Michael Gaynor
Why no "Pimp and Pro" ACORN sting surreptitious recording prosecutions?
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By Michael Gaynor
April 27, 2010

Twelve states still prohibit surreptitious recording and the United States Supreme Court left no doubt that such prohibition is constitutional. So are prosecuting authorities in Pennsylvania, Maryland and California not prosecuting for legitimate legal reasons (Maryland's statute expressly covers a person who "procure[s] any other person to intercept," while California's statute defines person to include "an individual, business association, partnership, corporation, limited liability company, or other legal entity" but does not mention procuring)...or for political purposes (such as discouraging public attention from focusing on ACORN and perhaps its long relationship with President Obama and its relationship with his presidential campaign in 2007 and 2008)?

Are you familiar with the Sherlock Holmes story about a racehorse stolen from a barn at night while the barn was guarded by a dog and this enlightening colloquy between Inspector Gregory of Scotland Yard and Holmes?

Inspector Gregory: "Is there any other point to which you would wish to draw my attention?"

Holmes: "To the curious incident of the dog in the night-time."

Gregory: "The dog did nothing in the night-time."

Holmes: "That was the curious incident."

From the fact that the dog did not bark, Holmes deduced that the dog knew the horse thief."

It is curious that none of the surreptitious recordings for the "Pimp and Pro" ACORN sting has been the subject of criminal prosecution.

Why not?

With respect to the surreptitious recordings of conversations in Washington, D.C. and New York, the answer is obvious: they were lawfully made, since any party to the conversation is entitled to record it without the consent of anyone else in those jurisdictions.

But the answer with respect to the surreptitious recordings made in Pennsylvania, Maryland and California is not obvious, because those states prohibit the surreptitious recording of a conversation without the consent of all parties and such prohibition clearly is constitutional. In Bartnicki v. Vopper, 532 U.S. 514 (2001), which involved both the federal and Pennsylvania laws against surreptitious recording, the 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.

That holding means that if James O'Keefe and/or Hannah Giles had done any illegal surreptitious recording, Andrew Breitbart, Big Government and Fox News were free to use it, if they had not been involved in the illegal surreptitious recording.

But, footnote 19 to the majority opinion in Bartnicki unambiguously 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)."

In Bartnicki, then Chief Justice Rehnquist and Justices Scalia and Thomas dissented, but NOT because they viewed the laws prohibiting surreptitious recording as unconstitutional. Rather, they believed that the laws prohibiting disclosure of surreptitious recording were constitutional too!

Dissenting opinion: "Here, Congress and the Pennsylvania Legislature have acted '"without reference to the content of the regulated speech.'''.... 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'. ....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.... As the concerns motivating strict scrutiny are absent, these content-neutral restrictions upon speech need pass only intermediate scrutiny."

Irony: by respecting the prerogatives of Congress and the States, these so-called "conservative" Justices would have afforded greater privacy protection than their colleagues did.

Dissenting opinion:

"In an attempt to prevent some of the most egregious violations of privacy, the United States, the District of Columbia, and 40 States have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications. The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of 'public concern,' an amorphous concept that the Court does not even attempt to define. But the Court's decision diminishes, rather than enhances, the purposes of the First Amendment: chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day."

"The Constitution should not protect the involuntary broadcast of personal conversations. Even where the communications involve public figures or concern public matters, the conversations are nonetheless private and worthy of protection. Although public persons may have forgone the right to live their lives screened from public scrutiny in some areas, it does not and should not follow that they also have abandoned their right to have a private conversation without fear of it being intentionally intercepted and knowingly disclosed."

There has been no explanation by either Pennsylvania or Maryland why it has not prosecuted anyone with respect to surreptitious recording at local ACORN offices.

On April 1, 2010, California Attorney General (and Democrat gubernatorial candidate) Jerry Brown issued a report on the surreptitious recording at ACORN offices in Los Angeles, San Bernardino and San Diego that explained why James O'Keefe and Hannah Giles have not been prosecuted in California for surreptitious recording: although the facts "strongly suggest" prosecutable activity, he had traded immunity for the unedited tapes. http://ag.ca.gov/cms_attachments/press/pdfs/n1888_acorn_report.pdf#xml=http://search.doj.ca.gov:8004/AGSearch/isysquery/fd553f9c-1531-4248-81e1-fc7d83f787ae/1/hilite/:

"O'Keefe and Giles agreed to produce the full recordings if the Attorney General agreed not to prosecute them for violations of California's privacy laws. This Office determined that the fastest and most efficient means to comply with the Governor's request was to agree not to prosecute."

