Michael Gaynor
Should ACORN exposer Hannah Giles now sue attorney Eugene Iredale, was the now settled Vera case "meritless" and who won due to the ACORN sting?
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By Michael Gaynor
March 19, 2013

Ironically, the efforts of O'Keefe, Giles and Breitbart helped ACORN's candidate, President Obama. The spotlight was put on Giles' legs and ACORN facilitating underage prostitution instead of Obama's history with ACORN and the illicit relationship between the Obama presidential campaign and ACORN's Project Vote and he distanced himself from ACORN.

It seems that conservative activist Hannah Giles now has a claim against attorney Eugene Iredale, if blogger and ACORN ally Brad Friedman told the truth about his source for reporting that Giles paid $50,000 to settle with former ACORN employee Juan Carlos Vera, and, notwithstanding the assertion of her partner in the ACORN sting videos, James O'Keefe, that Vera's case against Giles and O'Keefe had no legal merit and well motivated as Giles and O'Keefe probably were, it surely did, because California has a broad invasion of privacy statute and even though I consider that statute unwise, it nevertheless is constitutional.

Dave Maass, July 25, 2012, "Hannah Giles settles ACORN suit" (www.sdcitybeat.com/sandiego/article-10785-hannah-giles-settles-acorn-suit.html):

"The right-wing activist who posed as a prostitute in a series of undercover videos aimed at discrediting the nonprofit ACORN has settled a lawsuit filed by a worker who alleged that she violated his privacy rights.

"Juan Carlos Vera, who worked at the National City ACORN office, filed the suit two years ago in federal court. In 2009, Hannah Giles and James O'Keefe, who acted as Giles' sleazy boyfriend, secretly videotaped Vera purportedly giving the pair advice on how to bring teenage girls across the border from Mexico. Vera lost his job, although a subsequent investigation by the state Attorney General found that he'd acted properly, contacting the police immediately after the incident.

"It's generally illegal in California to record a conversation without the consent of all parties involved. However, Giles has argued that she's not culpable since O'Keefe was the one actually holding the recording devices. Court filings dated July 20 reveal that Giles and Vera have reached a settlement. Although the terms have not yet been made public, the parties have agreed to bear the cost of their own attorney fees.

"O'Keefe continues to fight the suit, even though he admitted that he made the secret recording while aware of the consent requirements of California's Privacy Act in a deposition made public in May. The deposition also revealed that O'Keefe made $65,000 and Giles made $60,000 through the late Andrew Breitbart's conservative media ventures."

This month O'Keefe settled with Vera too. He agreed to pay $100,000 and expressed regret for "any pain caused to Mr. Vera or his family" without admitting any liability in the settlement agreement, which is available at http://www.theatlantic.com/politics/archive/2013/03/andrew-breitbart-and-james-okeefe-ruined-him-and-now-he-gets-100-000/273841/.

Friedman interviewed Vera's lawyer, Eugene Iredale, on his radio show and then posted an article titled "The Attorney of ACORN Worker Who Won $100k From James O'Keefe on Today's KPFK 'BradCast'" on 3/13/2013, 9:05pm PT (www.bradblog.com/?p=9921), and stated in it that "Vera also received $50,000 from O'Keefe's former partner Hannah Giles in a separate settlement last summer."

The interview is available at www.bradblog.com/?p=9921.

During the interview Iredale stated that the settlement with Giles was confidential and declined to state how much she had paid to settle.

In his article on the interview Friedman did not identify a source for his report that the amount was $50,000, but the next day Friedman posted a follow up article identifying Iredale as the source:

Brad Friedman, March 14, 2013 5:28 PM, "Hannah Giles Paid $50,000 To Fired San Diego ACORN Worker In Settlement Last July": "Pretend journalist and Republican activist Hannah Giles agreed to pay $50,000 to former San Diego ACORN worker Juan Carlos Vera as a part of a legal settlement struck last summer in response to an invasion of privacy lawsuit filed against her and her former partner James O'Keefe, Vera's attorney Eugene Iredale has confirmed to The BRAD BLOG."

Should Giles now sue Iredale for violating a confidentiality agreement?

The interview is also notable for Iredale's explanation as to his client did not sue for defamation as well as invasion of privacy. Iredale basically said that also suing for defamation would have allowed attack on ACORN and he preferred to make the case "as clean as possible."

That he did, because California is one of the twelve states that prohibit a party to a recording to secretly record it.

At his website O'Keefe posted a defiant statement on his settlement with Vera in the following article:

James O'Keefe Settles Meritless Lawsuit: "This is the Cost of Exposing the Truth"

Mar 8 2013

NEW YORK – Today after three years fighting a meritless lawsuit against former ACORN employee Juan Carlos Vera, a nuisance settlement has been filed. James O'Keefe issued the following statement in regards to the settlement:

"There comes a time when the cost to defend yourself against meritless accusations becomes so burdensome financially and personally, it is simply too great. The settlement admits no liability and there is no benefit from extending this ridiculous lawsuit.

