ACORN Sues Giles and O'Keefe

As expected, ACORN has filed a lawsuit against the undercover reporters who busted them wide open for assisting in the trafficking of underaged sex slaves. But it won't work, according to Leon Wolf at RedState:

I will keep this simple. Here is the text of the suit, which is brought under the MD Wiretap Act. The suit alleges that Andrew Breitbart, working in concert with O’Keefe and Giles, intercepted an “oral communication” using an electronic device, which would indeed be a violation of the act. The problem, however, is that the statute specifically defines “oral communication” in section 10-401(2)(i) as: “any conversation or words spoken to or by any person in private conversation.”

What this means, as established by the clear text of the statute (and Maryland caselaw, including Fearnow v. Chesapeake & Potomac Tel. Co. of Maryland, 342 Md. 363 (Md. 1996)) is that at least one of the parties to the conversation must have had a reasonable expectation of privacy in the conversation. In other words, if someone stands up in the town square and shouts out loud and someone else records it, that is not a violation of the act.

The problem for ACORN is that, as a matter of law, the employees at ACORN had no reasonable expectation of privacy in what they said to members of the public who entered their offices. As made clear by Katz v. United States and its progeny (made applicable specifically to the Maryland Wiretap Act by cases such as Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997)), “What a person exposes knowingly to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

Get that? The conversations in question were knowingly exposed in a place of business to two customers who walked in off the streets. There is and can be absolutely no expectation of privacy for the ACORN employees in question. As such, the conversations are not “private conversations” under the Maryland Wiretap Act as a matter of law. I found all this in a matter of 15 minutes on Lexis. I’m sure another 15 (which I don’t have) will find numerous directly applicable precedents under Katz that are completely factually indistinguishable from the present case. In other words, this case is so totally without legal merit the very filing of it is almost sanctionable. And putting “they had a reasonable expectation of privacy” in the complaint is not enough for this claim to survive summary dismissal; the court does not have to accept conclusory statements and legal conclusions.

Furthermore, to the extent that ACORN wants to go after Breitbart (and I hear they are wanting to go after Fox next!) for publishing this information of clear public concern, they might want to check the First Amendment jurisprudence of the United States Supreme Court on that question before getting themselves in further trouble.

The one concern I have with this is that the courts are, as you know, notoriously lib-friendly. Unless the judge who oversees the case is one appointed by Bush or Reagan, it is possible that he or she will somehow twist the law into saying something it doesn't say. Happens all the time, with activist judges.

Still, we can hope that Wolf is right. If it does proceed, I'm certain there will be a massive outpouring of cash for Giles' and O'Keefe's defense fund.

There's my two cents.