Is this Being Recorded? O’Keefe Punk’d By ACORN Attorney

Remember that episode of Punk’d where Ashton Kutcher makes Justin Timberlake believe he owes $900,000 in back taxes? Right when you think Justin may cry, the ruse is revealed. Classic pop culture television in April, tax season, gives us a small reason to smile in relief that we don’t owe almost a million dollars to Uncle Sam (and that our close friends aren’t as serious pranksters).

Controversial filmmaker and political activist James O’Keefe is also smiling, but it’s still uncertain who will have the last laugh. Back in 2009, O’Keefe filmed employees of the Association of Community Organizers for Reform Now (ACORN) advising suspected participants in a prostitution scheme on ways to avoid lawmakers. Now, the attorney who represents one of those outed, former ACORN employees is claiming that O’Keefe’s actions have no protection under the First Amendment. Eugene G. Iredale, esquire, writes:

“Shows like Punk’d 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.”

Iredale’s critiques what O’Keefe would call “journalistic privilege” under the Constitution. The First Amendment states, “Congress shall make no law … prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press,” which certainly does not give immunity to the boundary-breaking actions of the media.

“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. O’Keefe is not immune from prosecution for breaking into an office or recording confidential communication because he calls himself a journalist,” Iredale continues in last week’s filing.

So, if your firm has plans to record telephone calls or in-person conversations (or plans to advise your clients on the same), it’s best for your associates to familiarize themselves—as O’Keefe should have—with the plethora of federal and state wiretapping laws that limit your power to do so. Under federal law, “one-party consent” means telephone calls and in-person conversations can be recorded with the consent of at least one of the parties (See, 18 U.S.C. 2511(2)(d)). Otherwise, if you are not party to the conversation, the other parties must be made aware that the conversation is being recorded. A dozen U.S. States require all parties to give consent to record a conversation. The “two-party consent” law applies in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Attorneys (and members of the press) in those states should thus take extra care, or face possible criminal and civil prosecution.[1]

Unfortunately for O’Keefe, in 100 percent of jurisdictions, recording private conversations to which you are not a party is illegal. And, in the world of WikiLeaks, courts are especially sensitive to First Amendment defenses. The fat lady may be singing. But, in California, O’Keefe should know better than to secretly record that song.

The article discussing O’Keefe’s case is here.

-WB

[1] http://www.citmedialaw.org/legal-guide/recording-phone-calls-and-conversations

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