Breitbart has a problem: O'Keefe says that he visited Breitbart in late July 2009 (not on an unspecified day in August that might have post-dated the last of the surreptitious ACORN videos).
Yes, the "Pimp and Pro" ACORN story has been exciting and damaging to ACORN's public image and funding. But, ironically, it has allowed President Obama and Congressional Democrats to distance themselves from ACORN in the general public perception instead of "killing" ACORN and thwarting the implementation of the radical agenda promoted by ACORN, SEIU and La Raza.
First, the outrageous behavior shown on the "Pimp and Pro" ACORN videos involves some ACORN/ACORN Housing employees, NOT political corruption, the ACORN control group, Obama's history with ACORN or that radical agenda that ACORN man Obama, as President, has been determinedly and deftly trying to implement for ACORN, SEIU and La Raza. Fox has been the only major network to cover the story extensively. The focus of the story has been on the brilliant media strategy of Andrew Breitbart, publisher of the news portals Breitbart.com and Breitbart.tv, and the boldness of video stars, James O'Keefe, 25, a self-described progressive radical and an investigative journalist with no formal training previously noteworthy for stings on Planned Parenthood, and Hannah Giles, 20, a beautiful daughter of a minister who describes himself as "a big pain in the butt to people who dislike God and the USA." But, given the flaws in the planning and conduct of the sting, not even a brilliant rollout strategy made the story much more than it really is or remedied its serious legal problems (and an obviously frustrated Breitbart's foolish threat to release more materoal right before Election Day 2010 in order to induce United States Attorney General Eric Holder to investigate ACORN exacerbated a problematic legal situation instead of cowed General Holder).
The truth is that ACORN would rather have the focus of criticism of it on anything else than its subversive nature and corruption of America's political process in order to "fundamentally transform" America. Just as ACORN preferred to have the media reporting on ACORN employees trying to register Mickey Mouse and the Dallas Cowboys offensive linemen (making ACORN seem to be inept and comical instead of a genuine danger to the Republic), ACORN would much rather deal with even a sensational expose of ACORN/ACORN Housing representatives trying to facilitate prostitution, child abuse, illegal immigration, bank fraud, tax fraud and such instead of an expose focused on ACORN's subversive nature and political corruption, long status as an unofficial arm of the Democrat Party, connections to Obama and illicit coordination with the Obama presidential campaign. The "Pimp and Pro" story apparently has been good for Breitbart's business, Fox News ratings and the Q ratings of Breitbart, O'Keefe and Ms. Giles. But the Republic remains in grave peril of the "fundamental change" Obama promised his radical supporters.
The truth is that ACORN can survive "small stuff," as a recent article by Kyle Olson posted at Breitbart's BigGovernment. com sadly acknowledged.
"The reality is, as with ACORN’s sham 'independent' investigation and subsequent report, ACORN is calling on its friends and allies in its time of need and peril. And man, are they delivering.
"Bill Quigley, the legal director of the Center for Constitutional Rights, was quoted by Fox News as saying, 'It’s a resounding victory for ACORN. I’d be surprised if the government decides to appeal.'"
ACORN's "resounding victory" was Judge Nina Gershon's issuance of a preliminary injunction against defunding of ACORN. Judge Gershon ruled that ACORN had raised a "fundamental issue of separation of powers" after being "singled out by Congress for punishment that directly and immediately affects [ACORN's] ability to continue to obtain federal funding, in the absence of any judicial, or even administrative, process adjudicating guilt."
ACORN is not fit to receive federal contracts and funds, because it is subversive and corrupt, but don't expect the Obama administration to say so. The real problem is not Judge Gershon's interpretation of the scope of the constitutional ban on bills of attainder. The problem is that ACORN's Obama is in control of the United States Justice Department as well as the rest of the Executive branch, the legislative branch (Congress) is not entitled to adjudicate guilt and the United States Justice Department determines whether or not to assert criminal charges and thereby give the Judicial branch a chance to adjudicate guilt. The Obama administration surely should investigate and prosecute ACORN, but that's about as likely as it was that then United States Attorney General Robert Kennedy would have investigate and prosecuted his brother the President.
Olson's right about that investigation and report and ACORN's well-positioned friends delivering for ACORN, but his suggestion that Congressman Jerrold Nadler, a prominent ACORN backer, might have "fixed" the case is speculation not supported by any evidence in his article and thus should not have been made.
Olson: "Is it possible Nadler could have told Schwartz something along the lines of, 'have I got a federal court for you…!' Is it?"
