Appeals court overturns verdict in undercover sting of Democratic operatives
A federal appeals court handed conservative activist James O’Keefe a significant legal victory Friday, tossing out a $130,000 judgment a Democratic consultant won against him over an undercover video sting tied to the 2016 presidential election.
The D.C. Circuit Court of Appeals said that award, which followed a 2022 jury trial, violated the First Amendment by muddling together the consequences of legal activity by O’Keefe and his group, Project Veritas, with unlawful aspects of its infiltration of the consulting firm, Democracy Partners.
The video, which Project Veritas released weeks before the 2016 general election, contended that Democracy Partners and its founder, Robert Creamer, were seeking to foment violence at Republican presidential nominee Donald Trump’s rallies. The presentation included footage obtained by Project Veritas operative Allison Maass who, the court said, lied about her identity in order to get an internship with the firm and surreptitiously record audio and video of meetings.
The video caused a minor stir at the height of the hard-fought presidential campaign, prompting a mention from Trump during a debate with Hillary Clinton. Creamer, the husband of Rep. Jan Schakowsky (D-Ill.), denied provoking violence, but the Democratic National Committee severed ties with him and his firm.
Creamer and his firm sued Project Veritas and O’Keefe, claiming illegal wiretapping, trespass, breach of fiduciary duty and fraud. At the 2022 trial, a federal jury in Washington awarded Creamer $120,000 for fraudulent misrepresentation. The jury also found the conservative activists liable for wiretapping, with a judge awarding $10,000 for that claim.
The case, like other suits over O’Keefe’s video stings, raised questions about the extent of First Amendment protections for undercover reporting based on subterfuge or deceit. Such tactics are currently rare in mainstream journalism, but as recently as the 1980s and 1990s, hidden-camera stories were a staple of some TV news shows and occasionally involved ruses.
In the ruling Friday, D.C. Circuit Judge Karen Henderson, a George H.W. Bush appointee, said the publication of the videos taken by Maass had no immunity under the First Amendment.
“Maass obtained that footage by subterfuge and the jury found that her conduct amounted to fraud,” Henderson wrote, joined by Judge Harry Edwards, a Carter appointee. “Maass infiltrated Democracy Partners on assignment from O’Keefe; just as she had no First Amendment right to gather this footage, he had no First Amendment right to publish it.”
However, Henderson, Edwards and Judge Robert Wilkins, an Obama appointee, agreed that the $120,000 award could not stand because much of the financial injury Creamer incurred was due to lawful undercover reporting Project Veritas did outside Democracy Partners’ offices.
Henderson and Edwards said the $120,000 verdict should be wiped out entirely because most of the harm done to the Democratic firm was attributable to video the conservative group gathered in other venues. Wilkins said he’d cut the damage award to “a nominal amount,” typically $1.
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