Videotaping may have violated state criminal statutes

CRS: MD, CA state laws “appear to ban” the kind of videotaping O'Keefe and Giles did in those states. The Congressional Research Service has stated with regard to O'Keefe and Giles' recording that state laws in California and Maryland “appear to ban private recording of face to face conversations, absent the consent of all the participants.”

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:

[T]he 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.

CA AG's office reportedly opened investigation into videotaping. In October 2009, the Los Angeles Times reported:

Gov. Arnold Schwarzenegger asked Brown to investigate the videos in a letter two weeks ago. Chief Deputy Atty. Gen. James M. Humes replied that an investigation has been opened “of both ACORN and the circumstances under which ACORN employees were videotaped.”

It is illegal under state law to tape someone without his or her permission.

“We're going to look at the tapes, we're going to follow the facts without fear or favor, and we're going to see where it takes us,” said Scott Gerber, a Brown spokesman.

ACORN suing O'Keefe and Giles over Maryland videotaping. In a September 11, 2009, 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.

ACORN subsequently sued Giles and O'Keefe over their videotaping at ACORN's Baltimore office.

Philadelphia ACORN employee reportedly suing filmmakers over “illegally recording” conversation. On January 23, FoxNews.com reported:

An employee at a Philadelphia branch of ACORN, the national community organization under fire for allegations of wrongdoing, has filed a lawsuit in federal court against the two filmmakers who set off the controversy last fall with their undercover videos.

The civil lawsuit filed Thursday in the U.S. District Court in Philadelphia accuses the filmmakers, James O'Keefe and Hannah Giles, of illegally recording their conversation with the worker, Katherine Conway-Russell, and then publicizing the videos, which Conway-Russell says “caused emotional distress, harm and injury.”

O'Keefe falsely claimed undercover video campaign was a “nationwide ACORN child prostitution investigation” that implicated many ACORN employees

In a November 16, 2009, BigGovernment.com post, O'Keefe claimed:

Although Mr. Felix D. Harris of Los Angeles ACORN told us he didn't care about our prostitution business in regards to a housing loan, he drew the line when we spoke about the underage girls. Although he did not kick us out, he was the only employee in our nationwide ACORN child prostitution investigation who would not assist us.

In fact, the claim that videos show employees at many ACORN offices willing to aid child prostitution is false. Giles and O'Keefe released heavily edited videos of their encounters at eight ACORN or ACORN Housing offices. In at least six of those instances, the activists did not clearly tell the ACORN employees that they were planning to engage in child prostitution; or the ACORN employees refused to help them or apparently deliberately misled them; or ACORN employees contacted the police following their visit.

O'Keefe claim that Harris was only ACORN employee who “would not assist us” is false

Contrary to O'Keefe's statement above, in one instance, an ACORN employee apparently deliberately misled O'Keefe and Giles, while ACORN employees at two other offices contacted the police following their visit.

San BernardinoACORN employee said she tried to “shock them as much as they were shocking me.” In the video of Giles and O'Keefe's visit to the San Bernardino, California, ACORN office, ACORN organizer Tresa Kaelke gives them advice on how to run a brothel and also informs them that she murdered her ex-husband. During the evening on September 15, 2009, ACORN issued a statement calling the video of O'Keefe and Giles' interactions with Kaelke an “obvious set of lies and manipulations.” Kaelke stated of the conservative activists who filmed her: “They were not believable. ... Somewhat entertaining, but they weren't even good actors. I didn't know what to make of them. They were clearly playing with me. I decided to shock them as much as they were shocking me. Like Stephen Colbert does -- saying the most outrageous things with a straightface.” In a September 15, 2009, news release, the San Bernardino Police Department stated that Kaelke's claim that she shot and killed her ex-husband “do[es] not appear to be factual.”

Philadelphia ACORN employee contacted police following visit. ACORN has publicly released a July 24, 2009, Philadelphia police report stating that an ACORN employee complained to police that O'Keefe had created a “verbal disturbance” at ACORN's office.

