Michael Gaynor
BigGovernment, Fox News, surreptitious recording by O'Keefe and Giles and serendipity
By Michael Gaynor
October 26, 2009

If BigGovernment.com and/or Fox News are NOT "otherwise innocent," then Ms Giles and Mr. O'Keefe will have company on the legal hot seat.

One of the jokes at http://orion.math.uwaterloo.ca/~hwolkowi/house.d/jokes.html reads "Abraham Lincoln became America's greatest Precedent. Lincoln's mother died in infancy, and he was born in a log cabin which he built with his own hands."

The case for Lincoln as America's greatest President is strong, but Lincoln never would have been born if his mother had died in infancy and Lincoln definitely did not help his father build the log cabin in which Lincoln was born (although he helped his father build another log cabin at the age of 8).

In Lincoln's case, the truth does not need embellishment, or concealment, or substitution.

In ACORN's case, whistleblowers and investigators should tell the truth, the whole truth, and nothing but the truth.

Last year, at her blog (www.anitamoncrief.blogspot.com), ACORN whistleblower Anita MonCrief explained why she had come forward to testify in the Pennsylvania ACORN case:

"Coming forward was not an easy choice and I weighed my options repeatedly and realized that there was not much of a choice. ACORN is a corrupt organization that is preying on the marginalized in this society and they have become the cancerous growth of this election.

"I have never claimed to be perfect and only answered questions honestly on the stand. ACORN brought 3 witnesses to testify but only two did. What happened? Karyn Gillette had the opportunity to take that stand and call me a liar and 'set the record straight' and instead she fled the courtroom. Ms. Gillette sat two seats from me on the same row and as I prepared to face my former mentor and the woman who I thought was my friend, I realized that she had no idea that I would completely tell the truth and therefore she was confident in her role as the person sent by ACORN to discredit me.

"After I testified under oath, I noticed that the attitude of the ACORN people had changed in the room, the intimidating stance was gone as Karyn typed on her Blackberry at lightning speed, and the other ACORN folks heard the truth in my words."

It takes enormous courage for a human being to do what Ms. MonCrief has been doing, but she is what America needs: a former insider turned away from radicalism and daring to expose lies with the truth, the whole truth and nothing but the truth (not truth presented in a sensational and appealing but not wholly truthful way).

Has serendipity come to America's rescue too?

Serendipity: "the faculty of finding valuable or agreeable things not sought for."

For Andrew Breitbart, soon to start BigGovernment.com, and Fox News, soon to have the Obama Administration declare it "an opponent," those spectacular ACORN videotapes starring Hannah Giles and James O'Keefe, reportedly appeared serendipitously.

Ms. Giles' explanation of the idea of the sting coming to her is set forth at Wikipedia:

"While being interviewed by Sean Hannity of FoxNews, Giles said she conceived of this idea during a summer jog.

'It's amazing what girls think about when they are jogging. And that was just something that popped into my head. I had never seen an ACORN office, I really didn't even know that they existed and I jogged into the wrong part of town, saw some homeless people and street ladies and I put two and two together when I turned around to get back into a safe neighborhood. And it's like — what if these people went into ACORN — a prostitute and what would come from that? No bills, no nothing — would they get a house? Could they start a business? So we put it to the test.'

"Giles and O'Keefe met when she called him to discuss her idea and suggested that together the two portray the prostitute and her pimp. The two spent $1300 on the investigation."

Ms. Giles' father, Doug Giles, in "No, It Wasn't My Idea for Hannah Giles to Dress Like a Hooker and Infiltrate ACORN" (September 19, 2009), reported:

"The truth of the matter, from a timeline standpoint, is that [Ms. Giles and James O'Keefe] hatched their plan in May of '09, fine-tuned it from May 20th — July 23rd, and then launched July 24th, fully accomplishing their mission by the end of August. And that's a fact to all those for whom facts still matter."

The whole truth about the facts and the law should matter to all.