The truth is that the case was brought in the United States District Court for the Eastern District of New York (the district in which one of ACORN's three national headquarters is located and the one closest to the office of ACORN's general counsel) and Congressman Nadler was not in a position to have the case assigned to Nina Gershon, a senior judge.
Also, wishful thinking notwithstanding, Judge Gershon's ruling was NOT unreasonable. (I warned of the constitutional problem in "Is De-funding ACORN Constitutional?" (September 21, 2009) (http://www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=090921) ("Hopefully, Americans agree that ACORN should be exposed, investigated, prosecuted and punished as appropriate, but only in accordance with the Constitution" and "ACORN is a criminal enterprise, a corrupt unofficial arm of Congressman Nadler's political party and a slimy, subversive disgrace, but this time Congressman Nadler has a genuine legal argument!") and "ACORN Defunding Suit Is NOT Bogus or Frivolous" (November 13, 2009) ("ACORN's lawsuit is NOT bogus or frivolous. There is a plausible legal argument for ACORN to make.").
Second, the liberal media establishment is so unconcerned with the "Pimp and Pro" ACORN story that it has not scrutinized it and if it does, that will distract from ACORN subversiveness, corruption and criminality. Conservatives should not only tell the truth and eschew illegal tactics because they are the right things to do, but also because they are not as adept as the Far Left in lying and law-breaking. (It appears that in six of the eight cities in which O'Keefe and/or Ms. Giles surreptitiously videotaped, surreptitious videotaping is illegal.)
Third, not long after the "Pimp and Pro" ACORN story broke on September 10, 2009, the Obama administration declared Fox News to be an opponent instead of a news organization and eventually, to use the word Fox News's Bill O'Reilly chose, "detente" was reached.
National Journal's Stuart Taylor astutely wrote in a pre-Election Day 2008 piece titled "“The media can no longer be trusted to provide accurate and fair campaign reporting and analysis" that he "longer trust[ed] the major newspapers or television networks to provide consistently accurate and fair reporting and analysis of all the charges and countercharges," even though we are "in an era when the noise produced by highly partisan TV hosts and blogs creates a crying need for at least one newspaper that we can count on to play it straight.”
Unsurprisingly, The New York Times (for which Taylor was legal affairs reporter from 1980-1985 and Supreme Court reporter from 1985-1988 in the Washington bureau) has not taken his wise words to heart, repented its blatant partisanship and played it straight as to such TV hosts as Chris Matthews and Keith Olbermann and there is still "a crying need...to play it straight."
We need all media to play it straight, not just one newspaper.
For example, the American people need to know the whole truth about Obama, ACORN and the "Pimp and Pro" ACORN story.
Instead of relying on the truth, the whole truth and nothing but the truth, some critics of Obama and ACORN have tried to come up with a better narrative. But trying to out-Alinsky Alinskyites is surrender to pollution, not an acceptable solution.
On September 10, 2009, Andrew Breitbart's BigGovernment.com debuted and the "Pimp and Pro" ACORN story broke on that site.
"When James O’Keefe came to my door in August, I was shocked by how young he looked. Kinda like Matthew Modine circa 'Vision Quest.'
“'Come on in,' I said, and I took him to my basement command center. He opened his laptop computer and showed me the very-hard-to-believe independent film investigative journalism project he had described to me over the phone.
"How can I describe the video I watched? Is it a put on? I almost can’t believe what I am seeing. But with regards to ACORN, the Association of Community Organizations for Reform Now, I am quite cynical. So I do believe it."
The admittedly cynical Breitbart added: "What is immediately clear to me is that James is passionate and wants to expose corruption. As is his gutsy partner in exposing crimes, Hannah Giles. James is like me: he’s idealistic, right–leaning, and doesn’t pretend he’s a neutral and objective journalist. (No one’s 'objective.')"
Is objectivity (aka complete truthfulness) too much to expect?
George Washington, in his Farewell Address, stated: "I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy." Obviously Breitbart is no George Washington, but we can give Breitbart credit for admitting that we should not expect objectivity from him.
In his first BigGovernment article Breitbart also shared some of his advice to O'Keefe:
"But I also know how my journalist friends are going to react. And so my advice to James is this: You can put this thing out your way, but you should also offer the full audio and full transcript so that people can hear and see them in their entirety – sans edits. So they can judge for themselves.
"James agreed and has posted them on his website...."
