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ACORN Will Regret Filing Lawsuit

September 22, 2009
By James L. Hirsen, J.D., Ph.D.
contributor to

ACORN has announced its lawsuit against filmmakers James O'Keefe and Hannah Giles, and columnist Andrew Breitbart for what it alleges was "illegal videotaping" of ACORN employees in Baltimore. So the head of the group has gone from blasting the filmmakers, then praising them for helping ACORN uncover corruption, to now, suing them.

The suit was filed in the Circuit Court in Baltimore where sympathetic juries are available. In addition, ACORN wants preliminary and permanent injunctions to stop any other pesky videotapes from coming out. It also is seeking damages that could be as high as $7 million.

The video shows now-fired ACORN employees giving tax advice to O'Keefe and Giles, who are posing, as their minimal costume budget will allow, as a pimp and a prostitute.

ACORN has a dream team of four major mouthpieces: Andy Freeman, A. Dwight Pettit, Arthur Schwartz, and C. Justin Brown.

The group and their attorneys are going to regret filing this lawsuit.

So far, ACORN employees have been featured on videos assisting criminal behavior in three other states and Washington, D.C. This suit, by necessity, is only for the Maryland recordings.

ACORN is going to try to nail the defendants on Courts and Judicial Proceedings Code sections 10-402(a) and 10-410, which require two-party consent to all electronic surveillance.

But the suit will open ACORN up to cross-complaints and a broad discovery process that will include the production of e-mails, correspondence, memos and internal documents, as well as depositions of employees. Haven’t these people ever heard of Whitewater and Ken Starr?

O’Keefe and company will have a powerful procedural move to make.

Because the ACORN employees and the defendants are from different states, the case can be removed to federal court. That court is in the conservative Fourth Circuit, giving the defendants a place to win on the appeal of rulings and even the final judgment.

But the ACORN lawsuit may get tossed before that ever happens. The only cause of action here is for a violation of the Maryland wiretapping statute. The suit says that O’Keefe and Giles, working together with Breitbart, exposed an “oral communication” using an electronic device, which could be a violation of the act. But the statute says that “oral communication” in another section, 10-401(2)(i) is “any conversation or words spoken to or by any person in private conversation.”

Under the law, “private” means that at least one of the parties to the conversation must have had a reasonable expectation of privacy at the time and place where the conversation was recorded.

But the ACORN employees would not have any reasonable expectation of privacy in what was said to those who entered their offices ostensibly to seek services, according to a host of legal precedents.

Because these conversations took place in a business office between ACORN employees and two “customers,” they are not “private conversations” as defined under the Maryland Wiretap Act.

Add to this the effect of the First Amendment because O’Keefe, Giles, and Breitbart are media defendants, and what you have in scholarly law professorial terms is called . . . a loser.

But as we know from watching our courts, lots of judges on the bench like to ignore the law and turn losers into winners.

A former ACORN board member, Marcel Reid, who was kicked out of the organization last year for trying to look into the group’s accounting, summed the situation up well: “If we’d known all it took was a half-naked 20-year-old, we’d have done this a year and a half ago.”

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James L. Hirsen, J.D., Ph.D.
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