Judge: No Constitutional Right to Secretly Record

A federal judge has rejected a First Amendment defense in the lawsuit brought by the national community organizing group Acorn, whose San Diego branch office employee was secretly audio and video recorded by two conservative activists conducting an undercover sting operation.

As reported by Maria Dinzeo for Courthouse News Service,

     Juan Carlos Vera claimed James O'Keefe III and Hannah Giles visited his office in August 2009, and conspired to create video and audio tapes of him, even after asking him if their conversation would be confidential. The Acorn acronym stands for Association of Community Organizations for Reform Now.
     O'Keefe and Giles are best known for going undercover to discredit organizations like Acorn and Planned Parenthood. In one encounter, Giles posed as a prostitute and O'Keefe as a pimp to videotape an Acorn employee offering advice on how to run a tax-free brothel for underage sex workers.
     The footage of Vera purportedly involved the pair seeking advice on how to traffick underage girls from Mexico to work as prostitutes in the United States. The California Attorney General's Office investigated Acorn in 2009, but ultimately found that the conversations, while "highly inappropriate," were not in violation of state criminal laws.
     In response to Vera's $75,000 lawsuit for violation of the California Privacy Act, Giles claimed she was not liable for the recording because O'Keefe was wearing the camera.
     U.S Judge M. James Lorenz disagreed, ruling that the law "is directed to the surreptitious recording of confidential communications and not the manner or method of recording the conversation." Given the meaning of the word "record," Lorenz found Giles equally responsible.
     Lorenz also rejected O'Keefe's motion for judgment on the pleadings, in which he argued that First Amendment protections for journalists supersede the California Privacy Act. Since there was a mutual understanding that the conversation was confidential, Lorenz found that the privacy law "is not an overbroad intrusion on exposé newsgathering in which O'Keefe participates."

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