S. District Judge M. James Lorenz denied both James O'Keefe's and Hannah Giles's motions to dismiss former…
Hearing in anti-recording law motion
Today a federal judge of the United States District Court for the Southern District of California heard oral…
James O'Keefe challenges California anti-tape recording law
Representing filmmaker James O’Keefe, CIR today filed a motion in federal court to strike down a California anti-tape recording…