Michael Gaynor
What's the whole truth about the origin and legality of the "Pimp and Pro" ACORN sting?
By Michael Gaynor
December 7, 2009

Will the California Attorney General consider Breitbart legally responsible for the surreptitious recording in California, based on his own statements, even though he did not personally do any surreptitious recording at any California ACORN office?

Robert Allen, in "Political Art & the struggle to be creative in the modern world" (http://www.bluegreenearth.us/archive/reviews/2004/allen-2-2004.html):

"The role of the...the storyteller...has always been crucial during conflict against oppression....

"A primary reason for this is that we have become polarised into fiercely competing and mutually intolerant ideologies. This has not led to communication and understanding....

"We live in a world of competing lies. The old virtues of honour and honesty have tragically been lost and forgotten. Whenever we hear a statement coming from a politician, a corporate head, or a news reporter, we can have good faith that what they are saying is very likely to be partially or completely false. The absence of honour and honesty leads to the decay and collapse of nations, communities, families, and individual lives. So, who will tell the truth?

"Throughout human history, creative people have been truth-tellers. They have played important roles in countless dramas of social change. Today, it is no different...."

How much "artistic license" should be tolerated from "creative storytellers" in the political arena?

How about...none?

BigGovernment publisher, Washington Times columnist and "Pimp and Pro" ACORN Sting strategist Andrew Breitbart, in "BREITBART: The politicized art behind the ACORN plan" (September 21, 2009) (http://www.washingtontimes.com/news/2009/sep/21/breitbart-the-politicized-art-behind-the-acorn-pla/?feat=home_headlines):

"When filmmaker and provocateur James O'Keefe came to my office to show me the video of him and his friend, Hannah Giles, going to the Baltimore offices of ACORN — the nation's foremost 'community organizers' — dressed as a pimp and a prostitute and asking for — and getting — help for various illegal activities, he sought my advice....the magnitude of his latest adventure had the potential to rock the political establishment.

"I was awed by Mr. O'Keefe's guts and amazed by the footage, but explained that the mainstream media would try to kill this important and illuminating expose about a corrupt and criminal political racket, and that the well-funded political left would go into 'war room' mode, with 25-year-old Mr. O'Keefe and 20-year-old cohort Miss Giles in the cross hairs. I felt I had a moral obligation to protect these young muckrakers from the left and from the media, and to devise a strategy that would force the media's hand."

Breitbart did not date his meeting with O'Keefe or state whether they had been in contact before O'Keefe came to him with Baltimore video, but continued: "Once the American public saw with its own eyes the grotesque, common practices of ACORN's housing offices, Mr. O'Keefe and Miss Giles could no longer be a legitimate focus of media scrutiny. Kill the messenger doesn't work with the American people when they realize that the message is so devastating and honest...."

Breitbart did not mention the possibility of prosecutorial scrutiny. He describe the message as "devastating and honest," but did not opine on whether all the videos were made and publicized legally.

Breitbart continued: "I half-joked that [O'Keefe] should secretly tape pitching the major television networks exclusive use of his videos for their nightly news broadcasts."

If Breitbart half-intended that to be done in New York, it would have been legal. But in California, it would have been felonious.

Whatever the date of the meeting, there's no dispute that Breitbart masterminded the video release strategy and did so effectively.


"I told him that in addition to launching his compelling and stylized Web videos, we needed to offer the full transcripts and audio to the public in the name of transparency, and to offer Fox News the full footage of each video before each was released. We had to devise a plan that would force the media to see the evidence before they had enough time to destroy these two idealistic 20-something truth seekers. Mr. O'Keefe agreed to post the full audio and full transcript of his video experiences at BigGovernment.com.

"Thus was born a multimedia, multiplatform strategy designed to force the reluctant hands of ABC, CBS, NBC, the New York Times and The Washington Post."

Note that Breitbart used the word "We." "We" needed" to launch "his" (O'Keefe's) videos and to "offer" to Fox News "the full footage of each video before each was released."

Will the California Attorney General consider Breitbart legally responsible for the surreptitious recording in California, based on his own statements, even though he did not personally do any surreptitious recording at any California ACORN office and described the videos as O'Keefe's? (There's now no question that the O'Keefe-Breitbart meeting in California, whether in late July or early August, preceded the surreptitious videotaping in three California ACORN offices.)

Breitbart explained his ideal release strategy: "Videos of five different ACORN offices in five separate cities would be released on five consecutive weekdays over a full week — Baltimore, Washington, New York, San Bernadino and San Diego. By dripping the videos out, we exposed to anyone paying attention that ACORN was lying through its teeth and that the media would look imbecilic continuing to trot out their hapless spokespeople."