San Diego ACORN employee contacted police following visit. In a September 22, 2009, article, the Associated Press reported that National City, California, police said an ACORN worker contacted them about “possible human smuggling” after his interactions with Giles and O'Keefe.

Before release of LA video, O'Keefe dodged question about whether ACORN employees refused to help

O'Keefe didn't disclose LA tape when asked whether any ACORN employees “were not willing to cooperate.” During the September 13, 2009, edition of Fox News' America's News HQ, correspondent Eric Shawn asked, “Were there some that refused your offers, that actually did not -- were not willing to cooperate?” But rather than acknowledge at the time what happened in Los Angeles, O'Keefe responded:

O'KEEFE: No -- in none of the facil -- [laughs] none of the facilities kicked us out. That's a lie.

O'Keefe waited more than two months after this exchange to acknowledge that Harris “would not assist us obtain a house for our illegal activities.”

O'Keefe's colleagues falsely suggested no ACORN employees refused to assist him

Both O'Keefe's November 16, 2009, blog post and the facts stand in stark contrast to his BigGovernment.com colleagues' suggestions that the filmmakers were never rebuffed by any of the ACORN offices they visited in their attempts to get ACORN to assist them in improper activities.

Giles previously answered “No” to the question: "[Y]ou didn't go into one office, and they said, 'We're not going to help you do anything like that?' " On the September 16 edition of Fox News' Hannity, Sean Hannity interviewed Giles and Breitbart. During the interview, Hannity asked Giles: "[W]hen you go to Baltimore and D.C. and New York and San Bernardino and San Diego, and this all happened, were there any cities you went to where you just didn't get any videotape not worthy to air?" Giles replied: “We're airing it. It's pretty worthy. Everyone seems to think -- .” Hannity then asked: “In other words, you didn't go into one office, and they said, 'We're not going to help you do anything like that?' ” Giles responded, “No.”

Breitbart didn't disclose LA tape when asked whether “every” ACORN office visited “helped you or were willing to help you.” Following Giles' denial, Hannity said during the September 16 interview, “Not one? Every place you went, they helped you or were willing to help you, either -- not report you for an underage prostitution ring, evade taxes as we've -- .” Rather than acknowledge what happened in Los Angeles, Breitbart responded, “Right. It is interesting. There's no place, as ACORN tried to state, that kicked them out based upon the premise that they were doing something nefarious.”

Giles previously answered “no” to question: "[Y]ou are saying that there were some [ACORN employees] that did refuse?" Appearing on the September 13 edition of Fox News' America's News HQ, Giles stated: "[A]bout the whole kicking out, I mean, the women in Baltimore hugged me and -- when I left. And the women in D.C. -- I did follow-up phone calls, and they asked if I could come and meet them for coffee so we could further discuss how to make this possible." Shawn then asked, "[Y]ou are saying that there were some that did refuse? James or Hannah?" Giles responded, “Not -- no.”

BigGovernment's Flynn previously claimed: "[I]t's everywhere [O'Keefe] went." According to a September 16 article on the conservative website Human Events, Mike Flynn, the editor-in-chief of BigGovernment.com, said in an exclusive interview: “It's not even just one random employee, it's so comprehensive, it's everywhere [O'Keefe] went. What shocks me is when you watch the videos, they don't even flinch.”

O'Keefe reportedly falsely claimed he did not get “any money from conservative backers”

Wallace: O'Keefe “denies reports on left-wing blogs he got any money from conservative backers.” On the September 27, 2009, edition of Fox News Sunday, host Chris Wallace said: “O'Keefe wants to set the record straight. He denies reports on left-wing blogs he got any money from conservative backers.”

