Class: Media, Corporate Responsibility and the Law
Date: May 9, 2011
Since his first well-publicized undercover sting in the fall of 2009, James O’Keefe has been a controversial figure in politics and the media. A self-proclaimed investigative journalist and filmmaker, O’Keefe heads the non-profit Project Veritas. The organization’s goal is to train video muckrakers nationwide to follow in O’Keefe’s footsteps. O’Keefe’s best known stings, against the community organization ACORN and, most recently, against National Public Radio, have been incredibly successful. Both led to very bad press for the organizations, Congressional action and, in the case of ACORN, the dissolution of the entire organization. While O’Keefe’s methods have been incredibly successful, they may not have been entirely legal. The videos released and the subsequent investigations have raised the possibility of legal ramifications for O’Keefe’s actions. A thorough investigation of the videos shows that many of those featured were merely collateral damage in a war against ACORN and NPR. The courts have set the bar high in defamation and invasion of privacy cases, but some of those featured in may have a cause of action against O’Keefe.
In September 2009, Hannah Giles phoned O’Keefe with a plan to take on ACORN. Giles’ plan was simple. She and O’Keefe would enter ACORN offices dressed as a prostitute and pimp and attempt to get advice buying a house to use as a brothel (Fears and Leonnig). Over the course of several days, O’Keefe and Giles visited eight ACORN and ACORN housing offices across the country and met with employees while wearing hidden cameras and recording devices. In each encounter, Giles explained that she was a prostitute escaping an abusive pimp. As the pair visited more offices, the story became more elaborate. O’Keefe was a student, getting his degree in political science. He hoped to run for office and use the money earned by Giles and the underage El Salvadorian girls they hoped to sneak over the border to fund his political campaign (Brown 8-9). Their aim was to ensnare ACORN employees, to catch them on camera giving advice on how to hide their illegal activities.
The Association of Community Organizers for Reform Now had been a controversial organization in the 2008 presidential election, registering voters in low- and middle-income communities. Members of those communities generally vote for Democratic candidates. Throughout the campaign, ACORN had been accused of voter registration fraud and even causing the housing crisis. The accusation of voter registration fraud, sometimes mislabeled as voter fraud, was misunderstood and overblown in the press, leading to a much greater controversy and more mudslinging. During the campaign, ACORN hired people to take to the streets and register voters. Some of these employees were lazy, filling out the registrations for cartoon characters or celebrities. That is voter registration fraud, filling out a form with a false name. But there is almost no impact on the actual election from voter registration fraud, as Mickey Mouse and Donald Duck do not actually show up to vote (Hastings). The accusations stuck however and O’Keefe and Giles cited the voter registration drives as one of their reasons for targeting the organization (Fears and Leonnig). The accusations slung against the organization are very different from the work ACORN was actually doing. ACORN and ACORN housing offered a range of services. Primarily, the organization’s offices were located in low- and middle-income communities, offering assistance and seminars on tax preparations, clinics on housing issues, from filling out mortgage applications to staving off foreclosure, and benefits counseling (Harshbarger and Crafts 35-37).
The first office visited by O’Keefe and Giles was in Baltimore, Maryland. Giles entered the offices as she appears in the videos, wearing a very short skirt and a skimpy top. O’Keefe, though wearing an outrageous outfit in the introduction of the videos, wore a button-down shirt and slacks into the offices. The videos posted from the ACORN visit in Baltimore show the organization in a very negative light. In the introduction to the video, O’Keefe’s voiceover asks a number of questions, such as whether ACORN employees would encourage a prostitute to cheat on her taxes. The video shows the ACORN employee, Tonja Thompson, explaining that Giles could get a child tax credit for the underage girls. The video goes on to show Thompson searching for a legal code for prostitution (Veritas Visuals “ACORN Baltimore Prostitution Investigation Part I”).
