"Pimp and Pro" ACORN Videos: Release Timing and Sequence
Footnote 19 to the majority opinion in Bartnicki v. Volper states: "Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. 'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."
It is now public knowledge that James O'Keefe and Hannah Giles, the stars of the "Pimp and Pro" ACORN videos, visited ACORN offices in Philadelphia and Baltimore on July 24, 2009, Washington, D.C. on July 25, 2009, New York on August 4, 2009, Los Angeles and San Bernardino on August 17, 2009 and San Diego on August 18, 2009.
Mastermind Andrew Breitbart's plan, as explained by him, was to release "[v]ideos of five different ACORN offices in five separate cities...on five consecutive weekdays over a full week - Baltimore, Washington, New York, San Bernardino and San Diego. By dripping the videos out, we exposed to anyone paying attention that ACORN was lying through its teeth and that the media would look imbecilic continuing to trot out their hapless spokespeople."
It did not turn out exactly as originally planned.
The first of the videos to be released was released on a Thursday, September 10, 2009.
That timing makes sense. Releasing before Labor Day 2009 would have reduced the impact and Labor Day 2009 fell on September 7. Congress reconvened soon after that, releasing on a September 11 anniversary might not seem respectful and releasing before the huge September 12 demonstration was desirable.
The release sequence makes sense too. ACORN's Philadelphia office was visited first, but the Baltimore tape was released first. The Baltimore visit was much more fruitful and did not result in the filing of a police report naming James O'Keefe.
Also, Pennsylvania law prohibiting surreptitious recording seems even "worse" than Maryland and California law.
18 Pa. Cons. Stat. § 5703. Interception, disclosure or use of wire, electronic or oral communications.
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication. (Oct. 21, 1988, P.L.1000, No.115, eff. imd.)
That strict statute not only prohibits intentional interception, but also endeavoring to intercept and procuring another to intercept and intentionally disclosing or endeavoring to disclose to anyone else and using or endeavoring to use "knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication."
"Worse," a trial court has held that a communication protected by the Pennsylvania law is one in which there is an expectation that it will not be recorded by any electronic device, rather than one in which there is a general expectation of privacy. Thus, the fact that a participant may believe he will have to reveal the contents of a communication, or that other parties may repeat the contents, does not necessarily mean that he would have expected that it would be recorded, and it is the expectation that the communication would not be recorded that triggers the wiretapping law's protections. Pennsylvania v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996), petition for appeal denied, 692 A.2d 564 (Pa. 1997).
Fortunately for Breitbart's BigGovernment.com and Fox News, the United States Supreme Court recognized constitutional protection of "an otherwise innocent disclosure of public information" in Bartnicki v. Volper, 532 U.S. 514 (2001). That case involved both the federal and Pennsylvania laws against surreptitious recording. It was held that a publisher who has lawfully obtained information from a source who obtained it unlawfully may not be punished by the government for the ensuing publication based on the defect in a chain.
BUT... the law is that neither professional nor amateur journalists are above the law prohibiting surreptitious recording. Footnote 19 to the majority opinion in Bartnicki v. Volper states: "Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. 'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."
There are some exceptions under Pennsylvania law in Section 5704, but none applicable.
Subsection (4) states: "A person, to intercept a wire, electronic or oral communication, where all parties to the communication have given prior consent to such interception."
Thus, if a crime was committed in trying to expose ACORN criminality, it seems that even subsequent consent would not absolve a person who committed the crime of criminal responsibility.
Pennsylvania law imposes both criminal and civil liability.
Section § 5725. Civil action for unlawful interception, disclosure or use of wire, electronic or oral communication.
(a) Cause of action.--Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person: (1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher. (2) Punitive damages. (3) A reasonable attorney's fee and other litigation costs reasonably incurred.
(b) Waiver of sovereign immunity...
(c) Defense.--It is a defense to an action brought pursuant to subsection (a) that the actor acted in good faith reliance on a court order or the provisions of this chapter.
Thus, the challenge to ACORN to consent to the release of the statements surreptitiously recorded at ACORN's Philadelphia office during the morning of July 24, 2009 seems to be based on civil liability concern.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.