September 23, 2009

"ACORN Sues Hidden-Camera Filmmakers, Breitbart.com. It should be fun to do discovery on this one."

Glenn Reynolds is pretty sure ACORN is falling into a trap.

Yes, it's almost as if the real point of the videos was to provoke a lawsuit that would open ACORN to the legal intrusions of discovery. And of course, Giles and O'Keefe will get even more publicity, and it shouldn't be hard for them to attract aggressive legal counsel and a hefty litigation fund.

And here's Barney Frank on O'Reilly today:

62 comments:

Bruce Hayden said...

Should be interesting. The plaintiffs may have been actually listening to Breitbart, as they are apparently suing under the Md law and for infliction of emotional distress, or something like that, and notably not for defamation. Brietbart had said he was looking forward to a defamation suit by ACORN, where they could use discovery to dig up much more dirt. But this is much less likely now.

Breitbart himself is probably going to walk because of the news content of the videos. I think a strong case could (and probably will) be made that a state law that so burdens news gathering violates the 1st Amdt.

Should be quite interesting.

The Drill SGT said...

would a judge allow discovery on a subject that was at most tangential to the issues of fact? whether or not a tape was made and whether disclosure was made to all parties of said tape?

Maguro said...

So, ACORN is suing for the infliction of emotional distress on the two employees they just fired?

If the judge rules that O'Keefe's film was illegal, does that mean that the two employees can then sue ACORN for wrongful termination?

Very strange.

Laura(southernxyl) said...

O'Reilly.

Dang, SHUT UP.

I am reminded of why I cannot watch TV anymore.

Lem said...

"you have a congenital ability not to let people talk".

true

Bill O'Reilly is a pompous blowhard.

Dogwood said...

One comment at BigGovernment.com makes a distinction between a wiretap, i.e. interception, and recording conversations in person without all parties being aware or consenting to the recording.

Not sure the Maryland wiretap law is applicable in this case.

Any resident lawyer care to weigh in on the question?

Dogwood said...

I am reminded of why I cannot watch TV anymore.

Ditto.

I gave up on such shows about six years ago. Don't miss them.

Jason (the commenter) said...

The real trap is that ACORN stays in the news. If I were Breitbart I'd try to drag this out as long as possible.

Holmes said...

The tort of intentional infliction of emotional distress has four elements: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. Hyatt, 943 S.W.2d at 297. Although case law does not provide us with a precise definition of "extreme and outrageous," the test adopted by Missouri courts for actionable conduct is that the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

How does that claim survive summary judgement? While the conduct may be illegal in Maryland by statute, I would think recording sound is not outrageous conduct as a matter of law.

The Drill SGT said...

Dogwood,

They indicted Linda Tripp for taping Monica in person.

Maybe it is only used by Democratic AG's on opponents? :)

Anyway, the Law is called the MD Wiretap Law, but t applies to other forms beyond wire.

Mark said...

How does discovery work in instances of counter-suits? Because I believe Breitbart et. al. have options for their own lawsuits now that this can of worms has been opened.

knox said...

The real trap is that ACORN stays in the news.

Every interview I've heard with Breitbart, O'Keefe, or Giles they all hint that there's more to come. What could be worse??

edutcher said...

Barney doesn't mind a homosexual bordello run out of his house or the sweetheart conflicts of interest with his boyfriends that led to the banking meltdown last year, and, of course, wants to extend the CRA to credit unions and other types of financial institutions, but violation of the Maryland wiretap law? This cannot be borne, it's sacrosanct.

Next to this kind of arrogance, the Stamp Act was a joke!

miller said...

I sure hope ACORN doesn't throw Breitbart into that briar patch.

The Drill SGT said...

what would be fun is a Breitbart Qui Tam Lawsuit under the Federal False Claims Act

Revenant said...

the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

How does that claim survive summary judgement?

The community made the action in question illegal. Doesn't the willingness to throw people in prison for an activity pretty much spell out that the community considers the activity utterly intolerable?

The bigger question is how the actions can be considered extreme or outrageous. The hidden-camera news story thing is as old as the hills. 60 Minutes does them all the time.

Tully said...

The suit alleges a loss of reputation and seeks damages for same. Discovery should be really fun.

ACORN has a history of filing multi-million dollar lawsuits against anyone who stings them.

Lem said...

How come when NBC "To catch a predator" does similar things there is never a discussion of wiretap or anything of the kind?

RightWingNutter said...

