From A Little ACORN A Not Particularly Mighty Lawsuit Grows

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28 Responses

  1. Scott Jacobs says:

    Hey Ken…

    How about discovery? How entertaining do you suspect that might end up being?

  2. Ken says:

    Somebody didn't read to the end. :)

  3. Scott Jacobs says:

    I was just testing you…

    Also I was proving that I really should sleep more that 4 hours in three days…

  4. Xmas says:


    You cite Hustler.

  5. Patrick says:

    Ken, while I agree entirely with the thrust of your post, I'll point out that Food Lion was decided on a federal court's interpretation of North Carolina law, and that North Carolina's appellate courts, to this day, have never explicitly recognized that a tort for invasion of privacy even exists under state law.

    While it's an influential case, Food Lion is binding precedent only to federal courts in the Fourth Circuit interpreting North Carolina law. Two judges on the state court of appeals could overturn its holding, as it applies to the issue concerned, were they presented with the right case. The First Amendment issues, on the other hand, may indeed foreclose any cause of action for damages.

  6. Jag says:

    I'm still trying to figure out why ACORN would also bring suit on behalf of the 2 employees THEY fired? They even make their lost employment part of the claim.

  7. Patrick says:

    Because they're idiots Jag. Because their board is composed, in part, of the most radical sort of lawyer who represents only plaintiffs and who is inclined to sue just to "prove a point," whether the case has merit at all.

    Public interest lawyers are on balance a benefit to society, but I'd be cautious about taking a public interest lawyer's advice to sue on anything. They're famous for tilting at windmills, or in other words, for suing defendants they know they can't beat just to punish the defendant for conduct that is legal but of which the lawyers disapprove.

  8. Ken says:

    Patrick: of course I understand that Fourth Circuit law is not binding in Maryland, and I pointed out that a large portion of its holding was premised on a reading of state law. But I think that its application of the First Amendment might be broader than you imply. The way I read it, even if North Carolina had a tort for invasion of privacy, Food Lion would not permit a plaintiff to recover reputational damages under that tort unless the plaintiff could satisfy First Amendment standards (such as by showing that the defendant's invasion of privacy involved maliciously false statements.) That's probably consistent with SCOTUS precedent, including such cases as Time, Inc. v. Hill.

    The unstated premise of my citation of Food Lion was that a trial or appellate court in Maryland, faced with the question of whether undercover journalism is protected from suit by the First Amendment, is likely to view Food Lion as persuasive and as the big kid on the block, even though it is not controlling.

  9. Jag says:

    I'm unfortunately aware of public interest lawyers and the damage they can do. I used a high profile and respected DC lawyer a few years ago who wanted us to prove a point to the FDA.

    After several hundred thousand dollars and some veiled threats from Justice, we withdrew the suit and stopped using him.

  10. Jdog says:

    Question from the peanut gallery: can they unstep in it? Now that combat has been engaged, can they avoid the proctological discovery by withdrawing the suit, or do the suees have some say in that?

  11. Ken says:

    Jdog, yes with an if, or no with a but:

    1. I'm not a Maryland lawyer, but in many jurisdictions the defendant has some say in whether the plaintiff may dismiss a suit without prejudice (meaning with leave to re-file later) or with prejudice (meaning precluding the ability to sue again later.)

    2. Under many anti-SLAPP statutes, you can't avoid the motion and the award of attorney fees through dismissing before the hearing. I don't see that provision in the Maryland statute, though it might be judicially imposed. So if the defendants can get an anti-SLAPP motion filed before they can dismiss, they may have a right to have it heard.

  12. rfy says:

    Pennsylvania is a 2 party state too, and PA has a very strict electronic surveillance law in the Crimes Code. I think O'Keefe and Giles did some great journalistic work. But I've read they went to ACORN in Philadelphia. If they didn't do some due diligence on the visual and audio taping laws in the states they visited, they've put themselves at risk under both civil and criminal law. At least in PA and maybe elsewhere. I was even a bit hesitant about making this comment, butwiretaping laws aren't much of a secret. Maybe they went forward knowing the risks, maybe not. If they did so knowing the risks, more kudos to them.

  13. timb says:

    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.

  14. Ken says:

    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.

  15. Louise says:

    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….

  16. Louise says:

    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??????????

  17. PaulD says:

    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.

  18. Brooks says:

    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).

  19. Jdog says:

    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.

  20. Patrick says:

    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.

  21. Base of the Pillar says:

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

  22. Papertiger says:

    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.

  23. PaulD says:

    "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

  24. Ken says:

    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.

  25. lcp says:

    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.

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