Citing ‘Punk’d,’ James O’Keefe Questions Calif. Recording Law In ACORN Sting Suit

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James O’Keefe has been all over the news this month for his sting operation targeting National Public Radio. His undercover videos have strengthened House Republicans efforts to defund NPR.

Meanwhile, the fallout from one of O’Keefe’s previous sting operations targeting the Association of Community Organizers for Reform Now (ACORN) is still playing out in federal court, where lawyers for the conservative provocateur are claiming a California law banning audio recordings without the consent of the other party is unconstitutional.A team of four lawyers is defending O’Keefe on a pro bono basis in the suit filed by one of O’Keefe’s targets, and they’re citing everything from the writings of James Madison to Ashton Kutcher’s MTV show “Punk’d” to a Woody Allen segment on “Candid Camera” to claim O’Keefe’s ACORN sting is protected by the First Amendment.

Lawyers for O’Keefe’s partner in the ACORN sting, Hannah Giles (who posed as a prostitute in the videos), are arguing that Giles shouldn’t be held responsible because she wasn’t the one doing the actual recording.

The suit was filed by Juan Carlos Vera, who was working at ACORN’s office in National City, California in August 2009 when O’Keefe and Hannah Giles came in and requested assistance. What happened next was partially captured in a YouTube video O’Keefe posted on Andrew Breitbart’s Big Government website a month later.

The video appeared to show Vera claiming he could help smuggle child prostitutes over the Mexican border and into the United States. ACORN, which has since folded as an organization after its federal funding was pulled, fired him the same day the video came out.

But an investigation by the California Attorney General later found that, like many of O’Keefe’s video sting operations, the video didn’t tell quite the full story. The AG found that the “language barrier, combined with the couple’s peculiar story, left [Vera] confused over whether the couple was serious about running a prostitution business and smuggling young girls into San Diego.”

“He felt the couple’s story was constantly changing and made little sense,” the AG wrote. Vera “went along with the conversation in hopes of getting information from the couple that he could provide to law enforcement in the event they were telling the truth” and according to phone records, immediately called his cousin Detective Alejandro Hernandez and left a message about his visit from some “crazy people.” He later tried to communicate with O’Keefe to get more information on their fake smuggling operation so police could open an investigation.

“These people are despicable. They’ve hurt his reputation,” Eugene G. Iredale, a lawyer representing Vera, told TPM in an interview. Iredale said Vera is still looking for employment, and that the selectively edited video in the NPR sting “absolutely” fits into a pattern for O’Keefe.

Iredale said he’d like to find out where exactly O’Keefe’s funding is coming from. “I just wonder who’s paying his legal fees,” Iredale said.

One of the lawyers, Christopher Hajec of the Center for Individual Rights, told TPM that his organization is representing O’Keefe on a pro bono basis because O’Keefe’s case stood out as a First Amendment issue. The Center has brought on Eric Gressler and Michael Madigan of the law firm Orrick, Herrington & Sutcliffe LLP to mount O’Keefe’s defense.

Hajec said there have been two other lawsuits against O’Keefe as a result of the ACORN sting operation — one in Baltimore and one in Philadelphia. They court dismissed the case in Maryland because of procedural mistakes, while both parties reached an undisclosed settlement in the case out of Pennsylvania.

In the California case, O’Keefe’s lawyers say that his recording of Vera is a protected newsgathering activity.

“Today more than ever, technological means unimaginable to the Framers of the Constitution have enabled people to engage in new forms of speech, expression (artistic, political, and other kinds), and petitioning and press activity,” they write.

Additional reporting by Ian Power-Luetscher.

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