An investigation into the videos presented a very different story. Following the release of the videos, ACORN hired former Massachusetts Attorney General Scott Harshbarger to look into the organization and make recommendations for reform on both a national and local level. The Baltimore sting comes across very differently from the perspective of ACORN employees and their supervisors. According to Thompson, Giles and O’Keefe came to ACORN looking for help, as they’d been turned down elsewhere. Giles represented herself as an exotic dancer, while O’Keefe used the term ‘prostitute.’ Thompson maintains that she was relying solely on the statements made by Giles. In that light, the legal code she is shown looking for in the videos is for exotic dancing, not prostitution. Also not shown in the video is the concern ACORN employees show for Giles safety. No one in the Baltimore office actually filed any tax returns on Giles’ behalf (42-43). Both employees shown in the video lost their jobs.
Giles and O’Keefe also visited ACORN offices in California. During one visit, the pair spoke with Tresa Kaelke, a receptionist in the San Bernadino office. In the video, Kaelke talks about her past experiences with prostitution. She also claims to have murdered her husbands. The videos present a very damning picture (Veritas Visuals “ACORN San Bernadino Child Prostitution Investigation Part I”). But again, an investigation after the fact reveals a very different picture. Then-California Attorney General Jerry Brown was asked by the governor to investigate ACORN’s activities in the state. In a conversation with police investigators, Kaelke said she realized that the whole thing was a set-up and decided to play along, making outrageous statements that were not true. An investigation by the police found that both of Kaelke’s ex-husbands were still alive and found no evidence that she had ever engaged in prostitution (11-13). Like the Baltimore employees, Kaelke lost her job.
At the San Diego ACORN offices, Giles and O’Keefe met with Juan Carlos Vera, a lawyer who specialized in immigration. In the video released, O’Keefe explains that Vera was particularly interesting to them, as they hoped to smuggle underage girls from El Salvador into the country. O’Keefe is seen soliciting advice from Vera about how to get the girls across the border (Veritas Visuals “ACORN San Diego Child Prostitution Smuggling Part I”). Brown’s investigation revealed that Vera asked a lot of probing questions of Giles and O’Keefe, even getting contact information from both. After the pair left his office, Vera called his cousin, a detective with the National City police department, saying that an admitted prostitute had just come to his office asking for advice on human trafficking (13-15). Following the release of the video he was featured in, Vera was fired by ACORN.
The effect of the ACORN videos is well known. Following the release of the videos on the conservative website, BigGovernment.com, ACORN received wall-to-wall coverage in the media. O’Keefe and Giles appeared on a number of talk shows, at times in the costumes they supposedly wore in the videos. Congress stepped in, voting in both chambers to end any federal funding for the organization, a move that was later ruled unconstitutional (Fears and Leonnig). ACORN has folded nationally and some local branches have rebranded themselves under different names. The organization’s website, acorn.org, is no longer active. It is, however, important to note that ACORN was plagued by problems prior to the sting. The brother of the organization’s founder, Dale Rathke, had embezzled close to $1 million from the organization. The embezzlement was covered up and only became public many years later (Brown 4). In addition, ACORN employees at various levels of the organization were poorly trained (Brown 24). The videos released by O’Keefe were merely the final nail in ACORN’s coffin.
After the videos were released, several investigations occurred around the country to determine whether any of the ACORN employees had committed any crimes. Most reports agreed that while the conduct was inappropriate, none was illegal. California’s investigation found no evidence of any violation of criminal laws (Brown 2). The Brooklyn district attorney spent four months investigating the organization and also found no criminal conduct (Madden). The internal investigation requested by ACORN itself came to the same conclusion.
There are several legal issues brought up by O’Keefe and Giles’ methods in obtaining the videos and in the way the videos were edited. The first, and simplest to prove, was the manner in which the video was obtained. Across the country, different states have different laws about surreptitious recording of conversations that have a reasonable expectation of privacy. Three of the states O’Keefe and Giles visited have two-party consent laws on the books, meaning that everyone involved in the conversation must be made aware that it is being recorded. In those states, California, Maryland and Pennsylvania, lawsuits have been brought against O’Keefe and Giles for violation of those laws. In Maryland, ACORN, Thompson and Shera Williams, the other employee in the Baltimore video, have filed suit at O’Keefe, Giles and Breitbart.com LLC, who originally hosted the videos, for violating Maryland law which prohibits both the recording and release of the videos without disclosure (Acorn v. O’Keefe 4).
