In the lengthy ruling issued today in Democracy Partners, LLC v. O’Keefe, the decision was written by D.C. Circuit Judge Karen LeCraft Henderson and joined by Judge Harry Edwards:
James O’Keefe is the Founder and former CEO of Project Veritas, a non-profit media organization that gathers news “almost exclusively [through] undercover journalism” … [including] “open and secret audiovisual recording” ….
In spring 2016, Project Veritas assigned one of its investigative reporters, Christian Hartsock, to uncover leads on a potential story about voter fraud schemes in Wisconsin’s elections. Acting undercover, Hartsock infiltrated an election-watch party at a Milwaukee bar, where he encountered Scott Foval, a Democratic political consultant.
Using a false name and backstory, Hartsock convinced Foval that he worked for a fictitious political consultant group and that one of his clients was a “progressive philanthropist [with] a deep disdain for voter ID laws.” Hartsock told Foval that he was pursuing a “surrogate voter scheme[],” wherein his client planned to form a shell company in Wisconsin, recruit out-of-state voters and illegal immigrants, and issue them employer-IDs that would permit fraudulent voting in Wisconsin’s elections.
Foval regarded Hartsock’s plan as “brilliant” and offered “all this advice” on how to execute it. He suggested transporting fraudulent voters to polling places with rented or auctioned vehicles and recommended expanding operations to Michigan and Illinois. Foval also suspected that Hartsock’s unnamed client (who did not actually exist) was receiving guidance on the voter fraud scheme from Bob Creamer, a Democratic consultant in D.C.
Foval claimed that he “worked with Bob Creamer one-to-one all the time” and that Creamer was “somebody who hatches these ideas to people” on an “ongoing basis.” “One of the things we do,” Foval told Hartsock, is to “stage very authentic” protests at Republican rallying events using trained locals and “get them[] into a situation on tape … that we can use later.” Hartsock secretly recorded his entire conversation with Foval.
After the barroom discussion with Foval, Project Veritas shifted its focus to Creamer. Posing again as the fake consultant character, Hartsock persuaded Foval to arrange a meeting between Creamer and Hartsock’s fictitious client, a role played by Daniel Sandini—another Project Veritas reporter. An internal Project Veritas memo indicated that a primary objective of the meeting was to induce Creamer to advise Sandini on the pretend voter fraud scheme. A secondary aim was to uncover additional details about the staged protests at Republican rallying events.
Sandini met with Creamer several times in the summer of 2016 and secretly recorded each discussion. As Hartsock had done with Foval, Sandini fed Creamer an elaborate backstory fabricated entirely by him. He introduced himself to Creamer as “Charles Roth,” a real-estate millionaire and the son of a prosperous Hungarian immigrant who had built his fortune in American urban development. Feeling guilty that his father’s work had displaced minorities and immigrants, Sandini explained that he wanted to use his wealth to prevent Donald Trump from becoming President.
Believing Sandini to be a legitimate donor, Creamer asked him to fund several voter-outreach initiatives led by Americans United for Change (AUFC), a political consulting group that counted Creamer as a client. To preserve appearances, Sandini contributed $20,000 to AUFC with money supplied by Project Veritas. He also requested Creamer’s assistance with the surrogate voter fraud scheme in Wisconsin. Creamer politely declined.
Undeterred, Project Veritas took steps to infiltrate Creamer’s political consulting firm, Democracy Partners. Project Veritas reporter Allison Maass was assigned to the task. Building on the Charles Roth storyline, Maass assumed the persona of Roth’s imaginary niece, Angela Brandt, a young twenty-something with a budding interest in politics. Sandini, playing the Roth role, asked Creamer if he had any work for Maass, and Creamer indicated he was open to hiring her as an unpaid intern at Democracy Partners’ Washington, D.C. office.
Creamer’s screening of Maass was cursory. He did not request her to present any legal identification, a list of references, or a resume. After a “modestly-lengthy” telephone interview, Creamer offered her the position. When Democracy Partners eventually asked Maass for a resume to determine assignments, Maass submitted a counterfeit one….
Maass abruptly departed Democracy Partners in mid-October. Three days later, Project Veritas released the first installment of a three-part video series titled, “Rigging the Election.” … In the video, O’Keefe asserted that he had uncovered a “dark money conspiracy” aimed at inciting violence at Trump rallies and other Republican-sponsored events. The clip implied that Foval, Creamer and Democracy Partners were implicated in the scheme…. [For more details see the full opinion. -EV] Several clips drawn from Maass’s secret camera are also used in the video….
The fallout from the release of the Rigging the Election video was rapid and broad. Within days, reports spread across the media. AUFC dismissed Foval immediately. One of Creamer’s clients, the American Federation of State, County and Municipal Employees (AFSCME), also reviewed the video and terminated its consulting and services agreements with Creamer’s firm, Strategic Consulting. AFSCME had been AUFC’s primary donor at the time, and its then-president, Lee Saunders, sat on AUFC’s board. Following the video’s publication, Saunders withdrew from the AUFC board and AFSCME pulled its funding, leaving AUFC unable to operate and forcing it to terminate its contract with Creamer.