What Ms. Giles and Mr. O'Keefe did was astonishing.

But was all of what they did lawful?

It is not disputed that the surreptitious recording than resulted in the sensational videos was lawful in the District of Columbia and New York, where one party consent is sufficient.

But there also was surreptitious recording in Maryland, California and Pennsylvania and those states criminalize recording without the consent of all parties to a conversation.

That poses a big legal problem.

Fellow ACORN watcher Matthew Vadum, in an October 23, 2009 response to an article of mine titled "One-party Consent to Surreptitious Recording Should Be Lawful Everywhere" (October 23, 2009), asserted "a sneaking suspicion that the extant two-party consent laws that Gaynor defends in a lawyerly way on federalist grounds, would fall on constitutional grounds if challenged in court — at least insofar as they conflict with press freedoms."

To be clear, I do favor one-party consent laws and do NOT favor what are called two-party or all-party consent laws.

As an attorney who has studied the applicable law, however, I recognize two-party or all-part consent laws as constitutionally permissible.

Mr. Vadum (who is not a lawyer): "For all I know, challenges of 'wiretapping' laws have already gone before the courts. Even if they have and such laws have been upheld, the modern trend is towards an expansive view of the First Amendment and this is a good thing. A law upheld decades ago might be struck down today."

Don't plan on the surreptitious recording laws of Maryland, California or Pennsylvania being struck down or believe that journalists are above the law or citizens can put themselves above the law by appointing themselves "citizen journalists" or deciding to make a video.

Footnote 19 to the majority opinion in Bartnicki v. Volper, 532 U.S. 514 (2001) states: "Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. 'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."

No ethical attorney could have condoned surreptitious recording in a state which criminalizes it and hopeful no attorney or other person cognizant of the law did.

Exposing ACORN the way that Ms. Giles, 20, and Mr. O'Keefe, 25, did was a task for intrepid young persons who could plead ignorance of the law and the best of intentions if prosecuted for surreptitiously recording in violation of state law.

I have no doubt as to the nobility of their intentions.

As for whether or not they were ignorant of the law, I don't know.

It has been reported that Mr. O'Keefe was a law student at the University of California at Los Angeles, but perhaps he was unaware of even the California law on surreptitious recording.

Ms. Giles, in a September 23, 2008 article lauding Mr. O'Keefe's earlier laudable (and lawful) sting on Planned Parenthood, pointedly noted: "In the summer of 2007 O'Keefe made phone calls to several Planned Parenthood clinics across the country. He only made these phone calls in states where it is legal to audio record without the other party's consent (i.e. Ohio, New Mexico, Idaho, Oklahoma)."

This seems to suggest that Ms. Giles and Mr. O'Keefe were both aware by 2008 that state law on surreptitious recording varied.

If so, and they realized that they might violate the criminal law in Maryland, California and Pennsylvania when they conducted their sting during the summer of 2009, then their willingness to sacrifice themselves for the sake of their country is sufficient reason for me to support declination to prosecute in the exercise of discretion or amnesty. It seems to me that they were pursuing the truth, not money or fame.

In "Maryland Shouldn't Prosecute ACORN Filmmakers" (posted at BigGovernment.com on October 23, 2009), Congressman Dan Lundgrun (R. Ca.), a former California Attorney General, acknowledged the legal problem confronting Ms. Giles and Mr. O'Keefe and compassionately advocated for them:

"Certain states, such as Maryland, have statutes prohibiting the recording of conversations without the consent of the other party. Unfortunately for the young investigative entrepreneurs, their disclosure of alleged illegal activities carried out by the ACORN employees took place in these so-called 'two party consent states' which prohibit the recording of confidential communications without the permission of all parties.

"There have been comments released by the State's Attorneys Office for Baltimore that: 'If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years.'

"Although this is may be an accurate statement of Maryland law, it should also be noted that if there were ever a case for the exercise of prosecutorial discretion, this would be it. Under the laws of the states, prosecutors have absolute discretion as to whether or not to bring a prosecution. The fundamental question in any case is whether or not the interests of justice are served by proceeding with a prosecution...."