During his investigation in California, Brown granted O’Keefe and Giles immunity from criminal prosecution under the state’s Invasion of Privacy Act in exchange for the raw, unedited tapes. In his report, Brown states that because both cooperated in his investigation, the Attorney General’s office “did not focus on the circumstances surrounding the conversation to determine if the recordings themselves violated California law.” A violation of the law could lead to an alternate felony or misdemeanor charge. The law also allows for “a private cause of action […] for any person injured by a violation of the Act” (Brown 17). Juan Carlos Vera, the employee targeted in the San Diego sting video, chose to pursue this cause of action and also sued O’Keefe and Giles. In his complaint, Vera specifically cited the Invasion of Privacy Act (Vera v. O’Keefe 3). In California, the courts have also established that members of the media, filmmakers and journalists, are not exempt from the Invasion of Privacy Act under the First Amendment. In Dietmann v. Time Inc., the Ninth Circuit Court of Appeals disagreed that “hidden mechanical contrivances are ‘indispensable tools’ of newsgathering” and that the First Amendment does not “accord newsmen immunity from torts or crimes committed during the course of newsgathering.” The Project Veritas website lists recording laws throughout the country, noting that three of the states targeted during the sting operation are two-party states. It is unclear whether this information was added before or after the ACORN sting took place. Both O’Keefe and Giles have launched legal defense funds in response to the lawsuits.
Thus far, however, no lawsuits are pending for defamation or a false light invasion of privacy. The videos were recorded under false pretenses, edited in a deceptive and manipulative way and accused ACORN employees of illegal conduct. The most likely reason that no one has sued O’Keefe, Giles or Breitbart for defamation or invasion of privacy is because it is extremely difficult to win a case on those grounds.
The best-known case establishing defamation law in this country is New York Times v. Sullivan, which established the public officials are not able to sue for damages on the grounds of defamation, because of the freedom of speech and of the press afforded by the First Amendment. A later decision expanded this to include public figures as well. Most of the individuals involved in the videos would not be considered public figures, but ACORN as an organization probably would. Because ACORN was frequently mentioned in the media throughout the 2008 election, the group would have to prove that O’Keefe and Giles acted with actual malice, knowing that their claims were false and that they had shown a reckless disregard of the truth (New York Times Co. v. Sullivan). Though O’Keefe and Giles both openly admitted that their goal was to bring ACORN down and, at least in California, the evidence showed that the videos had been edited in misleading ways, ACORN would still face an uphill battle as many defamation lawsuits have been decided in favor of the media. The courts have frequently sided with news organizations citing that to allow defamation lawsuits by public officials or figures would restrict the freedom of the press, as the media would constantly feel the need to censor themselves for fear of litigation (New York Times v. Sullivan).
Private figures have greater latitude in defamation cases, but still face difficult sets of circumstances. In Rosenbloom v. Metromedia, Inc. the Supreme Court found that the media should be protected under the New York Times v. Sullivan privilege if the issue is of public interest. Since ACORN had been in the media repeatedly throughout the 2008 elections, New York Times v. Sullivan could be considered valid in this case. That would make any individual claim by an employee difficult to prove actual malice, as O’Keefe and Giles were targeting ACORN as an organization, not them as an individual. However, in Gertz v. Robert Welch, Inc. the Court found that states could allow a private person could collect actual damages against the media, “so long as they do not impose liability without fault.” The decision lowered the threshold a private citizen had to meet in proving actual malice. The Court also found that because private citizens had fewer avenues for defense than public officials or figures, thus they should be allowed more legal remedies. Because the employees caught up in the ACORN videos all lost their jobs due to the videos, they could seek actual damages for lost wages, as well as, financial harm due to harm to their reputations.
