In September 16 articles, The New York Times and Baltimore Sun covered attacks against ACORN based on videotapes of conservative activists posing as a prostitute and a pimp while speaking to ACORN employees in several states, including California and Maryland. However, those articles did not note that, as ACORN has alleged, some of the videotapes may have been taken illegally.
Times, Sun report on videotape-based attacks on ACORN but ignore possible illegality of videotaping
From a September 16 New York Times article:
For months during last year's presidential race, conservatives sought to tar the Obama campaign with accusations of voter fraud and other transgressions by the national community organizing group Acorn, which had done some work for the campaign.
But it took amateur actors, posing as a prostitute and a pimp and recorded on hidden cameras in visits to Acorn offices, to send government officials scrambling in recent days to sever ties with the organization.
Conservative advocates and broadcasters were gleeful about the success of the tactics in exposing Acorn workers, who appeared to blithely encourage prostitution and tax evasion. It was, in effect, the latest scalp claimed by those on the right who have made no secret of their hope to weaken the Obama administration by attacking allies and appointees they view as leftist.
From a September 16 Baltimore Sun article:
House Republicans renewed a push Tuesday to end all federal funding of ACORN, an activist community organization that is under fire nationally for apparently giving advice on evading tax laws in Baltimore and other cities.
The move followed a bipartisan Senate vote Monday evening that could block ACORN, the Association of Community Organizations for Reform Now, from a major source of federal funds as early as next month. If the Republican-sponsored provision, approved with broad Democratic support, survives a House-Senate conference committee, various ACORN programs, including mortgage counseling and community development, would be ineligible for federal housing or transportation funds.
But aided by the recent "sting" operation in Baltimore and other cities, the conservative attacks appear to be bearing fruit under an administration led by a one-time community organizer with ties to ACORN. Obama represented ACORN in a 1995 lawsuit and worked briefly for Project Vote, a voter registration effort that partners with ACORN. During the 2008 primaries, Obama's campaign contracted with an ACORN affiliate for get-out-the-vote services.
But on Friday, the Census Bureau, in cutting ties with the group, said ACORN's involvement in promoting the 2010 count had become "a distraction" that could hurt next year's effort, the Associated Press reported.
The action came to light as ACORN dismissed a total of four employees in Baltimore and Washington after the latest controversy involving tax advice to a couple posing as a pimp and a prostitute.
Videotaping may have violated state criminal statutes
Baltimore state's attorney: Maryland law requires "two-party consent" to record audio. Maryland law provides that, subject to several exceptions, "it is unlawful for any person to ... [w]ilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." The website of Baltimore radio station WBAL has published audio of Pat Jessamy, the state's attorney for the city of Baltimore, stating with regard to the tape of ACORN employees at the group's Baltimore office, "Maryland is a two-party consent state, which means that if you record someone orally ... without the permission of all parties, then the interception of that is a crime" and that if the tape was illegally obtained, "the use of it ... is also a crime." According to a post on WBAL's website, in a written statement, Jessamy said:
The audio portion could possibly have been obtained in violation of Maryland Law, Annotated Code of Maryland Courts and Judicial Proceedings Article §10-402, which requires two party consent.
If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years.
California law also prohibits recording of some conversations. According to the Reporters Committee for the Freedom of the Press, "an appellate court has ruled that using a hidden video camera in a private place does violate the statute. California v. Gibbons." The California Penal Code states that, subject to exceptions:
Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.
ACORN has alleged that videotaping violated criminal statutes. In a September 11 letter to Fox News president Roger Ailes, Arthur Schwartz, an attorney for ACORN, wrote:
After looking at the law, it is our conclusion that the filming and broadcast of the conversations at the Baltimore ACORN offices violates §10-402(a)(1) of the Courts and Judicial Proceedings Article of the Maryland Code, which makes it unlawful to wilfully intercept, endeavor to intercept, or procure any other person to intercept any oral conversation unless all parties to the communication consent. FOX News, the filmmakers, and the producer of the videos have clearly violated this statute. It is also our belief that the tape broadcast today, involving ACORN's Washington, D.C. office, violates §23-542 of the D.C. Code in that the conversation was recorded for no purpose other than to cause injury.