Stinging ACORN

by Thomas Brom

Guy comes into your office. Says he invests in tax avoidance schemes and needs a "more likely than not" letter to get past IRS scrutiny. Says legal fees won't be an issue, and he wants you on retainer. You listen, ask a few questions, and promise to get back to him. Guy leaves, but he's captured you on tape - using a hidden camera - looking like you're conspiring to commit tax fraud.

The guy was a shill, and his tape is intended to hurt your practice. You're in California, so you know that surreptitious recording is a violation of the state's Invasion of Privacy Act (Cal. Penal Code §§ 630-637.9). But in 38 other states and the District of Columbia, it's legal. And if the tape hits the Web, you can't stop your clients from seeing it anyway.

Last summer, eight offices of the Association of Community Organizations for Reform Now (ACORN) were targeted in just such a sting. James O'Keefe, who describes himself as an independent filmmaker, and Hannah Giles, a sophomore at Florida International University, visited ACORN offices in five cities posing as a pimp and prostitute seeking help setting up a brothel with underage Salvadoran girls. O'Keefe used a hidden camera to record reactions, which included two female staffers in Baltimore offering helpful tips. A manager at the Philadelphia office, however, asked O'Keefe and Giles to leave and filed a police report. The two also taped in New York and Washington, D.C. - where surreptitious recording is legal - and in California, where it is a felony.

By early August, O'Keefe and Giles had brought their tapes to Andrew J. Breitbart, a conservative Internet entrepreneur in Los Angeles. According to Michael J. Gaynor, a former partner in New York's Gaynor & Bass and a frequent contributor of anti-ACORN posts on WebCommentary.com, O'Keefe and Giles then ran three more stings at ACORN offices in California. Breitbart released the edited tapes on his website, BigGovernment.com, and posted them on YouTube, where the clips went viral.

For all the posturing over ACORN's alleged corruption, the legality of the sting went largely unexamined. It has been described variously as a stunt, an investigation, or - among ACORN's defenders - a private entrapment. And ACORN wasn't O'Keefe's first target. On Townhall.com, a conservative website, Giles has described O'Keefe's previous surreptitious taping of phone calls to Planned Parenthood offices, intended to capture responses to an offer to contribute money if it were used for black women to get abortions.

If the stings qualify as reporting, O'Keefe and Giles have constitutional protection under the First Amendment. ABC News successfully defended a sting by two of its reporters in 1992 who had been hired as food handlers by the Food Lion supermarket chain. Their surreptitious videotape of unhealthy food conditions was broadcast on Primetime Live, causing Food Lion's sales and stock price to drop and provoking a lawsuit (Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)). The company alleged that ABC was liable for fraud, breach of the duty of loyalty, trespass, and unfair trade practices, among other claims. A jury found the defendants liable for fraud, and the reporters liable for breach of the duty of loyalty and trespass. But on appeal, the Fourth Circuit reversed the fraud verdict, holding that newsgathering implicates First Amendment interests. It affirmed the reporters' liability for breach of the duty of loyalty and trespass, but it awarded Food Lion only $2 in damages. The court observed, however, that "the media have no general immunity from tort or contract liability." (194 F.3d at 520 (citing Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995)).)

But what if stings are simply provocations intended to harm the target? What do you call it when a filmmaker and an accomplice troll community storefronts until they catch employees on video looking foolish? In theory, O'Keefe and Giles could be sued for harassment, invasion of privacy, fraud, defamation, conspiracy, and unfair business practice.

But they won't be - not with a half dozen investigations of ACORN currently underway. The only complaint to date is a suit by the Baltimore ACORN office and its two fired employees against O'Keefe, Giles, and Breitbart for violating Maryland's wiretap law. There's also a chance Attorney General Jerry Brown might charge the trio with violating California's privacy act.

Whatever O'Keefe, Giles, and Breitbart did, it wasn't entrapment. "There is no defense of private entrapment," Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals wrote in a particularly apt recent case involving a mother's sting to entrap a would-be online pedophile. "Individuals tempted, induced or set up by anyone besides a state agent cannot raise an entrapment defense to criminal charges. Historically this was not a problem because most individuals, even if they had the motivation to entrap others, did not have the resources to orchestrate a sting while protecting themselves from retaliation if caught. Private entrapment was therefore a rare occurrence. The Internet has changed this, for better or worse, at least for the crimes perpetrated partly online." (U.S. v. Morris, 549 F.3d 548 (7th Cir. 2008).)

Breitbart's rollout of the ACORN clips was brilliant. Within weeks, Congress passed and President Obama signed a continuing appropriations resolution declaring in section 163 that, "None of the funds made available by this joint resolution or any prior Act may be provided to [ACORN], or any of its affiliates, subsidiaries, or allied organizations."

Lawyers for ACORN responded with a constitutional challenge under the Bill of Attainder Clause (Article I, Section 9), alleging that Congress had legislatively determined guilt and inflicted punishment without the protections of a judicial trial. In early December, District Judge Nina Gershon indicated she agreed, holding that plaintiffs had shown "the likelihood of irreparable harm" from section 163, and granted plaintiffs a preliminary injunction (ACORN v. United States, 09-cv-4888 (E.D.N.Y.)).

"Obviously, we are very pleased," says Darius Charney, a staff attorney at New York's Center for Constitutional Rights who represented ACORN. "But we expect to be back in court soon because the same language appears in the appropriations bill for the 2010 budget, which Congress has enacted."

ACORN's opponents also reacted quickly. In a letter requesting that the Department of Justice appeal Gershon's ruling, Rep. Darrell Issa (R-Vista) wrote, "If allowed to stand, it would effectively excise from the Constitution Congress's express Spending Clause power to refuse to appropriate federal funds to an organization that has shown itself likely to misuse those funds in the future."

Attorney Gaynor, however, thinks differently. "I'm a critic of ACORN, but I think Gershon issued a well-reasoned decision," he says. "De-fund ACORN properly, please," he suggests in a WebCommentary.com posting. Asked what he would do if O'Keefe and Giles had targeted his office instead of ACORN's, Gaynor says, "I practice law in New York, [where] the taping would be legal. So the key question would be, 'Was it truthful?' If their tape was accurate, then there's a public interest in my exposure."

Tell your people out front: The rules have changed; it's time to be careful.

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