Another option may be the false light tort, which is “publicizing a highly offensive and false impression of another” (Alderman and Kennedy 156). Though O’Keefe did not manipulate the actual statements made by the employees, he did manipulate their meaning with added voiceover. For instance, in Tonja Thompson’s statements about finding the appropriate legal code for Giles’ profession were manipulated to imply that she was finding a legal code to cover up an illegal profession. Rather, Thompson contended that she understood that Giles was an exotic dancer, not a prostitute (Harshbarger and Crafts 43). Similarly, the video posted on YouTube featuring Vera implies that he is willing to assist O’Keefe in smuggling underage girls across the border. In fact, he was probing for more information, which he later reported to law enforcement (Brown 14). Unfortunately, not all states recognize false light as a tort, because of its similarity to defamation. In addition, in the case of Braun v. Flynt, the Fifth Circuit court found that because of the similarities between false light and defamation, petitioners could not seek damages for both (Alderman and Kennedy 201). California is a state that recognizes the false light tort. Under the law, plaintiffs must prove that a statement created a false impression. In the case of the California ACORN videos, O’Keefe wrongly implied that the employees featured in the video were engaged in illegal conduct, an implication proven false by the Attorney General. Still, if suing under false light, the plaintiffs must still show that the statements created a false impression, that it would be considered “highly offensive to a reasonable person,” that they were sufficiently identified and that the false implication was due to the defendant’s fault (“California: False Light”).
About a year and a half after the highly successful ACORN sting, O’Keefe found his way into the limelight again with another undercover operation, this time against National Public Radio. In a video released on March 8th, two undercover operatives working with O’Keefe meet with two NPR fundraising executives about a possible $5 million donation to the news organization. Throughout the conversation, Ron Schiller, NPR’s senior vice president for fundraising, is heard making disparaging remarks about Republicans and the Tea Party. The video also shows Schiller laughing at the suggestion that the purported organization, the Muslim Education Action Center, sought to spread Sharia law. Schiller is also heard making statements that NPR would be better off without federal funding (Veritas Visuals “NPR Muslim Brotherhood Investigation Part I”).
The media reaction to the video was swift. NPR itself covered the firestorm, updating their blog, The Two-Way, repeatedly through out the day. NPR released a statement that the statements made by Schiller were “contrary to what NPR stands for” (Memmott). Schiller, who had announced earlier in the year that he would be leaving NPR in May, tendered his resignation, effective immediately. NPR CEO Vivian Schiller also resigned because of the videos (“Activist Releases Another Recording with an NPR Fundraising Executive”).
Like ACORN, NPR had been a frequent victim of conservative attacks. Republican members of Congress have repeatedly tried to end federal funding for the news organization, citing an alleged liberal bias. For O’Keefe, though, the driving force behind the operation was the firing of news analyst Juan Williams in late 2010. In that incident, Williams had expressed a personal opinion while appearing on Bill O’Reilly’s program “The O’Reilly Factor.” In answering a question, Williams stated that people wearing Muslim garb on planes worries him. The comments violated NPR’s code of ethics, which prohibited NPR employees from stating opinions while appearing on other media outlets (Stelter).
And, as in his previous undercover operations, the raw, unedited versions of the recordings show a different story. In a rather unexpected move, the conservative website TheBlaze.com looked at the edited video and compared it to what actually unfolds on the raw tapes. Specifically, The Blaze looked at whether the videos “reveal problematic editing choices,” whether the “assertions made in the video [are] misleading” and whether “tactics used by the video producers [were] unethical” (Baker). The Blaze looked at six specific areas in the video that reflected a different truth than in the raw content. In the introduction to the video, O’Keefe sets up the situation, saying that the two executives were meeting with men claiming to represent a Muslim Brotherhood front group. In the raw video, the men can be seen downplaying their connections to the organization. The section where Schiller seems to laugh at the suggestion that MEAC advocates the acceptance to Sharia law is heavily edited. The laugh and question, “Really? That’s what they said?” was actually taken from another point in the conversation. Schiller was responding to comment about confusion over the restaurant reservation.
Probably the most controversial statements and what ultimately led to his resignation were Schiller’s comments about Republicans and the Tea Party. In the edited version, Schiller is heard taking off his NPR hat and making comments specifically about the Tea Party, calling them xenophobic and racist. NPR ombudsman Alicia Shephard cited that portion of the video as Schiller’s undoing. According to Shephard, Schiller broke the golden rule of fundraising by going rogue. But the unedited video shows that not all the comments shown in the released version were attributable to Schiller. The Blaze’s investigation showed that many of the statements were actually made by two prominent Republicans, as Schiller recounts, one a former ambassador. Other points of the video show that Schiller expressed hesitation to criticize Republicans as uneducated.
