Legal News

Does the Constitution Protect O?Keefe?s Surreptitious Recordings?

By Nathan Koppel

The sting operations orchestrated by conservative filmmaker/activist James O’Keefe are quickly becoming the stuff of legend.

In 2009, he filmed ACORN employees purportedly offering folks who pretended to be involved in a prostitution scheme advice on how to skirt the law.

More recently, of course, O’Keefe’s group captured a National Public Radio executive disparaging the Tea Party.

How much of O’Keefe’s oeuvre is protected by the First Amendment? This TPM post explores the issue.

ACORN employee Juan Carlos Vera, who was captured by O’Keefe, sued the filmmaker in California last year, seeking damages for O’Keefe’s alleged violation of California privacy law.

In defending the case, O’Keefe’s legal team claimed that his sting operation was constitutionally protected. The lawyers likened his activities to Ashton Kutcher’s MTV show “Punk’d” and the writings of James Madison, according to TPM.

Earlier this week, Vera’s lawyer, Eugene Iredale, fired back with this filing.

“There is no special or disparate treatment accorded ‘exposé’ journalism’ under the Constitution,” Iredale writes. “O’Keefe is not immune from prosecution for breaking into an office or recording confidential communication because he calls himself a journalist.”

Iredale also took issue with the Punk’d comparison. Those types of shows, he wrote, “not only obtain the participant’s release to air the shows but they are filmed in public places and often involve public figures. It would hardly be ‘artistic freedom’ for a television crew to sneak into a person’s house and surreptitiously record them in a confidential conversation.”

We spoke to Christopher Hajec, O’Keefe’s lawyer at the Washington, D.C.-based  Center for Individual Rights. He said O’Keefe is moving to dismiss the case on the grounds that the statute at issue, which bans the recording of private communications without the consent of all parties, is overbroad.

“Under this law it is a crime for a motorist to record what a police officer says to him at a traffic stop. The law sweeps too broadly,” Hajec said.  The law, he added, also improperly bans all types of news gathering that involve the recording of private communications without consent.

Full post as published by Law Blog - WSJ.com on March 31, 2011 (boomark / email).