"Liability Under California Law for Making Covert Recording of Confidential Conversation

"California law generally prohibits the recording of confidential communications without the consent of all participants where there is an objectively reasonable expectation that the conversation is not being overheard or recorded. to meet the Governor's request to investigate ACORN, this Office needed the complete, unedited video and audio recordings made by O'Keefe and Giles, who are not in California. O'Keefe and Giles agreed to produce the full recordings if the Attorney General agreed not to prosecute them for violations of California's privacy laws. This Office determined that the fastest and most efficient means to comply with the Governor's request was to agree not to prosecute.

"In light of this limited grant of immunity, we did not focus on the circumstances surrounding the conversations to determine if the recordings themselves violated California law. Nevertheless, we take this opportunity to note the legal principles governing clandestine recording of conversations in California. Whether a recording of a conversation is unlawful depends on the circumstances of the conversation and the expectations of the parties. In 1967, the California legislature adopted the Invasion of Privacy Act, codified at penal Law sections 630 through 638. The Act is designed to protect the right of privacy by requiring the consent of all parties before a confidential conversation is recorded. (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768-769 (Flanagan.) The eavesdropping and recording provision, section 632, provides that any person who intentionally and without consent of all parties to a confidential communication records such conversation is guilty of an alternate felony/misdemeanor. (Penal Code, 632(a).) A private right of action also exists for any person injured by a violation of the Act. (Id., 637.2) Section 632 defines confidential communication to include 'any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.' (Id., 632(c).) A communication made in a public place or 'in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded' does not qualify as a confidential communication under the statute. (Id.) Confidentiality 'appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation.' (Flanagan, 27 Cal. 4th at pp. 772-773.) The fact that the subject matter of the conversation might later be discussed with a third party has no bearing on a finding of confidentiality under the statute. (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929.) Although the Act contains exemptions for particular individuals or circumstances, no exemption exists for filmmakers, the media or journalists.

"An application of these principles to the facts presented here strongly suggests that O'Keefe and Giles[] violated state privacy laws and provides fair warning to them and others that this type of activity can be prosecuted in California."

The California Attorney General's office advised me that immunity was given only to O'Keefe and Giles and the report does not explain whether prosecution of others connected to the sting was or is contemplated.

A person identified as "Ryan" appeared in one of California tapes.

Andrew Breitbart announced that he has an adviser.

Breitbart (http://biggovernment.com/abreitbart/2009/09/20/planting-the-seeds-the-politicized-art-behind-the-acorn-plan/#more-5858):

"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....

"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."

"If Mr. O'Keefe dumped the videos on YouTube, the political powers would have killed the expose before it got traction. I half-joked that he should secretly tape pitching the major television networks exclusive use of his videos for their nightly news broadcasts. But a simpler, less controversial method proved as fruitful.

"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.

"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 Bernardino 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."

Those California ACORN videos were surreptitiously recorded AFTER Breitbart strategized with O'Keefe and Breitbart listed the San Bernardino and San Diego videos as part of the strategy that he and O'Keefe had agreed upon and even claimed to have half-joked to O'Keefe about secretly taping the television networks. Breitbart was not present, much less physically taping, during the visits to the California ACORN offices, but neither was John Stossel present when alleged surreptitious recordings for which he was charged in Maryland allegedly were made.

(Coincidentally, on the day that the "Pimp and Pro" ACORN sting broke and Fox News began covering it (September 10, 2010), Fox announced that Stossel had signed a multi-year deal with FOX Business Network and the FOX News Channel (www.foxbusiness.com/story/markets/industries/media/john-stossel-join-fox-business-network/comments/#commentPaginationTop).)

In 1996, when Stossel was with ABC News, Maryland charged Stossel and four others with alleged surreptitious recording and both The New York Times and The Daily News reported the story.