Smart strategy! But the videos surreptitiously shot at ACORN's California offices had not yet been shot before that meeting. Whether before or after that meeting, the New York video was lawfully made, since one-party consent suffices in New York. In California, however, it is illegal to surreptitiously record without the consent of ALL parties. The D.C. video was lawfully made, since one-party consent suffices there, and the videos shot in Pennsylvania and Maryland (states that prohibit surreptitious recording) were made before the meeting (but after an alleged June 2009 phone call between O'Keefe and Breitbart).

Will California Attorney General prosecute O'Keefe, Ms. Giles and/or Breitbart? Stay tuned.

Breitbart: "At the very least, filmmaker James O'Keefe and actress Hannah Giles deserve a Pulitzer Prize for their expose of deep corruption and unspeakable immorality at the ACORN housing division."

They (and Breitbart) are much more likely to be prosecuted than awarded Pulitzer Prizes, unfortunately.

On September 23, 2009, "Publius," aka Big Government Editorial Panel, posted an AP article by Justin Pritchard titled "How the ACORN 'pimp and hooker' videos came to be" at www.biggovernment.com without disputing any part of it.

AP article: "...due to coordinated promotion of the undercover sting footage by influential players in the conservative media, Giles and O'Keefe have gone from part of the pack to movement superstars."

That's true.

AP article: "Giles, a 20-year-old sophomore at Florida International University, spent the summer on a $1,200-a-month internship with the National Journalism Center, a training organization whose alumni include conservative commentator Ann Coulter...."

That's true too.

AP article: "O'Keefe and Giles insist that no one helped them conceive, execute or finance their video project...."

Is that true, or are people who helped being protected, because some of the surreptitious videotaping was illegal and the law lets media report the fruits of unlawful videotaping only if the media is "otherwise innocent"?

As the stars of the videos, O'Keefe and Ms. Giles are necessarily in legal jeopardy, but who else would want to be there with them?

In Bartnicki v. Vopper, 532 U.S. 514 (2001), 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.

BUT...footnote 19 to majority opinion stated: "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)."

In Flanagan v. Flanagan, 27 Cal. 4th 766, 41 P.3d 575 (Cal. 2002), the California Supreme Court established the applicable California law and chose a standard to afford maximum privacy. Surreptitious recording is illegal if any party to the communication reasonably believed the communication is not being recorded or overheard.


"California's Invasion of Privacy Act prohibits the recording of 'confidential communications' unless all parties to the conversation consent. The California lower courts ha[d] reached different conclusions about what constitutes a 'confidential communication.' Some ha[d] endorsed the view that 'a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties'....

"The California Supreme Court rejected this definition, however, holding that a conversation is confidential if a party to that conversation 'has an objectively reasonable expectation that the conversation is not being overheard or recorded,' regardless of whether a reasonable person would expect the contents of that conversation to be divulged to others."

AP article:

"During an interview of Giles on Sept. 10, the day the first video was posted on biggovernment.com, Beck said he had seen footage Sept. 5.

"Through a spokesman, Beck and his production company declined comment on any possible role in orchestrating the story's roll-out. Michael Clemente, senior vice president of news at Fox News, said through a spokeswoman that he would not discuss how Fox got the videos because that would reflect editorial process. He did say that 'Fox was not involved in the shooting or releasing of any of the videos,' and did not pay to make or air them."

That's NOT a denial that Fox was involved in planning or aware of the video project long before Breitbart "gave Fox the exclusive" or Beck saw the footage.

AP article:

"Giles told Beck in her first interview that she concocted the undercover video plan after taking a wrong turn during a jog in May, soon after arriving in Washington.

"Her running route that day led her past the Washington office of ACORN, a group which, according to one mentor, she had read about but had not researched extensively.

"'I was like, you know, I'd never seen them before. I don't like them,' Giles told Beck. 'And I came up with the idea.'"

On "Hannity, Ms. Giles told it this way: ""Well, Sean, 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."

I doubt that the folks who live in the Marine Barracks across the street from that ACORN office Ms. Giles claims to have jogged past consider that neighborhood unsafe.

That ACORN office that Ms. Giles allegedly jogged by and where she and James O'Keefe "put it to the test" is located at 739 8th Street SE, a few blocks south of Pennsylvania Avenue, a bit north of I-295 and across the street from a beautifully kept Marine Barracks! That area is "safe" (as my wife and daughter attested). It's well kept and not reasonably described as "the wrong part of town." When I visited Washington, D.C. over the last Thanksgiving weekend. I saw joggers and a couple of homeless people on the National Mall, but none near 739 8th Street SE and no "street ladies" at all. If the deplorable MSM (mainstream media) had not been determined to avoid or underplay the "Pimp and Pro" ACORN story, it would have scrutinized the story. But the MSM does not really scrutinize ACORN, or Obama, or even the "Pimp and Pro" ACORN story (lest it focus the kind of attention on ACORN and Obama that does not suit the MSM's agenda).