The court determined that Project Veritas’ actions were partly tortious and thus outside the protection of the First Amendment:
No matter how newsworthy a story may be, information that is published must have been lawfully acquired. And this rule applies to the press as well. Although the First Amendment does not require journalists to handle every situation with kid gloves, a press credential does not grant license to break the law. As a result, members of the media may not break into an office or residence to obtain news without consequences. They can be held liable for breaching a promise not to publish a source’s name, for recording and broadcasting copyrighted material without permission, and for intercepting and disclosing a private conversation. When generally applicable laws restrict the publication of truthful, newsworthy information and do so in a way that affects the press’s ability to gather and report the news, they do not offend the First Amendment merely because their enforcement has incidental effects on journalistic activity.
Applying this standard, we concur with Creamer that the First Amendment does not protect the video segments that O’Keefe obtained through Maass’s deception—specifically, the portions showing Maass inside Democracy Partners, interacting with Creamer and staff. Maass obtained that footage by deceit, and the jury found that her conduct constituted fraud. Moreover, this is not a case where the publisher obtained material lawfully from a source who had obtained it unlawfully. Maass infiltrated Democracy Partners on an assignment from O’Keefe; just as she lacked First Amendment protection to gather the footage, he lacked a First Amendment right to publish it.
Nevertheless, the court concluded that the damages award was likely tainted by a substantial portion of Project Veritas’ non-tortious, constitutionally protected activity:
Nevertheless, as Creamer concedes, “[m]ost of the contents of the [Rigging the Election] video did not even include or rely on any of Maass’s recordings.” The central thrust of the video’s narrative came from the secretly recorded exchanges between Foval and undercover Project Veritas reporters.
And to our knowledge, “no established rights [were] invaded in the process of creating” those segments. “There was no eavesdropping on a private conversation; the [Project Veritas reporters] recorded their own conversations with [Foval].” There was no trespassing—every Foval remark occurred in public settings. There was no theft of confidential business information—everything Foval said, he said willingly. Although the defendants lured Foval into these meetings through a complex web of deception, Creamer does not contend that conduct amounts to fraud.
Where does this leave the matter? The majority finds that most of the Rigging the Election material was protected by the First Amendment given the nature of the suit and Creamer’s decision to pursue it. Creamer acknowledges he is a limited-purpose public figure who sued for damages stemming from O’Keefe’s public release of the video. Because the video’s vast majority was lawfully obtained—and any injury stemming from its content concerned Creamer’s reputation—the First Amendment barred recovery for damages tied to the publication of that material unless the contents were false and published with actual malice. Since Creamer failed to prove either, the First Amendment shields much of the video from liability and any harm its contents caused falls outside the scope of a damages award.
The same cannot be said for the few portions portraying Maass’s secretly recorded interactions within Democracy Partners. Since Maass’s infiltration footage falls outside First Amendment protection, and because O’Keefe had no constitutional right to publish it, any damages Creamer sustained because of Maass’s footage may be recovered….
Consequently, the damages award could not stand as issued:
Because the damages were calculated as the total value of Creamer’s lost contracts with AFSCME and AUFC, the constitutional validity of the award depends on which elements of the Rigging the Election video led AFSCME and AUFC to cut their ties with Creamer. All parties agree that a factor in the decision was the video’s scandal-inducing news story, as presented through the constitutionally protected portions of the video. The parties also concede that a separate factor in the loss of contracts was the release of the footage showing Maass’s infiltration….
If it is undisputed that protected speech contributed to the damages award, the First Amendment requires the plaintiff to demonstrate that the defendant’s unprotected conduct was the proximate cause of the loss. The standard calls for more than showing that unprotected conduct occurred or even contributed to the damage; the plaintiff must show it was the sole, pervasive, or dominant force behind the harm. NAACP v. Claiborne Hardware Co. (1982).
Thus, the damages award cannot stand. We cannot say that any unlawful action by the defendants was the proximate cause of Creamer’s damages. In fact, the evidence indicates that the Rigging the Election video, rather than Maass’s infiltration, was the principal driver of AFSCME’s decision to sever its contracts with Creamer. Notably, Scott Frey, AFSCME’s government affairs director, testified that a “major factor” in the termination was “the video in itself.” He explained that the timing and optics of the video—released just weeks before a major presidential election—produced a perception of scandal that AFSCME wanted to distance itself from. The most straightforward way for AFSCME to dissociate itself from the unfolding story was to terminate Creamer’s engagement.
By contrast, Frey testified that Maass’s infiltration of Democracy Partners—as portrayed in certain excerpts of the Rigging the Election video—was merely a contributing “factor” in AFSCME’s choice to end its relationship with Creamer. After viewing the portions showing Maass inside Democracy Partners, AFSCME expressed concerns about Creamer’s due diligence in vetting his staff. Yet the overarching concern, Frey confirmed, was the video itself and its timing.
Finally, a brief excerpt from Judge Robert Wilkins’ partial dissent:
I agree with the Majority that Claiborne Hardware places limits on damages when the defendant’s conduct involves activity protected by the First Amendment. Following Claiborne Hardware, I believe the damages award on the fraudulent misrepresentation claim should be set aside. I write separately because I think the proper course is not to enter judgment for the Defendants, but to affirm the jury’s finding of liability for fraudulent misrepresentation and reduce the damages award to a nominal amount. In my view, opting for a different disposition would unnecessarily intrude on District of Columbia tort law….
See this post for another facet to this case.
Benjamin Barr and Stephen R. Klein represent O’Keefe and Maass.