I've got a sneaking suspicion that Breitbart should be able to find a 60 Minutes sting segment filmed in MD for which they were never prosecuted.

That in evidence would make a finding for the plaintiff less likely.

Mark said...

I also have the impression Breitbart's team knows ACORN better than ACORN knows itself. I mean, those kids walked in to those offices pretty damned sure that their story would work.

I bet this lawsuit was anticipated with not-at-all-suppressed chortling around the Breitbart offices....

Lance said...

From the AP story...
The lawsuit says the employees, Tonja Thompson and Shera Williams, suffered “extreme emotional distress.”

Was that before or after ACORN fired them?

wv: skinm (what Breitbart's been doing to ACORN)

Peter said...

Funny, small video cameras are on the dashboards of just about every Highway Patrol car in the country. along with more and mor city and county police and Sheriff's cars. I doubt many people are warned about "smile, you're on candid camera, either. And these videos are evidence, accepted in court, too. The field sobriety tests, for instance, or whether or not that fight was police brutality or an officer fighting for his/her life.

Mark said...

I honestly doubt that suffering extreme emotional distress after being shown publicly aiding and abetting underage sex slaving will be seen as a bad thing by the jury, but this is Baltimore we're talking about....

Mark said...

BTW, every time Obama catches an update on this story he must be thinking "Shut it! Shut it! Shut! It! Up!"

I'm thinking he needs to put in a call to Soros Real Soon Now.

Seven Machos said...

This is such a laugh. All the plaintiffs had to do was say the opposite of what they said and follow the law and there'd be no tape.

Hey, Althouse, given the federal funding issues here, could there be First Amendment state action issues? Is that a novel theory?

Fred4Pres said...

A great letter to Jonah Goldberg:

I hope all is well with you and yours.

I just wanted to give you a quick lawyer's take on the ACORN complaint against Breitbart, Giles, and O'Keffe. By way of background, I am [redacted] .... but would obviously like to keep my identity concealed if you should decide to pass this along to anyone.

First, ACORN filed in state court in Baltimore to get the home field advantage, but there is diversity jurisdiction and it will almost certainly be removed to federal court. That will likely be the defendants' first move. I'm not terribly familiar with that federal district, but it is surely more conservative than a Maryland state court. Moreover, it lies in the Fourth Circuit, which is one the most conservative in the country, so there is an excellent appellate "back stop" that will be a great advantage to the defendants.

Second, ACORN's legal theory is very, very thin. Their only cause of action is for a violation of the Maryland wiretapping statute. I'm certainly no expert on that statute, and I have no opinion as to whether Giles and O'Keffe violated it. But, for the sake of argument, let's assume they did. The violation of a criminal statute does not automatically give rise to civil liability in the absence of an express statutory provision that creates a private cause of action. I've litigated that issue on behalf of corporate defendants many, many times and my recollection is that I've never lost on it. I'm somewhat surprised that ACORN didn't include some other common law claims, such as intentional infliction of emotional distress or false light breach of privacy. But the problem with those claims is the vast, vast body of First Amendment law protecting media defendants (which surely includes Breitbart, Giles, and O'Keffe here).

Third, with a little bit of careful thought, the defendants could plead some interesting counterclaims. The federal False Claims Act and RICO come to mind, and would be very interesting.

Fourth, even if the defendants don't plead any counterclaims, the scope of discovery against ACORN will be incredibly broad, as it almost always is in civil litigation. ACORN has far, far more to lose from what could come out during discovery than what they are asking for in this suit.

Fifth, it's sorta bizarre that the fired employees are joining in the suit with ACORN, the entity that fired them. That complicates just about every legal theory, and even has possible ethical complications for their attorneys. I'd have to think about the issue some more, but at first blush I think the defendants' attorneys might want to move to disqualify the ACORN attorneys from representing all three plaintiffs on the grounds that the fired employees have, essentially, wrongful discharge claims against ACORN. Even if the motion is unsuccessful, each of the plaintiffs will have to take a stand, very early on in the litigation, as to whether or not the firings were appropriate. None of them have any good answers to that question.

In short, Learned Hand once said that he feared a lawsuit more than death or taxes. With good lawyering from the defendants (which I'm sure their going to get), ACORN is about to find out what Hand meant. ACORN has very little to gain and a lot to lose.

Keep up the great work!

William said...

I have heard that ACORN first protested against the banks for not making loans to high risk customers. Then, come the foreclosure notices, they protested against the banks for making predatory loans. This level of cynicism seems almost mystical in its ability to transcend all ordinary values.

