Topic category:  Government/Politics

Last September BigGovernment.com debuted with a videotape of a visit to ACORN's Baltimore office by Hannah Giles and James O'Keefe on July 24, 2009. ACORN employees were surreptitiously recorded for that video as well as a video of a visit to ACORN's Philadelphia office earlier that day, a visit to ACORN's Washington, D.C office the next day, a visit to ACORN's New York office on August 4, visits to ACORN's Los Angeles and San Bernardino offices on August 17, 2009 and a visit to ACORN's San Diego office on August 18, 2009.

Will the surreptitious recording in Los Angeles, San Bernardino and San Diego result in criminal prosecution and, if so, which person or persons and what legal entity or entities will be prosecuted?

BigGovernment.com's Andrew Breitbart admittedly masterminded the roll out of the ACORN videos.

Robert Stacy McCain, September 18, 2009 (http://rsmccain.blogspot.com/2009/09/fired-acorn-baltimore-workers-to-sue.html), reported that O'Keefe discussed the sting on ACORN with Breitbart in last June and showed Breitbart the Baltimore and D.C. videos at Breitbart's home in Westwood, California in late July (before the targeting of three California ACORN offices): "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."

When it comes to surreptitious recording, BigGovernment.com has a big problem with surreptitious recording of reporters by the former communications director for California Attorney General Jerry Brown, but no problem with the surreptitious recording that resulted in the "Pimp and Pro" ACORN videos.

The law is supposed to be administered impartially. As the judicial oath explicitly states, the law is no respecter of persons: “I … do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States, so help me God.”

In law school, students are advised to pound the facts when the facts are favorable, pound the law when the law is favorable and pound the table when both the facts and the law are unfavorable.

Now BigGovernment.com is pounding California Attorney General Jerry Brown.

Is THAT foolish...or smart strategy?

Time will tell.

General Brown just referred the matter of his former communications director surreptitiously recording some conversations with reporters to the district attorney of Alameda County, California. (The person lost his job, but has not been prosecuted.)

That may signify that General Brown is preparing to prosecute Hannah Giles and James O'Keefe, the stars of the "Pimp and Pro" ACORN videos, and anyone else legally responsible for the surreptitious recording in California.

Ralph Waldo Emerson did not say that "consistency is the hobgoblin of little minds." He actually said that "a foolish consistency is the hobgoblin of little minds."

Whether brilliantly or foolishly, Big Government has not been consistent on surreptitious recording.

BigGovernment (http://biggovernment.com/2009/11/17/calif-d-a-brown-will-face-independent-investigation-for-secretly-recorded-conversations/):

"A letter from California District Attorney [note: actually Attorney General] Jerry Brown has surfaced that deals a tremendous blow to sham internal investigations everywhere. Brown, also a California gubernatorial candidate, has requested the Alameda County district attorney look into secret tapings his office conducted with five different news reporters on six different occasions. California is what’s known as a 'two-party state,' that is, it is illegal to record someone without their consent. Brown’s former communication director recorded the conversations and has since resigned; still the Attorney General’s office has asserted secretly recording news reporters is legal if it is for public use.

"Brown’s office announced an internal investigation into the matter and was roundly condemned by the right for undertaking a case in which it has a vested interest.

"Brown’s position on the recordings strikes the Big Government editorial panel as arrogant. First, the Attorney General is in the process of investigating the ACORN filmmakers for violating laws about secret tape-recordings while conducting similar recordings himself… repeatedly. Second, Brown conducted an internal investigation on himself (much like John Podesta of Media Matters and Andy Stern of the SEIU conducting the internal investigation of ACORN) for nearly three weeks before he solicited a third party. And judging by the wording in the attached letter, Brown seems none too happy to pass that duty elsewhere.

"Much like the internal investigations movement, Brown might be hurting right now. Stay tuned…"

Good advice!

BigGovernment's claim that "the Attorney General’s office has asserted secretly recording news reporters is legal if it is for public use" greatly overstates the position of the California Attorney General's office.

The California Attorney General's office did issue a statement denying that the surreptitiously recording by the former communications director was not a crime. But that statement reported that the highest-ranking criminal lawyer in the office had concluded the law only prohibits the recording of a "confidential" communication without consent and since the surreptitiously recorded conversations were "on the record" interview, the communication was not "confidential."

If only all of Ms. Giles and Mr. O'Keefe's surreptitiously recorded conversations with ACORN employees could be classified as equivalent to "on the record" interviews of a government official's spokesperson by reporters!

IF General Brown decides to prosecute the surreptitious recording in California on which three of the ACORN videos are based, can it be successfully argued that the surreptitiously recorded conversations were not "confidential communications"?

The transcript of their San Diego sting suggests that argument is not a winner:

James: "Wait. Before you before you begin can you this is confidential right?"