But a conservative investor reportedly admitted that he funded an earlier O'Keefe video released last year. On September 22, 2009, Village Voice reported that the spokesperson for conservative investor Peter Thiel acknowledged that Thiel had contributed “about $10,000” to an earlier video that O'Keefe released in February 2009. The Village Voice reported that Thiel's spokesperson denied that Thiel had “any involvement with the ACORN videos.” [The Village Voice, 9/22/09]

Conservatives are also currently fundraising for O'Keefe's legal defense. As Media Matters has documented, numerous conservative media figures, including Breitbart, Sean Hannity, HotAir's Allahpundit, and NewsBusters have stated that they were fundraising or would fundraise for O'Keefe and Giles' legal defense fund. Indeed, BigGovernment.com's “ACORN Video Investigation Resources” page implores readers to “Please Donate to ACORN Related Legal Defense Funds,” and provides links to Giles' and O'Keefe's respective funds.

Breitbart himself acknowledged that he pays O'Keefe “a fair salary.” From Breitbart's January 26 interview with Hugh Hewitt:

AB: When the story came to us, what I wanted to do was to make sure that the ACORN story got as much widespread dissemination as humanly possible. The videos that he independently produced went on YouTube. And so Huffington Post, every single site put it out there, including my sites. What he does for the site exclusively is he tells his life rights, basically. So when he puts a story out there, it's on the Brietbart sites, the Big sites, that he can tell people what transpired. So ...

HH: Do you pay him for that?

AB: Yes.

HH: And are you free to tell me how much you pay him?

AB: I'll ... perhaps at another date, but he's paid a fair salary.

HH: Is he ... so he is an employee?

AB: I'm not sure that's technically the thing, but yes, he's paid for his life rights. And he's, you know, he's still ... we reserve the right to say yes or no to any of the stories that he puts up on our site as we do to any other contributor who comes to the site.

Friend of O'Keefe reportedly objected to past transcript distortion

Report: O'Keefe friend said she “grew disillusioned” with his tactics after being asked to doctor transcript of a past film. A September 18, 2009, New York Times article reported that Liz Farkas, a college friend of O'Keefe's while at Rutgers University, said she “grew disillusioned” after O'Keefe asked Farkas to help deceptively “edit the script” of a video involving a nurse at the University of California at Los Angeles. From the Times:

Not everyone among Mr. O'Keefe's acquaintances agrees. Liz Farkas, a Rutgers student who called Mr. O'Keefe “a nice guy and a loyal friend,” said she grew disillusioned after he asked her to help edit the script of a Planned Parenthood sting.

“It was snippets to make the Planned Parenthood nurse look bad,” Ms. Farkas said. “I said: 'It has no context. You're just cherry-picking the nurse's answers.' He said, 'Okay' -- and then he just ran it.”

Asked whether the left-leaning documentaries of Michael Moore do not do the same, Ms. Farkas said: “Michael Moore goes after the rich and powerful. James isn't doing that. He goes after low-level bureaucrats and people who are trying to help low-income people.”

In a correction later appended to the report, the Times stated:

An article on Saturday about James E. O'Keefe III, the conservative activist who caught on videotape compromising statements by workers at the community organizing group Acorn, included incorrect information from Liz Farkas, an acquaintance of Mr. O'Keefe's, who spoke in an interview about having read a transcript of one of his earlier projects. The transcript was of an encounter with a nurse at the University of California at Los Angeles; it was not of a nurse at Planned Parenthood.

After Breitbart demands ACORN investigation, independent assessments by CRS and ACORN find no laws broken by ACORN

Breitbart demanded DOJ investigate ACORN, threatened to release “more tapes” if they did not do so. During the November 19, 2009, edition of Fox News' Hannity, Breitbart offered a “message” for Attorney General Eric Holder:

BREITBART: I want you to know that we have more tapes. It's not just ACORN, and we're going to hold out until the next election cycle. Or else, if you want to do a clean investigation, we will give you the rest of what we have, we will comply with you, we will give you the documentation we have from countless ACORN whistleblowers who want to come forward but are fearful of this organization and the retribution, that they fear that this is a dangerous organization. So if you get into an investigation, we will give you the tapes. If you don't give us the tapes, we will revisit these tapes come election time.

Following up on his comments, in a November 21, 2009, blog post on BigGovernment.com, Breitbart stated, “There will be consequences if there isn't an investigation into ACORN. The videos will be shown and at a particular moment.”

