May 23, 2011

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 ACORN employee Juan Carlos Vera’s suit against them at the pleadings stage.  The lawsuit by Vera, who is featured in a video by O’Keefe filmed in San Diego’s ACORN office, is based solely on the alleged violation of a California statute banning the recording of a person’s “confidential communications” without consent.

O’Keefe had moved to dismiss the case on the ground that the California statute bans citizens from exercising their First Amendment right to record public officals performing their duties in public settings, such as roadside traffic stops.  In his opinion, Judge Lorenz did not rule that such recording is not a First Amendment-protected right.  Rather, he seemed to suggest that such recording by citizens actually is seldom or never banned under California’s anti-recording law.  By making this motion, O’Keefe has preserved the issue of the statute’s unconstitutional overbreadth for appeal.

CIR’s defense of O’Keefe in this lawsuit now enters the discovery phase.

  • Read the district court’s order
  • Read Volokh Conspiracy post on the order

CIR battles efforts to stifle citizen journalists.   

CIR is committed to protected freedom of speech rights against the recent efforts to silence journalists who use blogs, YouTube videos, and other new media to publish stories that are not usually covered by the mainstream media.  These individuals often lack the resources to mount legal defenses to the frivolous lawsuits directed their way, making them especially vulnerable to the use of litigation as a weapon of silence.

CIR is defending James O’Keefe, the independent filmmaker who is raising constitutional challenges to a California statute, which outlaws the videotaping of individuals without their consent.  For example, the statute prohibits a citizen from using his cell phone to record a police arrest on a public sidewalk.  CIR believes such statutes are unconstitutional because they attempt to stifle free speech, and we hope a win in this case will set a precedent with national significance.

Taking down ACORN 

In 2009, O’Keefe and Hannah Giles, posing as a pimp and a prostitute, secretly filmed employees of the “anti-poverty” group ACORN as they gave advice about how to avoid federal tax laws, hid income, and fool banks into issuing a mortgage to run a brothel.

As a result of their reporting, ACORN lost most of its funding and disbanded in a matter of weeks.  O’Keefe and Giles, on the other hand, became defendants in lawsuits in Pennsylvania, Maryland, and California as well as grand jury investigations in several states.  The cases alleged that O’Keefe and Giles had violated broad state laws that make it a crime to record one’s conversations without the consent of the other party.

Our strategy is simple.  We will counter each lawsuit with a defense firmly grounded in the First Amendment.  CIR’s mission is to protect individuals from the unconstitutional use of government authority to suppress citizens’ freedom.

Case Status: Successfully closed. The Maryland case was dismissed, the Pennsylvania case was settled, O'Keefe entered into a plea agreement in the New Orleans case, and the California case was settled.

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