I agree with Congressman Lundgrun's reading of the Maryland law and that Ms. Giles and Mr. O'Keefe should not be prosecuted in the exercise of prosecutorial discretion.

But it also should be noted that, Maryland law notwithstanding, the United States Constitution may protect the use of the videos by BigGovernment.com and Fox News.

The Baltimore State Attorney's Office may take a different view toward prosecuting Ms. Giles and Mr. O'Keefe, however, and the law is even more protective of privacy in California and Pennsylvania than it is in Maryland. (And Jerry Brown, not Congressman Lundgrun, is now the California Attorney General.)

So, make no mistake, in Maryland, California and Pennsylvania, Ms. Giles and Mr. O'Keefe are in legal peril, even more so in California and Pennsylvania.

Given the importance of the information contained on the videos, it is not reasonably disputable that the Constitution permits BigGovernment.com and Fox News to use them, at least if they are "otherwise innocent."

If, as reported, Mr. Breitbart serendipitously first learned of the videos when Mr. Giles brought them to his house and Fox News was not involved in the sting in any way until it reported on it, then both BigGovernment.com and Fox News were within their rights in using the videos, the Maryland statute notwithstanding.

In Bartnicki v. Volper, which involved both the federal and Pennsylvania laws against surreptitious recording, the United States Supreme Court held that a publisher who has lawfully obtained information from a source who obtained it unlawfully may not be punished by the government for the ensuing publication based on the defect in a chain.

Bottom line: BigGovernment.com and Fox News appear to be safe, because, in the words of the majority opinion in Bartnicki v. Volper, the interest in "removing an incentive for parties to intercept private conversations — does not justify applying" a statute prohibiting surreptitious recording "to an otherwise innocent disclosure of public information."

If BigGovernment.com and/or Fox News are NOT "otherwise innocent," then Ms Giles and Mr. O'Keefe will have company on the legal hot seat.

Then Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas joined, dissented in Bartnicki v. Volper, but NOT because they viewed the laws against surreptitious recording as unconstitutional:

"The Court correctly observes that these are 'content-neutral law[s] of general applicability' which serve recognized interests of the 'highest order': 'the interest in individual privacy and ... in fostering private speech."'...It nonetheless subjects these laws to the strict scrutiny normally reserved for governmental attempts to censor different viewpoints or ideas....There is scant support, either in precedent or in reason, for the Court's tacit application of strict scrutiny.

"A content-neutral regulation will be sustained if '"it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."' Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622, 662 (1994) (quoting United States v. O'Brien, n391 U. S. 367, 377 (1968)).

"Here, Congress and the Pennsylvania Legislature have acted '"without reference to the content of the regulated speech.''' Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986). There is no intimation that these laws seek 'to suppress unpopular ideas or information or manipulate the public debate' or that they 'distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.' Turner Broadcasting, supra, at 641, 643. The antidisclosure provision is based solely upon the manner in which the conversation was acquired, not the subject matter of the conversation or the viewpoints of the speakers. The same information, if obtained lawfully, could be published with impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 34 (1984) (upholding under intermediate scrutiny a protective order on information acquired during discovery in part because 'the party may disseminate the identical information ... as long as the information is gained through means independent of the court's processes'). As the concerns motivating strict scrutiny are absent, these content-neutral restrictions upon speech need pass only intermediate scrutiny."

The argument that a state cannot constitutionally enforce a content-neutral prohibition on surreptitious recording under the First and Fourteenth Amendments against "filmmakers," or journalists, or "citizen journalists" is frivolous. But it does not follow that Ms. Giles and Mr. O'Keefe should be prosecuted under the unique circumstances presented. That would be heartless and the rule of law can be maintained by the sound exercise of the prosecutorial discretion not to prosecute that is an integral part of the rule of law.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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