Michael Gaynor
October 29, 2009
Daughter and dad "pit bulls" Hannah Giles and Doug Giles and surreptitious recording law
By Michael Gaynor

Doug succeeded splendidly with Ms. Giles. There's no doubt that she did what she thought was right, as she had been taught by her dad (and surely mom too).

The notion that "pit bulls" are unattractive is nonsense.

Former Alaska governor and 2008 Republican vice presidential nominee Sarah Palin and ACORN corruption exposer Hannah Giles have proved that.

Unfortunately, an attractive female conservative "pit bull" who appears on the public radar screen immediately draws fire from the secular extremist Far Left.

Ms. Palin proved that last year too.

BUT...Ms. Palin inspired by standing up to the scurrilous and baseless attacks and this year Hannah Giles put herself in the line of fire for God and country.

The sting conducted against ACORN last summer by Ms. Giles, 20, and James O'Keefe, 25, drew baseless attacks as well as inspired many millions.

Doug Giles, father of Ms. Giles, modestly rebutted some of the lies in "No, It Wasn't My Idea for Hannah Giles to Dress Like a Hooker and Infiltrate ACORN" (September 19, 2009).

Doug wrote: "[Hannah] Giles' radical, ultra-conservative Christian dad put her up to it. I believe that's how someone on one of those unwatched news shows has been bending it. Well, I can tell you as her dad that I did not. As much as me no likey the nefarious underpinnings and corrupt acts of ACORN, having my kid dress like a hooker and infiltrate such a place is not in my repertoire. That was Hannah's baby from start to finish. I simply told her to be careful because we all know how dangerous sweet community organizers can be."

I don't know how much father and daughter talked about the sting, but a review of Doug's archives at Townhall.com shows that while he may not have suggested particulars of the sting, he surely inspired his daring, delightful daughter to conduct it.

Doug's attitude toward civil disobedience may explain why the sting was conducted in jurisdictions where recording a private conversations without the consent of all parties is a felony as well as jurisdictions where a party can legally record without the consent of any other party.

Doug, in "Pastors, Priests, and Politics Part II" (July 24, 2001) (http://townhall.com/columnists/DougGiles/2004/07/24/pastors,_priests,_and_politics__part_ii): "...we are called to obey God rather than men, and God has called his leaders to be involved in civic affairs, and to represent Christ and his word in all areas of society. And that entails expounding the biblical worldview all the time, including election time. Sometimes you have to rebel against unrighteous, limiting laws. There's nothing wrong with proper civil disobedience when the need arises, especially if the government tries to stifle your scriptural rights and obligations."

Unfortunately, those "limiting laws" on surreptitious recording (of which I disapprove) have been upheld as constitutional.

As father and pastor, Doug has passionately preached activism as well as conservative values.

Doug, in "Conservatives with Cojones" (March 20, 2004)http://townhall.com/columnists/DougGiles/2004/03/20/conservatives_with_cojones?page=full&comments=true:

"Let's face it: we need committed, conservative Americans with cojones. Who cares about skin color: red, yellow, black, brown, or white? You and I must stand up for what we believe. We must be seen and heard within the public square. And we must keep at it, relentlessly.

"That is, if we don't want the greatest republic to become...a banana republic."

Doug's a "pit bull" who persistently promotes the Pit Bull Attitude on religious grounds and fathered a superb "pit bull" in Ms. Giles.

Doug, in "Do You Have a Pit Bull Attitude?" (November 20, 2004) (http://townhall.com/columnists/DougGiles/2004/11/20/do_you_have_a_pit_bull_attitude):

"God intended His believers...to be spiritual warriors, to be pit bulls who smash demonic strongholds, stand for truth and bring life, light and healing to this great planet.

"As I see it, a Christian without a Pit Bull Attitude is a Poodle Christian. What a terrible fate, to be a poodle Christian. A pit bull Christian is a hero and a champion, braver than the bravest, one who laughs at difficulties, dangers, and death.

"The poodle Christian runs to his air-conditioned doghouse when it starts to get 'hot in the kitchen.' Sweetie poodle Christians fear they might lose the curl in their hair if they get too close to the flame ...too close to the front of the major spiritual and moral battles of the day. Therefore, the poodle Christians choose to hang out within the stained-glass-tinted windows of the Church instead of going out into the real world to confront secular monsters. Yes, the call to battle always seems to find them at covered-dish dinners.

"Poodle Christians say they love God, but they deny Him with their actions. In fact, when this kind of Christian hears the call of duty, it's amazing how often he gets a tummy ache. Poodle Christians hear the Word of God on Sunday, but don't follow it. They don't like to get dirty doing the practical, tough work of obeying the scripture....