"Sadly, this is the cost of exposing the truth. That's why so few people do it. There are liability issues inherent in undercover journalism. But let me be clear, this lawsuit had nothing to do with editing or misrepresentation. It was an action under the California Invasion of Privacy Act. The anti-recording statute under which the suit was brought is unconstitutional, overbroad, and gives the police and other public officials too much power.

"As President of Project Veritas and undertaking 5 current investigations, my time and resources are better served in working toward our mission of exposing waste, fraud, and abuse then defending myself against lies. I will not be deterred from investigating and exposing corruption. Now more than ever, America is in need of a more ethical and transparent society."

Never-heard before details surrounding this case and much more will be revealed in a book by James O'Keefe to be released in June 2013.

The truth is that O'Keefe is fortunate that then California Attorney General gave O'Keefe immunity from prosecution in return for the unedited tapes made in California.

The prudence of statutes criminalizing surreptitious recording certainly is debatable – I wrote "One-party Consent to Surreptitious Recording Should Be Lawful Everywhere" (October 23, 2009) www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=091023, but they have been upheld as constitutional.

"In Will ACORN Sue O'Keefe, Giles and Breitbart.com in California Next?' (September 25, 2009) (www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=090925), I explained:

"Unfortunately for O'Keefe, Giles and Breitbart.com, there's an important difference between the Maryland and California statutes: Maryland only criminalizes 'willful' conduct, but California merely requires 'intentional' conduct.

"There does not appear to be a dispute that O'Keefe and Giles intended to and did videotape and/or facilitate videotaping in at least two ACORN offices in California."

As for the applicable constitutional law that O'Keefe apparently does not appreciate, see "Andrew Breitbart Should Read and Rely on the Honorable Justice Clarence Thomas" (November 24, 2009)(www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=091124):

On August 28, 2009, Breitbart tweeted: "God bless, Clarence Thomas."

On that, we agree!

Unfortunately, when it comes to respecting the law, Breitbart is no Justice Thomas.

IF Breitbart's claim that he had "nothing to do" with the production of any of the "Pimp and Pro" ACORN videos is true, then it was lawful for him to publish them.

BUT, if he was not "otherwise innocent," it apparently was not and if Justice Thomas's view had been the majority view in Bartnicki v. Vopper, 532 U.S. 514 (2001), there would not be a constitutional right for Breitbart (and Fox News) to rely on in publishing them.

Bartnicki involved both the federal and Pennsylvania laws against surreptitious recording.

The United States Supreme Court held under the Constitution that a publisher who 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.

Footnote 19 to the majority opinion 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)."

That's NOT good for intrepid investigators Hannah Giles and James O'Keefe, but it's great news for "otherwise innocent" publishers.

Justice Thomas joined the late Chief Justice Rehnquist and Justice Scalia in dissenting, because they believed that the majority had NOT been protective enough of privacy and had interpreted freedom of the press too broadly!

They wrote: "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."

God bless Justice Thomas!

Excerpts from the dissenting opinion:

"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations. 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, thereby chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day."

"This concern for privacy was inseparably bound up with the desire that personal conversations be frank and uninhibited, not cramped by fears of clandestine surveillance and purposeful disclosure: 'In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.' President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

"To effectuate these important privacy and speech interests, Congress and the vast majority of States have proscribed the intentional interception and knowing disclosure of the contents of electronic communications. 2 See, e. g., 18 U. S. C. 2511(1)(c) (placing restrictions upon 'any person who ... intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication').

"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, 391 U. S. 367, 377 (1968)).

"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. 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 Court's attempt to avoid these precedents by reliance upon the Daily Mail string of newspaper cases is unpersuasive. In these cases, we held that statutes prohibiting the media from publishing certain truthful information – the name of a rape victim..., the confidential proceedings before a state judicial review commission..., and the name of a juvenile defendant... violated the First Amendment. In so doing, we stated that 'if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order'....Neither this Daily Mail principle nor any other aspect of these cases, however, justifies the Court's imposition of strict scrutiny here.

"Each of the laws at issue in the Daily Mail cases regulated the content or subject matter of speech. This fact alone was enough to trigger strict scrutiny, see United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) ('[A] content-based speech restriction ... can stand only if it satisfies strict scrutiny'), and suffices to distinguish these antidisclosure provisions. But, as our synthesis of these cases in Florida Star made clear, three other unique factors also informed the scope of the Daily Mail principle.

"First, the information published by the newspapers had been lawfully obtained from the government itself....

"Second, the information in each case was already 'publicly available,' and punishing further dissemination would not have advanced the purported government interests of confidentiality....

"Third, these cases were concerned with 'the "timidity and self-censorship" which may result from allowing the media to be punished for publishing certain truthful information'.... But fear of 'timidity and self-censorship' is a basis for upholding, not striking down, these antidisclosure provisions: They allow private conversations to transpire without inhibition. And unlike the statute at issue in Florida Star, which had no scienter requirement, ...these statutes only address those who knowingly disclose an illegally intercepted conversation. They do not impose a duty to inquire into the source of the information and one could negligently disclose the contents of an illegally intercepted communication without liability.

