A lawyer for a former employee of the Association of Community Organizers for Reform Now (ACORN) who was secretly recorded by James O’Keefe is calling bull on O’Keefe’s claims that the First Amendment protected his actions.
Four lawyers representing O’Keefe on a pro bono basis cited everything from the writings of James Madison to Ashton Kutcher’s MTV show “Punk’d” to claim that O’Keefe’s tactics were protected by the First Amendment.
But Eugene G. Iredale, a lawyer for Juan Carlos Vera (an ACORN employee who was fired after O’Keefe posted a video that Iredale says was misleadingly edited) isn’t buying it.
Shows like “Punk’d,” writes Iredale, “not only obtain the participant’s release to air the shows but they are filmed in public places and often involve public figures. It would hardly be ‘artistic freedom’ for a television crew to sneak into a person’s house and surreptitiously record them in a confidential conversation. That is not what takes place on Punk’d or other shows like the Jamie Kennedy Experiment. A television show does not have open license to commit crimes in the name of high ratings or artistic freedom.”
Claiming he’s a journalist shouldn’t buy O’Keefe any wiggle room either, writes Iredale.
“There is no special or disparate treatment accorded ‘expose journalism’ under the Constitution. Any bully or a felon dressed as a telephone repairman can claim to be a ‘journalist’ after committing a crime,” Iredale wrote. “O’Keefe is not immune from prosecution for breaking into an office or recording confidential communication because he calls himself a journalist.”
Iredale also writes that O’Keefe’s claim that the California statute penalizes the use of video technology by individuals with their families — like “a husband who, seeking to
preserve a spontaneous and unselfconscious family moment, surreptitiously turns a video
recording device” on his wife — is “creepy in the extreme.”
“If the situation is such that a woman has a ‘reasonable expectation of privacy’ in her own home, the husband certainly should not have the right to secretly turn a recording device on his wife,” Iredale writes. “No doubt there have been numerous people who believed in their constitutional right to preserve a special moment. There have been a number of occasions in which a person ‘seeking to preserve a spontaneous’ moment surreptitiously recorded the parties’ engaging in sexual conduct. Courts across the country have uniformly found that those people committed crimes.”
The whole filing is available here.