Dust Bunny Queen said...

I sure hope ACORN doesn't throw Breitbart into that briar patch

LOL!!

or as Barney Fwank would say...Wacist!

Nothing quite as good as the old tried and true strategies.

Beth said...

I have heard that ACORN first protested against the banks for not making loans to high risk customers.

That's not exactly correct; they protested redlining, which doesn't mean refusing loans to specific customers based on their risks as individuals, but denying loans to individuals or businesses based on their location.

Seven Machos said...

...Which would have been fine and noble, Beth, but the fact that they then turned around and sued banks for no longer redlining is the very height of ass clownery.

This is not a serious organization.

Susan said...

It's a Cat Fud trap! Oh please, oh please!

A Lawyer Mom's Musings said...

Bill O'Reilly is a great questioner, no question about that. But once in a while, it would occasionally pay for him to listen to the answers and let the guest keep on talking.

A slack rope can be useful, for a time.

Barney Frank was about to launch into a diatribe about the evils of favoring one group over another with federal funding. But O'Reilly cut him off. What a fertile field this would have been, if O'Reilly had allowed Frank another few seconds to opine.

P.S. -- did anyone notice that last night, Hannity's British, conservative Chuck Todd-counterpart said Maurice Greenburg was CEO of AIG? Fox needs to tighten things up a bit if they want to stay credible.

Marshal said...

"they protested redlining,"

This is not correct. They protested that banks approved a lower percentage of minority loan applicants and called it redlining since that practice is illegal.

Der Hahn said...

Lots of good comments on this Volokh thread.

They point out some issues that Jonah's emailer got wrong or incomplete (The MD law does allow civil suits, for one) and also discuss what makes some undercovering taping legal (MD requires both parties to consent, some states allow taping with only one party consenting).

There are also interesting comments on whether the conversations were 'private' under the MD law and legal precedents.

Dust Bunny Queen said...

That's not exactly correct; they protested redlining, which doesn't mean refusing loans to specific customers based on their risks as individuals, but denying loans to individuals or businesses based on their location.

I'm not going to deny that banks didn't make loans in certain geographic areas in proportion to other areas. They did and this is a fact.

BUT....the reason that they didn't make those loans,was because the area consisted of poor credit risks, bad collateral and a sure loss of money for the Bank AND their shareholders. This is also a fact.!!!

This is good business practice. You don't give money to people who can't/won't pay you back

When they started up with the CRA bullshit, I was FORCED to make crappy loans that I knew were bad. Loans that went against my record as a commercial lender and might prevent me from future promotions and that I knew were just plain wrong. Lenders are graded on the quality of their loan portfolios.

Banks were forced to do so because if they didn't the regulators could prevent the bank from expanding or getting other revenues.

ACORN is the driving force behind our current economic melt down.

They can burn in Hell and it wouldn't be enough.

Not that I'm personally involved or anything. :-P

Penny said...

O'Reilly does a lot of interrupting, but Barney Frank has a habit of "blustering" in order to give himself time to think about his response. Interesting technique actually if you don't think fast on your feet.

Penny said...

Regardless how this lawsuit turns out, the damage is done. It's similar to an attorney asking a question in court, which really should not have been asked, and the opposing attorney objects and the judge sustains, saying strike that from the record. Juries can't forget what they heard, and the American public will not soon forget what they saw on those tapes.

Beth said...

but the fact that they then turned around and sued banks for no longer redlining is the very height of ass clownery.\

Except that "not redlining" is not the same as "making predatory loans." That's not a defense of ACORN - I'm very familiar with any number of crap going on in ACORN - it's to point out that it's a false dilemma to claim that banks can only either make loans to people who can't pay them, or to discriminate against people whose income isn't reflected by their address.

Seven Machos said...

Come on, Beth. The substance of the lawsuits were:

(1) Banks aren't lending to lower-income people. It's not fair.

(2) Banks are lending to low-income people and they can't pay. It's not fair.

You cannot legislate nor adjudicate against economic reality and, at the end of the day, that's ACORN in a nutshell.

Beth said...

Seven, I don't know about the specific lawsuits, so if you've read them, I'll take your word. I am familiar with some of the local actions, aimed at redlining in neighborhoods with which I'm familiar.

chuck b. said...

ACORN has feelings and emotions?

Seven Machos said...

I've got no problem with lawsuits against redlining. Bully for those lawsuits. There's a social need for them and redlining is unquestionably not fair.

