ACORN is NUTS

Why ACORN filed a lawsuit (complaint here) against Andrew Breitbart and the two conservative filmmakers (James O’ Keefe and Hannah Giles)  who video recorded ACORN employees giving advice as to how to classify underage prostitutes on tax forms (among other egregious acts)  is beyond me.  In an excellent post that everyone should read, Ken at Popehat blows holes through all of ACORN’s legal arguments (here).  I agree with his post in its entirety.  A few comments: 

I don’t see how any reputational harm the two former ACORN employees* have suffered has come from anything other than their own actions, and the video footage is pretty damning in that respect.  Furthermore, Ken’s points on ACORN seeking damages on the basis of harm to its own reputation are right on the money.  Discussing a precedent case,  Food Lion v ABC, a case involving the videotaping and reporting of unsanitary business practices at a Food Lion grocery store and the legal battle that ensued as a result, Ken writes:

Crucially, the court made it clear that Food Lion — which did not sue for defamation, but sought damages for harm to its reputation — could not use state law claims as a ruse to avoid First Amendment restrictions on defamation claims.

As ACORN is a public figure under the law, in order to seek damages to its reputation, the high standard established in the landmark First Amendment case New York Times v Sullivan applies here:

Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless “actual malice” — knowledge that statements are false or in reckless disregard of the truth — is alleged and proved.

From what I’ve observed, I don’t see where any factual errors or content defamatory of official reputation done with “actual malice” has taken place.  If I understand Ken correctly, even if the defendants (at least the filmmakers) are found guilty of violating Maryland state law with respect to liverecording conversations (also a questionable proposition), monetary damages will be limited to the nominal amounts described in the statute and nothing more. 

Also, The re-publication of material that may have been illegally obtained and is a matter of public interest is a First Amendment non-starter.  This tactic taken by ACORN’s attorneys rubs me the wrong way on a personal level, given my very, very, very strong views of the extent that the First Amendment protects the press and its ability to reproduce material that may have been illegally originated (by a third party) that serves a public interest (I’m biased since Justice Black’s concurring opinion in New York Times v United States is one of my personal favorites).   I took the same approach a few years ago against people who thought the New York Times violated the Espionage Act by publishing information related to the Bush Administration’s routine violations of the FISA statute “terrorist surveillance program”.  The same principles apply.

Ken’s legal analysis aside, which suggests that ACORN will not get the victory it is looking for, I don’t get what ACORN thinks it is getting out of this.  Ken writes:

 Filing a lawsuit against people who revealed such misconduct will not play well in Congress. Rather, it is likely that the suit will whip up anti-ACORN sentiment and doom any chances that ACORN will regain funding. Would you want federal funds to go to an entity that commits misconduct and then sues people who reveal it? Moreover, the suit will allow the defendants — if they don’t get out on a motion to dismiss — to use the discovery process to rampage through ACORN’s records in an effort to prove that any reputational harm to ACORN was a result of ACORN’s actual bad behavior being revealed. Does ACORN really want to roll the dice and count on getting a judge who won’t let the defendants delve deeply into their practices and into the bases for their reputation?

I don’t understand this either.   ACORN has already suffered from this.  The IRS and the Census Bureau have severed ties with the organziation.  Support for the group in Congress is dwindling and there’s the possibility that it will lose its federal funding.  Doubling down when the odds are against you is not the smartest idea.

* I find it very bizarre that they are even listed as plantiffs in the first place given ACORN fired them.  If either of the former employees are forced to testify, would this not create a conflict for ACORN’s lawyers ?