"It's time to put down our pusillanimous poodle proclivities and start taking onboard a pitbull-esque tenacity...you know, like the Christians of old, like Peter, like Paul, like Timothy, and Stephen. We need a breed of believers with the courage to stand proudly for their faith in God and their place in society."

"DAVID was a teenage pit bull who didn't want to just watch a fight. He wanted to fight the battle, and he ran to the front. He did what all the mature, 'sensible' soldiers couldn?t do: he killed Goliath. He said he would kill the Philistine, and you know what? He killed the Philistine, single-handedly. David was a crazy, audacious pit bull all his life."

On Christmas Day 2004, Doug posted his Pit Bull and Poodle Test.

Doug, in "The Pit Bull and Poodle Test" (December 25, 2004) (http://townhall.com/columnists/DougGiles/2004/12/25/the_pit_bull_and_poodle_test?page=full&comments=true):

"I have prepared The Pit Bull and Poodle Test to help us judge and adjust our attitudes. So if last year sucked because we were acting like poodles, this next year won't because we will have taken on a Pit Bull Attitude. Are you ready for this?

Pit Bull Test 1. Do you have a definite purpose backed up by a burning desire to see it fulfilled? 2. Are you continuously in action working on your plan? 3. Is your mind closed towards all negative and discouraging influences from foes, 'friends,' dysfunctional parents, music, books, tapes, T.V. etc? 4. Do you hang out with people who are greater than you in what they have accomplished and who utterly challenge you to excellence? 5. Are you self-reliant and independent? 6. Do you take responsibility for your life, both failures and successes? 7. Do you hate it when you waste time? 8. Do you look at life as a game to be played and played like a champion? 9. Have you become impervious to the criticisms of pusillanimous men and women? 10. Do you boldly face your fears with faith and move towards your goals?

Poodle Test 1. Do you often complain about your life? 2. Do you avoid association with people who have accomplished more than you? 3. Does your life seem futile and your future hopeless? 4. Do you often feel self-pity? 5. Are you envious of those who excel you? 6. Do you worry a lot? 7. Are you overly cautious and negative? 8. Are you indifferent and lacking in ambition and enthusiasm? 9. Do you constantly use excuses and alibis to explain why you haven't accomplished anything? 10. Do you often fantasize about lying on the front passenger seat of a Cadillac with a pink ribbon in your hair with your favorite chew toy?"

"You'll find, Ms. Poodle, as you begin the transformation into a pit bull that you are no longer timid, mousy or backward looking. Instead, you're audacious and courageous and not afraid to confront obstacles that hold you back from what you want from life.

"Have a Pit Bull New Year!"

There's no doubt the Doug wanted pit bulls not poodles as daughters.

About a year later, Doug substituted 'bulldog" for "pit bull," but his attitude remained the same and he specifically advocated hitting "[o]utrageous, hard-to-reach targets."

Doug, in "Have a Bulldog Attitude New Year" (December 17, 2005) (http://townhall.com/columnists/DougGiles/2005/12/17/have_a_bulldog_attitude_new_year?page=2):

"Set Killer Goals. Outrageous, hard-to-reach targets will motivate you far more than reasonable ones. Never pick a small fight. In the Bible, David challenged and killed Goliath, not his ugly and skinny bearded sister. What challenge is it for a Bulldog to whip a Rat Terrier? If you can do what you're currently doing with your eyes closed or snackered on tequila, well then, you might need a fresh challenge if you want '06 to eclipse '05. You've got to demand of yourself that which stretches you like a water-ski rope with a fat woman on the other end of it. "Don't live your life by that which is reachable and feasible to the natural mind, nor by what other people are doing. You've got to go for the 'Mission Impossible.' Go for that which incites the timorous poodle's ridicule and use their derision to spur you on into greatness. Your Bulldog success will be the sweetest revenge."

Earlier in 2005, Doug posted on parental responsibility.

Doug, in "Raising pit bull children" (February 12, 2005)(http://townhall.com/columnists/DougGiles/2005/02/12/raising_pit_bull_children?page=full&comments=true):

"It seems that excellent and courageous kids are getting harder and harder to find nowadays. More and more, we are seeing less and less of the scrappy little Pit Bull Braveheart's in our schoolyards and playgrounds.

"One reason we're seeing a decline of kids with excellent and courageous Pit Bull attitudes is because Pit Bull adults are marrying folks who aren't Pit Bulls. Some Pit Bulls are actually marrying noisy narcissistic Poodles!