A reader would think that O'Keefe came to Breitbart with sensational video and Breitbart merely advised that in addition to putting out edited video, O'Keefe should provide "full audio and full transcript."
But apparently Breitbart greatly understated in that article his role in the "Pimp and Pro" ACORN sting.
Only God and Breitbart know for sure.
It appears that in his article Breitbart postdated his meeting with O'Keefe and left out an important part of his advice.
"When...O’Keefe came to my office to show me the video..., he sought my advice....
"I...explained that the mainstream media would try to kill this important and illuminating expose about a corrupt and criminal political racket, and that the well-funded political left would go into 'war room' mode, with 25-year-old Mr. O’Keefe and 20-year-old cohort Miss Giles in the cross hairs. I felt I had a moral obligation to protect these young muckrakers from the left and from the media, and to devise a strategy that would force the media’s hand.
"Once the American public saw with its own eyes the grotesque, common practices of ACORN’s housing offices, Mr. O’Keefe and Miss Giles could no longer be a legitimate focus of media scrutiny. Kill the messenger doesn’t work with the American people when they realize that the message is so devastating and honest. I think the video exposed the misuse of public funds and systemic manipulation of the tax code in the name of 'helping the poor.'
"If Mr. O’Keefe dumped the videos on YouTube, the political powers would have killed the expose before it got traction. I half-joked that he should secretly tape pitching the major television networks exclusive use of his videos for their nightly news broadcasts. But a simpler, less controversial method proved as fruitful.
"I told him that in addition to launching his compelling and stylized Web videos, we needed to offer the full transcripts and audio to the public in the name of transparency, and to offer Fox News the full footage of each video before each was released. We had to devise a plan that would force the media to see the evidence before they had enough time to destroy these two idealistic 20-something truth seekers. Mr. O’Keefe agreed to post the full audio and full transcript of his video experiences at BigGovernment.com.
"Thus was born a multimedia, multiplatform strategy designed to force the reluctant hands of ABC, CBS, NBC, the New York Times and The Washington Post.
"Videos of five different ACORN offices in five separate cities would be released 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."
"We had to devise a plan"!
So at that meeting (if not earlier) Breitbart agreed to plan together on an ACORN expose.
That's just wonderful, if the planning was completely lawful.
Unfortunately, most of the ACORN offices targeted are in states that criminalize surreptitious recording (including Breitbart's California).
If O'Keefe had finished his last surreptitiously videotaped visit to an ACORN office (the San Diego office on August 18, 2009) and THEN visited Breitbart in his basement seeking strategic advice for the first time, under the law Breitbart and BigGovernment.com clearly would not be subject to prosecution in California for either surreptitious videorecording or reporting what was surreptitiously recorded.
In Bartnicki v. Vopper, 532 U.S. 514 (2001), a case that involved both the federal and Pennsylvania laws against surreptitious recording, the United States Supreme Court 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.
Bottom line: Breitbart, BigGovernment and Fox News appear to be safe in publishing the "Pimp and Pro" story, because, in the words of the majority opinion in Bartnicki v. Vopper, the interest in "removing an incentive for parties to intercept private conversations--does not justify applying" a statute prohibiting surreptitious recording "to an otherwise innocent disclosure of public information."
Of course, if BigGovernment.com and/or Fox News are NOT "otherwise innocent," then Ms. Giles and Mr. O'Keefe will have company on the legal hot seat.
Neither media organizations nor professional or amateur journalists or filmmakers are above the law.
Footnote 19 to the majority opinion in Bartnicki v. Vopper 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)."
Breitbart has a problem: O'Keefe says that he visited Breitbart in late July 2009 (not on an unspecified day in August that might have post-dated the last of the surreptitious ACORN videos).
Late July would be after the stings at the ACORN offices in Philadelphia (July 24 AM), Baltimore (July 24 PM) and Washington, D.C. (July 25), but before the stings at the ACORN offices in New York (August 4), Los Angeles (August 17), San Bernardino (August 17) and San Diego (August 18).
When O'Keefe and Breitbart first met (according to O'Keefe), O'Keefe had not done any surreptitious videotaping of west coast ACORN offices and did not have enough east coast videos to implement the plan Breitbart admittedly recommended: "Videos of five different ACORN offices in five separate cities would be released on five consecutive weekdays over a full week – Baltimore, Washington, New York, San Bernardino and San Diego."
New York, San Bernardino and San Diego videos had not been made.
A constitutional statute is the law, whether we like it or not.