The New York Times (http://www.nytimes.com/1996/10/23/arts/five-from-abc-charged-in-case-of-secret-taping.html?scp=2&sq=%22John%20Stossel%22%20Maryland&st=cse):

"John Stossel, an ABC News reporter, has been charged with illegally tape recording a Baltimore doctor without her permission for a report he was preparing...."

The Daily News (http://www.nydailynews.com/archives/news/1996/10/19/1996-10-19_charge_of_illegal_taping_sna.html):

"ABC correspondent John Stossel and four others have been charged with illegally tape recording a Baltimore medical expert, an accusation that could get them five years in prison.

"The five people are charged with illegally taping a meeting with Dr. Grace Ziem, an expert in multiple chemical sensitivity, for a report on 'junk science.'

"Maryland is one of 12 states that bar tape recording a conversation without the permission of both parties.

"ABC News said the accusations are groundless."

The charges were dropped, because the journalistic privilege was invoked by the two witnesses qhom the prosecution planned to call to prove the charges.

After the "Pimp and Pro" ACORN sting broke, one of those witnesses, David Zurawik, a tv critic, wrote about the Stossel case.

Zurawik:

"Amid all the conflicting reports on cable TV and the Internet as to whether or not the filmmakers who secretly taped two ACORN employees in Baltimore violated any law, let me add one historical fact that might bring a bit of clarity and context to the discussion.

"The Baltimore State's Attorney's office has brought felony charges in the past for what was alleged to be essentially the same act as that committed by James O'Keefe and Hannah Giles, the two who did the secret taping at ACORN.

"And one of the five persons whom the state's attorney's office charged in the past was John Stossel, the TV news journalist who this week made headlines for another reason by leaving ABC News to join the Fox News Channel.

"I know this because I was one of two journalists who was believed to have heard Stossel allegedly admit that ABC News had violated the secret taping statute and was subpoened to testify at the trial....

".... I have to admit that I was surprised that the Stossel case had not come to light during the last three days of online heat as the videotape shot by O'Keefe and Giles played on the Fox News Channel and across the Internet."

Zurawik continued:

"... Dr. Ziem was...approached by Stossel about being interviewed for a show about 'debates in medicine.' She agreed, but became suspicious after 'being tipped off by a colleague that Mr. Stossel has said he was doing a special on "junk science"...'

"Dr. Ziem agreed to be meet Stossel in a Baltimore hotel, but instead of a willing interview subject, what Stossel and his crew found was an assistant of Dr. Ziem's and two reporters he had contacted to witness what Stossel was up to. It was intended to be a reverse sting, if you will. The other reporter was Fern Shen, then of the 'Washington Post.'

"Long story short, the case hung on what Stossel and his producer are alleged to have said to me and Shen when he and his producer came out of the hotel room after he realized what Dr. Ziem's assistant was doing."

Zurawik explained why he refused to testify: "...I was advised that the conversation...was protected under Shield Law, a crucial and hard-won journalistic protection absolutely essential if the press is going to be free to operate without government control. You don't waive that lightly. As a result, my attorney and I both advised the State's Attorney's office that I would not be testifying about that conversation despite the subpoena."

Zurawik concluded:

"...unless the law has changed (and I have found no evidence of that), there is clear precedent for the Baltimore State's Attorney's office in charging these two filmmakers, if a complaint is filed, with a felony that carries a maximum sentence of five years.

"And this time, Baltimore State's Attorney Patricia A. Jessamy's office won't have a case based on at least one journalist who won't testify and a network that says videotaping never took place. From what I've seen online, O'Keefe and Giles are saying openly that they secretly taped the ACORN employees in Baltimore with hidden cameras."

Twelve states still prohibit surreptitious recording and the United States Supreme Court left no doubt that such prohibition is constitutional. So are prosecuting authorities in Pennsylvania, Maryland and California not prosecuting for legitimate legal reasons (Maryland's statute expressly covers a person who "procure[s] any other person to intercept," while California's statute defines person to include "an individual, business association, partnership, corporation, limited liability company, or other legal entity but does not mention procuring")...or for political purposes (such as discouraging public attention from focusing on ACORN and perhaps its long relationship with President Obama and with his presidential campaign in 2007 and 2008)?

© 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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