"For a Pit Bull to marry anything other than a Pit Bull is a stupid mistake. These bizarre unions give birth to offspring that doesn't carry the deep gameness that a solid union of like animals would, so we end up with diluted, weaker specimens because of the mixtures of the different attitudes."

"It's not enough to give birth to a little bulldog, Pit Bull Mom and Dad; you must give it constant instruction and love. If you don't love and discipline your kids, you seriously decrease their chances of being champions in the arena.

"Raising quality Pit Bull kids is the most important job on the planet. We cannot neglect our Pit Bull kids because of our petty selfishness. If we want a better world then we must train our charges well.

"Here are six musts for raising quality Pit Bull children:

1. A Pit Bull sire and dam must love their pups. I'm not just talking about emotionally, but sacrificially. Make sure you hang out with your kids more than you do your yahoo friends. Take them hunting and fishing or wherever you like to go. Get them into sports or something else constructive. Get your and your family's butt up off the couch and into life! Get involved in their world, and let them be involved in yours. Communicate with them. Give them more than just cash and a casa. Give them your time and attention.

2. Bless your Pit Bull pups. Continually speak that which inspires them. Help your pups realize their purpose and destiny. Give them hope. Teach them primary greatness such as integrity, character, faith, passion and tenacity.

Mom and Dad, your little pup is a blank canvas upon which you can paint a Monet or a mess...I suggest the former.

3. Pray for your pups. There is incredible power in prayer. This is not a light thing. All the great Biblical parents prayed for their pups and subsequently produced a greater little bulldog. Invoke God's help for your little ones' well being. Pray for their spiritual, mental, physical and financial prosperity. PRAY AGAINST ALL TEMPTATIONS FOR THEM TO BE A POODLE. Raising Pit Bulls is serious business, and prayer figures greatly in quality formation. Also, find a good Pit Bull-type church.

4. Discipline your bulldogs. Pit Bulls need discipline. They need a strong chain or cable system. If not, they are highly likely to get into trouble. Never beat your pup or verbally abuse it. That's stupid, and if you do that, you need to be put down. It's okay to be very firm, but not in anger rather in principle, with tough love. Make sure all your discipline is redemptive, not punitive.

5. Give your puppies instruction. Discipline not only entails correction, but also instruction. Don't just blather on about what is wrong and focus on the negative; show them what's right. Walk the talk, Pit Bull Mom and Dad.

"You can't expect them not to be Poodles when they see you being one. Pit Bull see, Pit Bull do. Instruction is caught, not taught. The impartation of instruction comes via the avenue of direct contact and observation. If you don't want your pups to be Boy George-Poodle freaks, then you must hang out with them. Read them books that inspire them to independent thinking, action and leadership.

6. Be an available source of supply for your puppies' needs. Spiritually, socially, physically, financially and mentally...be their provider, protector and hero. Make sure you have an arsenal of wisdom, tools and whatever else they need to help them as they prepare to scratch in the pit of life. There will come a time when this particular stage will phase out, but make sure you're there during this crucial aspect of development.

"My ClashPoint is this: your Pit Bull son or daughter has unlimited potential for greatness.

"The purpose of your leadership is not to have them serve you, but rather you them. Help them...inspire them to discover, develop and become who God has destined them to be.

"Provide every opportunity possible for them to find, follow and finish their unique courses in life.

"Set them up, and then set them free to be great Pit Bulls.

"And finally, realize that just because you're a Pit Bull doesn't mean you're a success...not until you have raised a greater successor...your pups. Make sure you are there to cause your kids to excel. Make them independent, powerful and eternal scrappers for that which is just and good."

Doug succeeded splendidly with Ms. Giles. There's no doubt that she did what she thought was right, as she had been taught by her dad (and surely mom too, Ms. Giles having been homeschooled).

On September 24, 2009, Doug explained on his radio program (http://www.clashradio.com/audio.html) that his Christian world view informs his legal view and that the state laws making surreptitious recording of private conversations without the consent of all parties felonious should not be applicable in the circumstances, because the recordings surreptitiously made by Ms. Giles and O'Keefe reveal the willingness of ACORN employees to facilitate prostitution, child prostitution, child abuse, illegal immigration, tax fraud and bank fraud.

Prosecutors in all-party-consent states may decide not to prosecute in the exercise of their prosecutorial discretion and I hope they do, especially in Ms. Giles' case.

But prosecutors usually do not give a pass to persons who violate criminal law in the hope of uncovering evidence of much greater wrongdoing.

Leon H. Wolf, in "Watch me Get the ACORN Lawsuit Dismissed in 15 Minutes (or Less)" (September 23, 2009) (http://www.redstate.com/leon_h_wolf/2009/09/23/watch-me-get-the-acorn-lawsuit-dismissed-in-15-minutes-or-less/) is sure the ACORN's civil suit based on the sting conducted at ACORN's Baltimore office is without merit.