Will California Attorney General (and probably again California Governor to be) Jerry Brown be prosecuting Breitbart in connection with the surreptitious videotaping in Los Angeles, San Bernardino and San Diego?
On November 30 2009, the BigGovernment editorial panel (aka "Publius") posted "REVEALED: ACORN, NBC Worked Together in ‘Undercover Video Sting’' and exposed the hypocrisy of the liberal media establishment.
"Since the undercover ACORN videos from James O’Keefe and Hannah Giles first broke, the grand pooh-bahs of journalism have gone into self-absorbed philosopher mode. Rather than report on the ACORN corruption playing out before our eyes, 'journalists' have tsk-tsked their way through thousands of words and yards of column inches making certain that everyone understands that what James and Hannah did IS…NOT…JOURNALISM. (As if that is the existential question to make sense of the ACORN videos.) Undercover videos and assuming fake identities are things real journalists do not do…except when they do.
"Below is a page from ACORN’s 2005 Annual Report. In it, they tell the story of how one of their employees teamed up with NBC Dateline to do a ‘video sting’ on tax-preparer Jackson Hewitt."
What Publius did not mention was that the surreptitious recording on which an ACORN employee and NBC's Dateline teamed up was LEGAL where it was done (Texas).
One-party consent suffices in about three-quarters of the states, but not in four of the five states in which the "Pimp and Pro" ACORN sting was conducted (Pennsylvania, Maryland, California and Florida).
In those states in which all parties must consent to recording, there simply is no exception for well-meaning journalists or investigators or videographers or masterminds, be they old or young, black or white, liberal or conservative, Republican or Democrat, professional or amateur.
John Stossel, formerly with ABC and now with Fox, knows about this annoying legal impediment to investigation in some states.
About a decade ago, charges against him were dropped in Maryland, but for lack of admissible evidence, not because he was a well-meaning investigative journalist.
Baltimore Sun critic David Zurawik explained in “ACORN precedent: John Stossel once charged in Baltimore secret taping case” (September 12, 2009):
“Amid all the conflicting reports on cable TV and the Internet as to whether or not the filmmakers who secretly taped two ACORN employees in Baltimore violated any law, let me add one historical fact that might bring a bit of clarity and context to the discussion.
“The Baltimore State’s Attorney’s office has brought felony charges in the past for what was alleged to be essentially the same act as that committed by James O’Keefe and Hannah Giles, the two who did the secret taping at ACORN.
“And one of the five persons whom the state’s attorney’s office charged in the past was John Stossel, the TV news journalist who this week made headlines for another reason by leaving ABC News to join the Fox News Channel.
“I know this because I was one of two journalists who was believed to have heard Stossel allegedly admit that ABC News had violated the secret taping statute and was subpoened to testify at the trial. The case was reported in the ‘New York Times.’
“Throughout this short holiday week, I was locked into other print stories for the paper on tight deadlines, so I hadn’t been able to focus on the ACORN hidden camera story. But when I finally got a chance to dig into this one late Friday, I have to admit that I was surprised that the Stossel case had not come to light during the last three days of online heat as the videotape shot by O’Keefe and Giles played on the Fox News Channel and across the Internet.
“The two had posed as a pimp and prostitute seeking advice from ACORN employees in Baltimore on how to dodge tax and other laws. Their hidden-camera video tape shows that encounter with the two employees who do not appear to know they are being taped….
“The Stossel case happened in 1996, when, according to the charges filed, an ABC News producer, Deborah Stone, who worked with Stossel visited a Baltimore medical doctor posing as a patient who might be suffering from ‘multiple chemical sensitivity,’ one of the specialties of the medical provider, Dr. Grace Ziem. Stone was accompanied by her sister-in-law, who also posed as a patient.
“According to the ‘Times’ account of the charges,…Dr. Ziem ’suspected they were “fake patients,” but ‘was not aware that she was being recorded’ at the time.
“(I am using the ‘Times’ account, because once I was subpoened, I was no longer reporting the story and was advised to talk only to the attorney whom the ‘Sun’ provided….
“According to the ‘Times,’ Dr. Ziem was subsequently approached by Stossel about being interviewed for a show about ‘debates in medicine.’ She agreed, but became suspicious after ‘being tipped off by a colleague that Mr. Stossel has said he was doing a special on “junk science”…’
“Dr. Ziem agreed to…meet Stossel in a Baltimore hotel, but instead of a willing interview subject, what Stossel and his crew found was an assistant of Dr. Ziem’s and two reporters he had contacted to witness what Stossel was up to. It was intended to be a reverse sting, if you will. The other reporter was Fern Shen, then of the ‘Washington Post.’