Juan Carlos: "Yeah."

James: "Thank you."

Eden/Hannah: "it's like, it's not being recorded or anything?"

Juan Carlos: "No. No. No. [unintelligible]"

It sure seems that "Juan Carlos" reasonably believed that he was not being recorded or overheard.

That strange woman at ACORN's San Bernardino office who claimed to have killed her husband likewise seems to have reasonably believed that she was not being recorded or overheard.

Likewise as to the ACORN employee in the Los Angeles office who won the James O'Keefe "ACORN Employee of the Year" award for refusing to facilitate underage prostitute (although facilitating adult prostitution had not phased him).

Unfortunately (I believe one-party consent should be lawful), the California law on surreptitious recording is NOT independent intrepid investigator-friendly.

In Flanagan v. Flanagan, 27 Cal. 4th 766, 41 P.3d 575 (Cal. 2002), the California Supreme Court established the applicable California law and chose a standard to afford maximum privacy. Surreptitious recording is illegal if any party to the communication reasonably believed the communication is not being recorded or overheard.

http://www.gannett.com/go/newswatch/2002/april/nw0405-8.htm:

"California's Invasion of Privacy Act prohibits the recording of 'confidential communications' unless all parties to the conversation consent. The California lower courts have reached different conclusions about what constitutes a 'confidential communication.' Some have endorsed the view that 'a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties.' Under this reading of the statute, a news source who knows he or she is talking to a reporter generally expects that the contents of the conversation will be disclosed -- unless there is a promise of confidentiality, of course. Thus a reporter would have been able to record such a conversation without first obtaining the source's consent.

"The California Supreme Court rejected this definition, however, holding that a conversation is confidential if a party to that conversation 'has an objectively reasonable expectation that the conversation is not being overheard or recorded,' regardless of whether a reasonable person would expect the contents of that conversation to be divulged to others."

Ironically, the case involved "a bizarre set of facts" that calls to mind the strange ACORN employee to whom Ms. Giles and Mr. O'Keefe spoke at ACORN's San Bernardino office, but it did not involve politics.

http://www.gannett.com/go/newswatch/2002/april/nw0405-8.htm:

"In 1995, a California woman told her manicurist that she wanted to have her husband killed and confided that she had been injecting him with water instead of his prescribed medicine. The concerned manicurist began to record her telephone conversations with the woman, and, in March 1996, played one of the tapes for the woman's stepson. The stepson shared the tape with his father, who then moved out of the family home. Within a year, however, he and his wife reconciled. When the man moved back home, his wife began to secretly record telephone conversations between her husband and stepson. Within a year, her husband was dead, and the litigation began.

"The woman sued her manicurist under the Invasion of Privacy Act for recording their telephone conversations. She also sued both the manicurist and her stepson for common-law invasion of privacy. The stepson counterclaimed, alleging that the woman had violated the privacy act by recording his telephone conversations with his father.

"A jury rejected the woman's claims but concluded that she had in fact violated the privacy act by recording conversations between her stepson and his father. The stepson received a verdict of $120,000 in statutory damages and $1.2 million in punitive damages. The trial court reduced the award, and the stepson appealed."

The case was remanded to ascertain the stepson's expectation.

http://www.gannett.com/go/newswatch/2002/april/nw0405-8.htm:

"Although the California case did not involve a media defendant, the ruling likely will be applied to reporters engaged in newsgathering. Under the new standard, the surreptitious recording of any conversation with a source -- even when the source knows he or she is talking 'on the record' to a reporter -- may give rise to liability under California's Privacy Act if the source later can show that he or she reasonably believed the conversation would not be tape recorded. If everyone participating in the conversation consents to the recording, however, then the act does not apply."

Will California courts create an exception for the ACORN sting, or professional journalists, or independent investigators?

For those interested in the law, Section 630 of the California Penal Code set forth California public policy on privacy as follows:

"The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.

"The Legislature by this chapter intends to protect the right of privacy of the people of this state.

"The Legislature recognizes that law enforcement agencies have a legitimate need to employ modern listening devices and techniques in the investigation of criminal conduct and the apprehension of lawbreakers. Therefore, it is not the intent of the Legislature to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date of this chapter."

Section 632 of the California Penal Code:

"1. 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, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

"2. The term 'person' includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

"3. The term 'confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

"4. Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

"5. This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

"6. This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear."

Section 633.5: "Nothing in Section...632...prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m. Nothing in Section... 632...renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith."

Will a surreptitious recording prosecution be defended on the ground that the surreptitious recording was for "the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m"?

Note: Section 653m targets anyone who, "with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family."

Time will tell.

Michael J. Gaynor

Biography - Michael J. Gaynor

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.

Gaynor's email address is gaynormike@aol.com.