To augment Darin’s analysis, NRO spoke with two more top attorneys: Albert Gidari, a privacy-law expert, and Victoria Toensing, a former chief counsel for the Senate Select Committee on Intelligence and a former deputy assistant attorney general, criminal division.
Gidari, a partner at Perkins Coie LLP, is also a member of the legal-policy advisory board at the Washington Legal Foundation. He tells us that filmmakers James O’Keefe and Hannah Giles have numerous defenses to consider. “This is a really difficult case,” he says. “As Linda Tripp learned with Monica Lewinsky, recording a conversation in Maryland can present some problems.”
“One of the key questions here is whether a public or nonprofit group can rely on statutes like those in Maryland that prohibit the interception of communications without prior consent,” says Gidari. “Apart from the politics here, the law in Maryland is very clear: You can’t record in a place where there is an expectation of privacy. However,” he adds, “if you are making a recording of a speech in a public place, that’s a little different.”
Gidari notes that twelve states prohibit the kind of conduct alleged in the suit. “Maryland is one of those places that [the filmmakers] should have researched more closely before conducting any type of activity,” he says. “When Maryland’s statute was passed in 1977, things like pocket recorders and old-style recording devices that journalists would use — like hiding microphones in suitcases — were the focus.” Now, he says, “this is the YouTube generation. All cell phones are recording devices and if you use it as such, you technically violate the law. Yet when you use a cell phone to record, there is a question of whether the law was intended to reach that kind of use, or if it even applies at this point. Still, Maryland and other states have put a stake in the ground,” leaving little room for contention.
Arguing about the intent of an outdated statute, says Gidari, is the “kind of thing [the filmmakers and their attorneys] might argue.” For example, he says, “one can wonder if an organization that deals with the public like ACORN has an expectation of privacy in certain situations.” (Darin makes a similar point.)
Nevertheless, Gidari says that “the Maryland statute cited here is pretty plain on its face. Arguing against that will be like arguing if a ‘no parking’ or ‘no smoking’ sign is ambiguous. Only a lawyer can find ambiguity in a ‘no smoking’ sign,” he laughs.
Another defense, says Gidari, could be to ask whether state laws like those in Maryland are inconsistent in how they compare to federal privacy legislation. “The irony is that under Maryland law, if the [filmmakers] had walked out of the ACORN office and raised their right hand to the media, reporting their conversations verbatim, they would not be liable. Because they allegedly sat in the office, with hidden microphones and cameras, with the absence of consent or constructive notice, they’ll have a tough case to make.”
Gidari adds that civil remedies in cases like these are “not too severe,” at $100 for each day of violation plus punitive damages and legal fees. Criminal damages, he says, are also possible for individuals who surreptitiously record. Regardless, with this case, “the damages claim is ridiculous,” he says. (ACORN has asked for $500,000 to be paid to the two employees recorded in Baltimore and for $1 million to be paid to the organization itself.) “The court could say that such the small penalties outlined in the statute are enough, and that there is a public good here that countervails the acts of these individuals,” says Gidari.
Toensing, now a partner at DiGenova and Toensing, a Washington law firm, tells us that the ACORN suit will also leave the community-organizing group open to many uncomfortable questions during “discovery,” the pre-litigation process where each party is able to request information and documents from the other side. “Good lawyers working on behalf of the defense can play havoc with ACORN on all kinds of discoveries that look into the group’s business practices,” she says. “The defense could ask ACORN about all kinds of background questions, from getting the names of people who came in for similar mortgages to all kinds of creative discoveries.”
“Now, I haven’t researched the law in detail about reasonable expectations of privacy, but I don’t know how a conversation with four people will sit under that statute,” she says. “It’s rather strange to say that, in a private office, the ACORN employees had a reasonable expectation of privacy. That could be a legal fly in the ointment.”
The ACORN suit reminds Toensing of the case between Rep. Jim McDermott (D., Wash.) and House minority leader John Boehner (R., Ohio), in which McDermott was forced to pay Boehner more than $1 million in legal fees following their decade-long fight triggered by McDermott’s release of intercepted phone recordings to the New York Times. The case, she says, is also “not a very good case for a jury. When you’re talking about child prostitution, and the ACORN people don’t seem to care about it, the jury may be hesitant to reward them much money.”
Andrew Breitbart, the owner of Breitbart.Com LLC, the company that published the ACORN videos on its website BigGovernment.com, “may be immune in this case,” adds Toensing. “As a member of the press, he will probably have First Amendment protection. He can hire regular attorneys who could make ACORN suffer.”