"In sum, it is obvious that the Daily Mail cases upon which the Court relies do not address the question presented here. Our decisions themselves made this clear: 'The Daily Mail principle does not settle the issue whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well'.... "

"Undaunted, the Court places an inordinate amount of weight upon the fact that the receipt of an illegally intercepted communication has not been criminalized.... But this hardly renders those who knowingly receive and disclose such communications 'law-abiding,'.., and it certainly does not bring them under the Daily Mail principle. The transmission of the intercepted communication from the eavesdropper to the third party is itself illegal; and where, as here, the third party then knowingly discloses that communication, another illegal act has been committed. The third party in this situation cannot be likened to the reporters in the Daily Mail cases, who lawfully obtained their information through consensual interviews or public documents.

"These laws are content neutral; they only regulate information that was illegally obtained; they do not restrict republication of what is already in the public domain; they impose no special burdens upon the media; they have a scienter requirement to provide fair warning; and they promote the privacy and free speech of those using cellular telephones. It is hard to imagine a more narrowly tailored prohibition of the disclosure of illegally intercepted communications, and it distorts our precedents to review these statutes under the often fatal standard of strict scrutiny. These laws therefore should be upheld if they further a substantial governmental interest unrelated to the suppression of free speech, and they do.

"Congress and the overwhelming majority of States reasonably have concluded that sanctioning the knowing disclosure of illegally intercepted communications will deter the initial interception itself, a crime which is extremely difficult to detect....

"...the Court faults Congress for providing 'no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions,'..., and insists that 'there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions,'.... It is the Court's reasoning, not the judgment of Congress and numerous States reg'ding the necessity of these laws, which disappoints.

"...Although we must nonetheless independently evaluate ...congressional findings in performing our constitutional review, this 'is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own'....

"The 'dry-up-the-market' theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime, is neither novel nor implausible. It is a time-tested theory that undergirds numerous laws, such as the prohibition of the knowing possession of stolen goods.... We ourselves adopted the exclusionary rule based upon similar reasoning, believing that it would 'deter unreasonable searches,'..., by removing an officer's 'incentive to disregard [the Fourth Amendment],'....

"The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the interest of protecting the privacy of individual communications. Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection. Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion. The law against interceptions, which the Court agrees is valid, would be utterly ineffectual without these antidisclosure provisions."

"At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in place of the reasoned judgment of 41 legislative bodies and the United States Congress. The Court does not explain how or from where Congress should obtain statistical evidence about the effectiveness of these laws, and '[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled'.... Reliance upon the 'dry-up-the-market' theory is both logical and eminently reasonable, and our precedents make plain that it is 'far stronger than mere speculation'.....

"These statutes also protect the important interests of deterring clandestine invasions of privacy and preventing the involuntary broadcast of private communications....

"These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation. 'At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence'.... By 'protecting the privacy of individual thought and expression,'..., these statutes further the 'uninhibited, robust, and wide-open' speech of the private parties.... Unlike the laws at issue in the Daily Mail cases, which served only to protect the identities and actions of a select group of individuals, these laws protect millions of people who communicate electronically on a daily basis. The chilling effect of the Court's decision upon these private conversations will surely be great....

"...The Court concludes that the private conversation between Gloria Bartnicki and Anthony Kane is somehow a 'debate .... worthy of constitutional protection'.... Perhaps the Court is correct that '[i]f the statements about the labor negotiations had been made in a public arena-during a bargaining session, for example they would have been newsworthy'.... The point, however, is that Bartnicki and Kane had no intention of contributing to a public 'debate' at all, and it is perverse to hold that another's unlawful interception and knowing disclosure of their conversation is speech 'worthy of constitutional protection.' Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) ('[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say"'). 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.

"The Court's decision to hold inviolable our right to broadcast conversations of 'public importance' enjoys little support in our precedents....

"Surely 'the interest in individual privacy,'..., at its narrowest, must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right, not to the claims of those who themselves wish to speak, but to the claims of those who wish to publish the intercepted conversations of others. Congress' effort to balance the above claim to privacy against a marginal claim to speak freely is thereby set at naught."

O'Keefe does not seem to relize the the conservative dissenting Justices perceived even more constitutionally permissible protection for privacy than the liberal Justices.

Finally, Iredale claimed during the interview that conservative "won the war" and "ACORN was a casualty."

WRONG!

Ironically, the efforts of O'Keefe, Giles and Breitbart helped ACORN's candidate, President Obama, win relection. The spotlight was put on Giles' legs and ACORN facilitating underage prostitution instead of Obama's history with ACORN and the illicit relationship between the Obama presidential campaign and ACORN's Project Vote and he distanced himself from ACORN.

The spotlight belonged on ACORN whistleblower Anita MonCrief, who has been bravely exposing while the liberal media establishment has been deliberately ignoring.

In the interview Iredale said that "they" (referring to the conservatives "won the war" and "ACORN was a casualty.

The truth is that the sensational Pimp and Pro Sting resulted in the winning of a battle but the losing of the war. Obama "won the war." Thanks to the Sting, he deftly distanced himself from ACORN – dropping it as a census partner and signing the bill defunding it, while ACORN skillfully morphed and helped him get reelected. Project Vote, a key part of the ACORN family, never even changed its name or moved out of its Washington, DC office!

© 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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