However, you cannot sue for that and then turn around and sue because the banks did what you sued for. Such contradictory action is also unquestionably not fair and in nearly evil faith.

chuck b. said...

I think the Medal of Honor ceremony scheduling was verrrrry conveeenieeennnnt.

Beth said...

We're not disagreeing - the last time anyone I know well worked at ACORN was in the late '80s, and we've talked about what they felt was done well and the many, many problems over the years. This possibly predates the suits you're talking about.

Contradictions aren't new to ACORN; they advocate for a higher minimum wage and treat their street-level employees - mostly college-age students - like dirt. The most personal slap is the Rathke embezzlement, though; even people who were already aware of and disgusted by the lack of transparency in ACORN's finances were amazed by that one. In condemning ACORN overall, it's worth keeping in mind that people within the organization are the ones who have largely initiated the probes into their finances, and who exposed Wade Rathke covering up Dale's theft.

Seven Machos said...

Okay. As long as we aren't disagreeing. I feel that a sort of cosmic hurdle has been cleared whenever we agree, Beth, and I look forward to it.

Beth said...

Ha! It's an event less rare than Haley's comet, but still rare enough to anticipate. That can't help but be good.

M. Simon said...

Ann A.,

Rumor has it that you voted for the ACORN lawyer in the 2008 Presidential election.

Say it isn't so. Or on another tack:

Buyer's remorse yet?

BTW - blogged it at PaC and gave you a link.

djman114 said...

I gave up on BOR a long time ago. The guy cannot cease being an overbearing interruptor, sort of like an old woman on steroids.

Hoosier Daddy said...

It would be helpful if Bawney Fwank had subtitles for those of us who have trouble understanding other languages than English.

This guy's picture should be in the dictionary next to the word 'buffoon'.

kentuckyliz said...

I think it's sad that the severe emotional distress wasn't caused by the fact that these women became so morally numb as to not give a shadow of a shit about abducting and transporting young girls to foreign countries for prostitution slavery.

Being taped in a moment showing this moral numbness is nothing compared to the true tragedy of their utter evil.

Hoosier Daddy said...

I gave up on BOR a long time ago. The guy cannot cease being an overbearing interruptor, sort of like an old woman on steroids.

I don't mind it because personally I am tired of politicians being asked simple questions and in response I get a Gettysburg Address length wandering, rambling non-answer.

O'Reilly suffers the same intolerance I do with people who simply like to listen to themselves talk rather than actually answer the fooking question. Its like when he showed Fwank the video of him saying that there is nothing wrong with Fannie and Freddie and Fwank says I never said that!

I mean what kind of chutzpuh does it take to flat out lie like that?

Skyler said...

If they hit you, hit them back harder. That's the motto of B. Hussein and his ilk, including his primary vote creators, ACORN.

It doesn't matter if there is discovery against ACORN. ACORN is about to be defunded. But this is meaningless. The federal funds, our money, used by ACORN to commit voter fraud, and otherwise get more votes for democrats will be transferred to another organization. I wouldn't be surprised to see the same people in this new organization. In fact, I predict there will be little less than a name change.

The purpose of the lawsuit isn't to get money from neo-journalists. These young people do not have a lot of money. They want to ruin them and stop them from making more films by wasting their time. In the meantime, you and I will be paying for ACORN's lawyers.

jms said...

It seems to me that ACORN training videos and videotapes of training sessions are certainly fair subject matter for discovery. That might be a promising line of investigation ...

tweell said...

Bringing suit in Maryland would have to be so that the extensive laws against recording anyone without their agreement would apply. Unfortunately, ACORN is not legal in Maryland, they didn't pay their fees. This makes it much more probable that the suit gets moved to the federal court, in my uninformed opinion.

Joe said...

Has a defense fund been set up and are they selling tickets yet to the show?

Beth said...

If they hit you, hit them back harder. That's the motto of B. Hussein ...

That's a good motto for anyone who gets hit.

sonicfrog said...

Look, the tragic thing about this whole incident is that, when a year ago, ACORN was revealed to have covered up the embezzlement, by the founder's brother, of almost a million dollars ten years ago, no one sneezed. When a few underlings are caught giving Charles Rangel type tax advise to a fake pimp and his hooker, all hell breaks loose. Maybe it is all about the sex.

montana urban legend said...

Fuck the law! We've got spirit!

We got spirit! Yes we do! We got spirit! How about.. aww, hell.

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