CRS: ACORN did not “violate the terms of federal funding in the last five years.” A December 22, 2009, report by the Congressional Research Service prepared for the House Judiciary Committee on “several issues” relating to ACORN and its affiliates stated that "[a] search of reports of federal agency inspectors general did not identify instances in which ACORN violated the terms of federal funding in the last five years."

Independent ACORN assessment “did not find a pattern of intentional, illegal conduct by ACORN staff.” In his December 7, 2009, “Independent Governance Assessment of ACORN,” former Massachusetts Attorney General Scott Harshbarger (D), who was hired by ACORN to conduct an inquiry in part into the videos, wrote, “While some of the advice and counsel given by ACORN employees and volunteers was clearly inappropriate and unprofessional, we did not find a pattern of intentional, illegal conduct by ACORN staff; in fact, there is no evidence that action, illegal or otherwise, was taken by any ACORN employee on behalf of the videographers.”

Contrary to suggestion promoted by Breitbart, some ACORN employees advised O'Keefe and Giles to file taxes

On September 29, 2009, “Publius,” the pseudonym for Big Government's “Editorial Panel,” promoted an Investors Business Daily editorial claiming that O'Keefe and Giles showed that “Acorn staffers openly encouraged ... tax evasion.” But of the five videos that had been released at that time, in two cases the filmmakers were told they had to file taxes, in one case (San Diego) the ACORN employee contacted the police following their interaction with the filmmakers, and in one case (San Bernardino) the ACORN employee apparently deliberately misled O'Keefe and Giles.

Washington, D.C.: Employee tells Giles, “You need to file taxes every year.” According to the transcript of O'Keefe and Giles' video at the Washington, D.C., ACORN office, an employee told Giles, “You need to file taxes every year to establish an income.” After Giles asked, "[I]s there a way I can make up two years of tax returns?" the employee responded, “No you can't make it up. The guidelines are too tight.”

New York: Employee tells O'Keefe and Giles that they “have to file taxes.” According to transcript posted on BigGovernment.com, an employee at the ACORN office in New York told O'Keefe and Giles that they “have to file taxes” and that they would “have to have at least two years taxes” to qualify for a loan.

Right-wing media have repeatedly used or condoned legally questionable methods to attack ACORN

Dumpster diving. In a November 23, 2009, post to Andrew Breitbart's BigGovernment.com website, private investigator Derrick Roach revealed that he had “retrieved” documents from the San Diego ACORN office's “public dumpster.” Roach and the documents subsequently received heavy promotion by BigGovernment.com and Fox News. The photo of the “public dumpster” Roach provided showed that it was behind a gate, and Roach reportedly “drove past a 'No trespassing' sign to get to the trash.” ACORN spokeswoman Amy Schur reportedly stated that ACORN had contacted the District Attorney's Office to “alert the office 'to the fact [the documents] were obtained illegally.”

During a November 24, 2009, interview on Talk Radio KABC, California Attorney General Jerry Brown stated: “You know, you're supposed to have a little privacy in your garbage cans. As a matter of fact, there was a case that I handled when I was a very young lawyer back in the 60's where the police looked in someone's garbage, they found some marijuana cigarettes, and ultimately the U.S. Supreme Court threw it out, they said you have an expectation of privacy in your garbage cans.” Breitbart subsequently claimed that the Supreme Court ruled that there is “no expectation of privacy when items are thrown in the garbage.” In fact, as Media Matters noted, the Supreme Court ruling to which Breitbart referred specifically addressed “plastic garbage bags left on or at the side of a public street.”

Lewis' apparently stolen contact list. RedState.com obtained “a list of [ACORN CEO] Bertha Lewis's contacts” that “just showed up one day unsolicited” from “a credible source who is no fan of ACORN,” and claimed, “We did not ask for it. We did not expect to get it. But now that we have it, we should see who is in there.” RedState publicized the contents of the list, despite its apparently stolen nature.