What is ACORN thinking?
If you've turned on the TV or the radio or the internet in the last two weeks, you've seen the huge shit-storm over the release of undercover video by self-described conservative activists who dressed as a pimp and a prostitute, visited various ACORN offices, and got hilarious footage of ACORN employees condoning and encouraging prostitution, sexual enslavement of immigrant children, and various forms of fraud. The death-knell of ACORN's hopes that this could be dismissed as a right-wing frame-up sounded when Jon Stewart came along and kicked them in the nuts.
Now, incredibly, ACORN and two of its employees — specifically, two employees that ACORN fired for the videotaped misconduct — are suing the undercover mock-pimp-and-ho team of James O'Keefe and Hannah Giles, as well as Breitbart.com III, the media juggernaut devoted to relentless coverage of Andrew Breitbart and whatever annoys him on any particular day. The complaint is here, originally courtesy of Politico.
In the complaint, filed in Baltimore City Circuit Court by Andrew Freedman of Baltimore's Brown Goldstein Levy, ACORN and the two people it has just fired claim that O'Keefe and Giles, by conducting one particular undercover recording in Baltimore, violated Maryland's wiretapping law, Maryland's Courts and Judicial Proceedings Code 10-402(a) and 10-410. Those statutes make it illegal, in broad terms, to record or intercept private conversations without consent. Maryland is a two-party state. The Plaintiffs also claim that Breitbart violated the law by broadcasting the videos on its web sites. ACORN and its former employees demand statutory damages, damages for emotional distress, damages for harm to reputation, and damages for the employees losing their jobs.
I really have to ask how carefully Andrew Freeman has thought this through. Here are but a few quick-and-dirty thoughts about the problems with the lawsuit:
1. Food Lion Precludes Damages For Harm to Reputation: It's highly doubtful that ACORN or its former employees can recover any damages directly or indirectly related to harm to reputation or emotional distress. That argument is probably foreclosed by Food Lion v. ABC, in which the Fourth Circuit overturned significant parts of a judgment against undercover reporters who posed as Food Lion employees and recorded a report on the alleged sale of expired meat. The Fourth Circuit overturned parts of the judgment mostly on state law grounds — it found that Food Lion could not connect the conduct to actual non-reputational damages. Crucially, the court made it clear that Food Lion — which did not sue for defamation, but sought damages for harm to its reputation — could not use state law claims as a ruse to avoid First Amendment restrictions on defamation claims. Specifically, the Court said that the Supreme Court's decision in Hustler v. Falwell prevented Food Lion from making an "end run" against the elevated standard of proof in defamation cases established in such authorities as New York v. Sullivan: "Hustler confirms that when a public figure plaintiff uses a law to seek damages resulting from speech covered by the First Amendment, the plaintiff must satisfy the proof standard of New York Times." The Fourth Circuit also specifically rejected the claim that Food Lion could evade this standard because the videotaping was wrongful under state law.
Now, the two individual ex-employees of ACORN aren't public figures, so they wouldn't have to satisfy the New York Times standard for public figures. Nevertheless, with respect to reputational harm, truth is an absolute defense to claims of defamation by both public and private figures (with possible argued-about exceptions not relevant here). The ACORN employees would have to establish that the videotapes were faked, or what was said about them was untrue. This seems unlikely.
Finally, Food Lion noted that it did not reach the alternative ground upon which the trial court had relied for denying reputational damages to Food Lion — the issue of proximate cause. The trial court in Food Lion found that the proximate cause of Food Lion's torpedoed reputation was its sale of tainted meat, not ABC's revelation thereof. The same argument could well apply to ACORN and its employees — their own conduct, not its revelation, proximately causes people to think they are crooks.
Absent reputational and emotional damages, it is likely that the statutory damages will be trivial, and punitive damages will be limited by current Supreme Court precedent to a low multiple of those trivial damages. That's Andrew Breitbart's monthly cab fare.
2. Whether the Conversations Were Private Within the Meaning of the Maryland Statutes Is Open to Question: With respect to live recording (as opposed to wiretapping phone conversations), the statute only prohibits recording private conversations. That's in the definition section of the statute: "Oral communication" means any conversation or words spoken to or by any person in private conversation.
The statute doesn't define what a "private conversation" is. However, there is some authority on the subject. I haven't yet done a full Westlaw search for Maryland law, but 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. Circumstances suggesting that other people might overhear — other people within earshot, voices raised loud enough for others to hear, etc. — defeat that expectation of privacy. So — if the recorded conversations took place in circumstances where other people in the ACORN office could overhear them, it is possible that the conversations were not "private" within the meaning of the statute. (ACORN might counter that the only people who could hear were other ACORN employees).
There are other more aggressive cases out there — federal ones, at least — suggesting that a conversation is not "private" if there is no objectively and subjectively reasonable expectation that all parties will keep the contents confidential. I haven't yet seen any indication that Maryland would go that far.
But suffice it to say that the defendants can contest the applicability of the statute.
3. The Plaintiffs Can't Get Damages For Breitbart's Republication: ACORN is shit out of luck on getting damages from Breitbart for broadcasting the videos unless it can show that Breitbart participated in their unlawful recording. To the extent it says otherwise, the Maryland statute is clearly unconstitutional. The relevant case is Bartnicki v. Vopper, in which the Supreme Court found that the First Amendment prevented punishment of republication by third parties of illegally recorded conversations when the recordings were on a matter of public interest. No doubt ACORN will argue that Breitbart orchestrated the whole thing. Good luck proving that.
Based on the law, ACORN, its employees, and Andrew Freedman may wind up feeling fortunate that Maryland does not have a SLAPP statute. [edit: in the comments below, Karl points out that this appears to be incorrect.]
That's all the holes I have managed to poke in a few hours. But the political outlook for ACORN is even worse. Filing a lawsuit against people who revealed such misconduct will not play well in Congress. Rather, it is likely that the suit will whip up anti-ACORN sentiment and doom any chances that ACORN will regain funding. Would you want federal funds to go to an entity that commits misconduct and then sues people who reveal it? Moreover, the suit will allow the defendants — if they don't get out on a motion to dismiss — to use the discovery process to rampage through ACORN's records in an effort to prove that any reputational harm to ACORN was a result of ACORN's actual bad behavior being revealed. Does ACORN really want to roll the dice and count on getting a judge who won't let the defendants delve deeply into their practices and into the bases for their reputation?
I'm scratching my head over this one.