“Long story short, the case hung on what Stossel and his producer are alleged to have said to me and Shen when he and his producer came out of the hotel room after he realized what Dr. Ziem’s assistant was doing.
“Here is how the ‘Times’ reported it: ‘Mr. Stossel… and Ms. Stone spoke outside the room with two reporters. It was in this conversation, Dr. Ziem charged, that Mr. Stossel and Ms. Stone said they had recorded Dr. Ziem’s consultation with the two women.’
“I do not know anything about the dealings Shen and ‘Post’ had with the State’s Attorney’s office, but I was advised that the conversation outside that room with Stone and Stossel was protected under Shield Law, a crucial and hard-won journalistic protection absolutely essential if the press is going to be free to operate without government control. You don’t waive that lightly. As a result, my attorney and I both advised the State’s Attorney’s office that I would not be testifying about that conversation despite the subpoena.
“As you can see from this post, I so value the principle behind Shield Laws that I still feel the conversation with Stone and Stossel should be protected — almost 13 years later.
“A preliminary hearing and a trial date were set in the case, but it was dropped before coming to trial.”
BigGovernment.com recently posted an article by Colby Hall suggesting that ACORN exposers James O'Keefe and Hannah Giles were "undercover correspondents" for that site.
I emailed for the author's address and the author emailed back.
I then emailed Hall for clarification, as follows:
"I read your article up at BigGovernment.com: 'Exclusive Interview: Andrew Breitbart Announces Launch of New 'Big' Sites" by Colby Hall | 12:42 pm, December 10th, 2009.
"The next to last paragraph states:'When Big Government launched back in September, it did so with what was arguably one of the biggest stories of the year — the ACORN scandal. Undercover correspondents for the site posed as a pimp and prostitute, successfully sought government assistance at various ACORN offices, and captured the whole thing on video. There were questions about the ethics of hidden camera reporting, and the representativeness of the videos of low-level workers with respect to ACORN on the whole. Nevertheless, it was one of 2009’s splashiest and most controversial news stories, it was an embarrassment to slow-to-act outlets like Breitbart’s reviled New York Times, which assigned an editor to watch Fox News after it was criticized for missing the story — and it was a crafty promotional tool that instantly got hundreds of thousands of readers to a site that had just launched.'
"'Undercover correspondents for the site'?
"The site being BigGovernment and Hannah Giles and James O'Keefe being the undercover correspondents?
"Your article suggests to me that Hannah and James were 'undercover correspondents' during their now famous visits to ACORN offices. (They don't seem to have been 'undercover' since September 10, 2009, but if they have been working undercover for BG since the 'Pimp and Pro' ACORN story broke, it should be a fascinating story!)
"It seems clear from Robert Stacy McCain that Andrew Breitbart was involved and strategizing before the last surreptitious videotaping.
"UPDATE: Rather than talk to a veteran conservative journalist -- I've got an e-mail address and have already interviewed Hannah's father, Doug Giles -- James O'Keefe tells his story to the liberal MSM:
'O'Keefe insists that he and Giles's work was done independently and rejects liberal suggestions that the videos were bankrolled by conservative organizations. He does, however, acknowledge receiving help and advice from a conservative columnist and Web entrepreneur.
'When O'Keefe had filmed the first two videos -- in the District and Baltimore -- a friend urged him to share his project with Andrew Breitbart, a conservative Internet entrepreneur who had plans to launch an anti-liberal site called BigGovernment.com. Breitbart said he was skeptical after a June phone call with O'Keefe about what he had, but when the video was rolling in his basement office in Los Angeles in late July, Breitbart said, he gasped.'
"The June phone call preceding the first visit to an ACORN office.
"Last July preceded all the visits to ACORN offices in California.
"In my state (New York), the secret videotaping was legal. (In DC too.)
"In California (and Pennsylvania, Maryland and Miami), all parties must consent to recording.
"So your article may have important legal implications."
Hall responded quickly to my request for his email address and to a follow up to my email set forth in full above. He requested and I provided clarification. I'm still awaiting a substantive response to my email set forth in full above. Hopefully, it will come and, despite Breitbart's assurance that "No one's 'objective,'" it will be objective. Let freedom ring, the truth prevail, and criminals go to jail!
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.