AP article:

"The premise was that [Ms. Giles] would walk in dressed as a prostitute and see whether ACORN would help her get a house and start an enterprise involving girls as young as 13 from El Salvador. She contacted O'Keefe, whom she had not met personally but whom she knew of for at least a year.

"In a September 2008 column for townhall.com, a clearinghouse for conservative news and opinion where Giles is an occasional columnist, she described her admiration of O'Keefe's activism. She cited his work surreptitiously taping phone calls with staff at Planned Parenthood clinics, who entertained and, in some cases, accepted his proposition of giving money as long as it was used for black women to get abortions.

"Giles and O'Keefe first met in person the day before making their first ACORN video, according to Richard W. Rahn, a free market advocate at the libertarian Cato Institute and an economics columnist for the Washington Times who mentored Giles during her summer."

That's the same Washington Times for which Breitbart too is a columnist.

AP article:

"Rahn had met Giles through a mutual friend of her father and helped her, treating her to a few meals and generally helping her talk through the policy issues she was tackling. He described Giles as personable, energetic and poised, someone who 'had read up quite a bit on' ACORN's past troubles and devised the video project on her own.

"Giles was paid for her internship at the National Journalism Center, which she got in part because she had attended for three years conferences held by the center's parent organization, the Young America's Foundation, a group focused on teen and twentysomething conservatives.

"But much of Giles' time was spent at an unpaid internship Rahn helped arrange at the Center for Freedom and Prosperity, a think tank focused on lowering taxes....

"Quinlan said he knew little about Giles' ACORN project until her departure breakfast at an IHOP on Aug. 7. 'Hannah did tell me about what she was doing. At the time everything was private and hush hush,' he said.

Was it a subject of discussion on August 6, 2009 at the Young America's Foundation National Conservative Student Conference in Washington, D.C., attended by Ms. Giles?

AP article:

"Giles' father, Doug — a pastor at the Miami-area Clash Church and a conservative commentator — wrote in a townhall.com column that he gave no money to the project and Fox paid only for hotels and airfare when his daughter and O'Keefe were interviewed.

"'Having my kid dress like a hooker and infiltrate such a place is not in my repertoire,' Doug Giles wrote. 'That was Hannah's baby from start to finish.'"

If no one helped O'Keefe and Ms. Giles "execute" the video project, then how were the scenes of O'Keefe and Ms, Giles together on a boat or on the National Mall shot. There's some great B roll shot on both coasts.

AP article:

"Breitbart said he learned of O'Keefe's work from Maura Flynn — the wife of biggovernment.com editor-in-chief Mike Flynn, and an assistant producer of the 2004 film 'Michael Moore Hates America.'

"Breitbart said that on Aug. 7, he greeted O'Keefe at his Los Angeles home, went into his basement office and watched the Baltimore footage on O'Keefe's laptop. He wanted to see more.

"After O'Keefe sent the Washington and San Bernardino videos, Breitbart concluded it was a natural fit to launch his new site."

That seems plusible, but O'Keefe told a somewhat different story, according to the Washington Post.

Darryl Fears and Carol D. Leonnig,"The $1,300 Mission to Fell ACORN: Duo in Sting Video Say Their Effort Was Independent" (September 18, 2009):

"O'Keefe insists that he and Giles's work was done independently and rejects liberal suggestions that the videos were bankrolled by conservative organizations. He does, however, acknowledge receiving help and advice from a conservative columnist and Web entrepreneur.

"When O'Keefe had filmed the first two videos — in the District and Baltimore — a friend urged him to share his project with Andrew Breitbart, a conservative Internet entrepreneur who had plans to launch an anti-liberal site called BigGovernment.com. Breitbart said he was skeptical after a June phone call with O'Keefe about what he had, but when the video was rolling in his basement office in Los Angeles in late July, Breitbart said, he gasped."

We now know that the Philadelphia and Baltimore stings were conducted on July 24 (the same day that the Issa report on ACORN was released), the Washington, D.C. sting was conducted on July 25, the New York sting was conducted on August 4, the Los Angeles and San Bernardino stings were conducted on August 17, and the San Diego sting was conducted on August 18.

If O'Keefe and Breitbart met in California in late July, then that was after the Philadelphia, Baltimore and Washington, D.C. stings but before the stings in New York and California.

The Washington Post article also stated:

"According to O'Keefe's account, ACORN was laid low by a stunt with a $1,300 budget, O'Keefe said....

"O'Keefe, who described himself as an investigative journalist with no formal training, said he bought his own $300 plane ticket to California to visit ACORN sites in Los Angeles, San Bernardino and San Diego.

"'We'll be providing receipts, documented proof that this was an independent piece of journalism done by myself and Hannah Giles,' he said."

That "documented proof" has yet to be posted at www.biggovernment.com, as promised. Like that mysterious missing page in the Kingsley report on ACORN, it's still not public.

© 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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