Wolf:

"I will keep this simple. Here is the text of the suit, which is brought under the MD Wiretap Act. The suit alleges that Andrew Breitbart, working in concert with O'Keefe and Giles, intercepted an 'oral communication' using an electronic device, which would indeed be a violation of the act. The problem, however, is that the statute specifically defines 'oral communication' in section 10-401(2)(i) as: 'any conversation or words spoken to or by any person in private conversation.'

"What this means, as established by the clear text of the statute (and Maryland caselaw, including Fearnow v. Chesapeake & Potomac Tel. Co. of Maryland, 342 Md. 363 (Md. 1996)) is that at least one of the parties to the conversation must have had a reasonable expectation of privacy in the conversation. In other words, if someone stands up in the town square and shouts out loud and someone else records it, that is not a violation of the act."The problem for ACORN is that, as a matter of law, the employees at ACORN had no reasonable expectation of privacy in what they said to members of the public who entered their offices. As made clear by Katz v. United States and its progeny (made applicable specifically to the Maryland Wiretap Act by cases such as Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997)), 'What a person exposes knowingly to the public, even in his own home or office, is not a subject of Fourth Amendment protection.'

"Get that? The conversations in question were knowingly exposed in a place of business to two customers who walked in off the streets. There is and can be absolutely no expectation of privacy for the ACORN employees in question. As such, the conversations are not 'private conversations' under the Maryland Wiretap Act as a matter of law. I found all this in a matter of 15 minutes on Lexis. I'm sure another 15 (which I don't have) will find numerous directly applicable precedents under Katz that are completely factually indistinguishable from the present case. In other words, this case is so totally without legal merit the very filing of it is almost sanctionable. And putting 'they had a reasonable expectation of privacy' in the complaint is not enough for this claim to survive summary dismissal; the court does not have to accept conclusory statements and legal conclusions."

Unfortunately, even if Wolf's conclusion based on his quick review of Maryland law is correct, other all-party-consent states in which there was surreptitious recording may afford more expansive protection of privacy than Wolf believes Maryland affords and the problem for the potential criminal defendants is that the issue will not be whether the surreptitious recording that resulted in the ACORN videos violated the Fourth Amendment.

In Katz v. United States, 389 U.S. 347 (1967), Katz had been convicted of transmitting wagering information by telephone across state lines in violation of a federal statute. Evidence of Katz's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals for the Ninth Circuit affirmed the conviction, finding that there was no Fourth Amendment violation since there was "no physical entrance into the area occupied by" petitioner.

The United States Supreme Court reversed, holding that the Government's eavesdropping activities violated the privacy upon which Katz justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment, because the Fourth Amendment governs not only the seizure of tangible items but also the recording of oral statements and protects people rather than places.

The Supreme Court explained that the Fourth Amendment not only "protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all," and "the protection of a person's general right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual States."

The Court further explained that (1) the issue was NOT whether the phone booth was a "constitutionally protected area"; (2) "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection"; and (3) "what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

In rejecting the Government's argument, the Court stated: "The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."

There is no doubt that the surreptitious recording involved in the ACORN videos did not violate the Fourth Amendment, but there appear to be bonafide questions as to whether the surreptitious recording in Maryland, California and Pennsylvania violated the criminal law in those states. (And, if there was surreptitious recording in Florida, another all-party-consent state, whether it was lawful there would be a question for Florida courts.)

As a person who both studied the law as it is and believes that the consent of one party to the recording of a conversation should suffice, I concurred with former California Attorney General and now Congressman Dan Lundgren that (1) "[u]nfortunately 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" and (2) "if there were ever a case for the exercise of prosecutorial discretion [not to prosecute], this would be it."

A trial court has held that a communication protected by the Pennsylvania law is one in which there is an expectation that it will not be recorded by any electronic device, rather than one in which there is a general expectation of privacy. Thus, the fact that a participant may believe he will have to reveal the contents of a communication, or that other parties may repeat the contents, does not necessarily mean that he would have expected that it would be recorded, and it is the expectation that the communication would not be recorded that triggers the wiretapping law's protections. Pennsylvania v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996), petition for appeal denied, 692 A.2d 564 (Pa. 1997).

Prosecutors in all-party-consent states may decide not to prosecute in the exercise of their prosecutorial discretion and I hope they do, especially in Ms. Giles' case.

But in general prosecutors do not give a pass to persons who violate criminal law in the hope of uncovering evidence of much greater wrongdoing.

The legal situation is not so simple.

© 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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