Finally, The Blaze looked at the section regarding federal funding for NPR. In the video, Schiller is heard saying that NPR would be better off without federal funding in the long run. These statements were particularly damning coming from an NPR executive. But the raw video shows that Schiller explained just how important federal funding is for local stations and emphasizing that NPR is doing “everything [they] can to advocate for federal funding.”
As a result of the video and subsequent media firestorm, the Republican-led House of Representatives voted 228 to 192 in favor of ending federal funding for NPR. The move was largely symbolic as Majority Leader Harry Reid is unlikely to bring the bill to the floor of the Senate, where it would almost certainly fail anyway (Steinhauer).
An examination of the legal ramifications in the NPR sting present a different set of circumstances than apparent with the ACORN videos. Schiller may have some avenues to pursue damages from O’Keefe, but the road would most certainly be more difficult.
First off, Schiller has no invasion of privacy claim for the covert recordings for a number of reasons. Washington D.C. only requires one-party consent for recording conversations. Because the two operatives from Project Veritas knew about the recording equipment, no laws were broken (“District of Columbia Recording Law”). Even if the District had a two-party consent law on the books, Schiller would still be unable to sue for invasion of privacy, as the recordings took place at a public restaurant where the was no reasonable expectation of privacy.
If Schiller sought to sue for defamation, he most likely have to contend with the New York Times v. Sullivan standard to determine whether he would be considered a public figure. Since the sting, Schiller has become well known for his involvement, unlike the ACORN employees who, though named, remained largely anonymous in the media. Even if he would still considered a private figure, Schiller would have to contend with the overall newsworthiness of the story. O’Keefe has stated that the operation was in response to the Juan Williams incident which happened a few months earlier. Congress had also voted to defund NPR earlier in the year, prior to the sting, based on on-going accusations of bias. Schiller may also have to contend with the fact that while some of his statements are misattributed to him, he did very clearly make statements that were his own opinion. In Haynes v. Alfred A. Knopf, Inc. the Seventh Circuit Court of Appeals found that the impact of “an alleged falsehood pales” when up paired with already damning truths.
Schiller could also seek damages for a false light, a tort that is recognized in the District of Columbia. The video could seem to create a false impression that Schiller believes certain things about Republicans and the Tea Party. But again, his own statements would lead a reasonable person to the same conclusion as the misattributed statements.
Any lawsuits brought against O’Keefe for defamation or false light could address a number of questions that have yet to be decided in the courts. Over the years, the courts have routinely ruled in favor of journalists under the protection of the First Amendment freedom of the press. However, with the rise of the Internet and new technology, the definition of a journalist has blurred. At one time, a journalist was restricted to a person who wrote for a newspaper, magazine or reported for a broadcast organization. Today anyone with a camera or a blog and access to the web can disseminate information and call himself or herself a journalist. The closest the country has gotten to an actual definition of a journalist was the Free Flow of Information Act of 2009, a bill that failed to get a vote during the 111th Congress. The act defined a journalist as someone
“with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest.”
The definition goes on to list the means with which a journalist must disseminate the news. While electronic means are mentioned, the law seems to require that a covered person be employed by an official news organization, whether broadcast or print.
On his website and in interviews, O’Keefe calls himself journalist. He claims to be conducting undercover investigations in the muckraking tradition. He admits that he has had no formal training in journalism. O’Keefe also is not and has never been employed by a recognized news organization. The methodology employed by O’Keefe also works against his claims as a journalist. In both undercover operations, O’Keefe and those working on his behalf misrepresented themselves in order to obtain access. Subsequently, the videos were edited to show their victims in a misleading light to pursue a specific agenda. In an interview with NPR’s “On the Media” O’Keefe defended his actions, specifically the misleading editing that implied Schiller laughed at the prospect of spreading Sharia law, saying that journalists edit together introductory sequences in that way all the time. “On the Media” anchor Bob Garfield disagreed, saying that cutting video from one place and dropping it into another was obfuscation. Garfield implies that O’Keefe has a tenuous relationship with ethical journalistic practices. For these reasons, O’Keefe may not be entitled to the full protection of the Freedom of the Press.
O’Keefe’s first big sting operation had the impact it did, because of the support and access of Andrew Breitbart, who posted the videos on his site, BigGovernment.com. Breitbart has worked as a journalist before, writing a regular column for the Washington Times. As the publisher of the sting videos, Breitbart is most likely protected from litigation based on the precedent established by Blumenthal v. Drudge. In that case, the DC District Court found that AOL was afforded immunity as the publisher of the content provided by Matt Drudge by the Communications Decency Act. Breitbart has contended that he provided a platform for O’Keefe’s ACORN videos, but did not contribute in any way to the content.
Additionally, the courts have not yet addressed the subject of misleading editing, though two cases are pending that could affect litigation going forward. In Price v. Stossel, Dr. Frederick K. Price sued “20/20” correspondent John Stossel, along with others involved with a broadcast, for using a clip of a sermon out of context. In a segment, Stossel was investigating wealthy preachers, using Price as one of his examples. A clip of Price listing his numerous possessions and wealth is shown to illustrate the point. However, the clip was actually taken from a sermon where Price was telling a story about a man who was unhappy in spite of his great wealth, speaking from the perspective of the man. The district court dismissed the case under California’s anti-SLAPP statute, but on appeal the Ninth Circuit Court reversed the dismissal of the express defamation claim. The court did not make a decision on whether the broadcast was defamation, but rather allowed the case to go to trial. That case is still pending.
More recently, Shirley Sherrod filed a complained against Andrew Breitbart and an unnamed John Doe for defamation due to misleading editing. In the summer of 2010, as the midterm elections were heating up, the NAACP called upon the Tea Party movement to condemn the racist elements of their midst. In response, Breitbart posted a clip of Sherrod speaking at an NAACP banquet under the headline “Video Proof: the NAACP Awards Racism.” In the clip, Sherrod, who is a black woman, talks about how she did not help a white farmer as much as she could have to save his farm. Within 48 hours, Sherrod had been condemned and forced to resign for her statements and subsequently offered her position back as the full context of the clip emerged. In her speech at the NAACP, Sherrod told a story about the first time she had to help a white farmer and as the story unfolded, it became clear that it was really about her journey to overcome her prejudices and transcend race. The white farmer she helped spoke out, saying Sherrod had saved his farm. Sherrod also received apologies from the NAACP, the White House and the Secretary of Agriculture, and even members of the media who were quick to judge, including Bill O’Reilly, offered apologies.
In February of this year, Sherrod filed a complaint against Breitbart in the Superior Court of the District of Columbia for publishing false and defamatory statements on his website. In the complaint, Sherrod clearly points out that her comments were “edited, deceptively, to create the appearance that Mrs. Sherrod was admitting present-day racism” (1). Breitbart contends that he is not liable, because he was merely the publisher and he received the clip from an unnamed source already edited. However, Sherrod contends that the text of his blog post also includes defamatory and false statements. The outcome of Sherrod’s lawsuit is unclear. Because she was a public official at that time, Sherrod would most likely have to prove actual malice and a reckless disregard for the truth by Breitbart. Either way, the lawsuit could impact other cases going forward. If the courts side with Sherrod, victims of deceptive editing could have much greater ability to collect damages. If Breitbart is in the clear, online publishers, bloggers and journalists could find themselves with free reign to post whatever they like regardless of the truth.
After looking closely at the precedents established by years of defamation and false light case law, it is clear that many of O’Keefe’s victims could sue for damages. So why haven’t they? Largely because of the time, money and effort involved with a lawsuit. O’Keefe himself has already been sued three times by ACORN and former employees for violating privacy laws by illegally recording conversations. O’Keefe was also arrested and fined $1,500 after pleading guilty for a misdemeanor in New Orleans for entering a federal building under false pretenses. In that operation, O’Keefe and three others were apparently trying to tap Senator Mary Landrieu’s phone (Vargas). O’Keefe has set up a legal defense fund to help pay for his legal fees. Breitbart and even some Fox News hosts have all offered to help.
Save for Schiller, who is very unlikely to sue, O’Keefe’s victims were all part-time staff, not supervisory level employees at ACORN (Harshbarger and Crafts 13), all of whom lost their job. It is unlikely that any of those victims would have the resources available for a long, drawn out legal battle. There is also checkered history of lawsuits going up against the media. While the ACORN employees do appear to have a decent case against O’Keefe, the outcome is by no means guaranteed and ultimately, it may not be worth the effort.
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