Brad Friedman Byon 5/27/2011, 4:13pm PT

Rightwing activists and propagandists James O'Keefe and Hannah Giles, employees of con-artist and propagandist Andrew Breitbart, may not use the First Amendment as an excuse for breaking the law in California, according to a federal judge's ruling this week.

Judge M. James Lorenz rejected the defendants' argument and motion for summary judgment in federal court, as part of the civil lawsuit filed against them by former San Diego ACORN worker Juan Carlos Vera.

Giles had previously thrown O'Keefe under a bus by arguing that she should not be held accountable at all for violating California's Invasion of Privacy Act [CA Penal Code § 632], since he, not she, was actually wearing the hidden video camera used to secretly tape their conversations with Vera, even after they had asked if their meeting would be kept confidential.

For his part, O'Keefe, a convicted federal criminal, argued that he was allowed to violate the law because the U.S. Constitution's First Amendment protected him as a "journalist". The judge ruled against the defendants on all points...

According to Maria Dinzeo of Courthouse News Service:



...

[Lorenz ruled] 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. 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....[Lorenz ruled] 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."

"Exposé newsgathering" is not what O'Keefe traffics in, as demonstrated again most recently by, ironically enough, the "news" website of Fox "News" host Glenn Beck after a similarly deceptive and secretly video taped smear of an NPR employee by O'Keefe last March.

But O'Keefe's long track record of deceptive video hit-jobs was not at issue in this particular legal argument.

In his ruling [PDF], Judge Lorenz highlighted specific portions of the CA law which is violated by "Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication."

The ruling goes on to further cite the statute which reads "The term 'confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto."

"California's law is quite clear," Lorenz wrote in response to the First Amendment arguments by O'Keefe and Giles, "that persons who engage in news gathering are not permitted to violate criminal laws in the process."

O'Keefe and Giles were sued by Vera last summer, after an investigation by California's Attorney General found that the pair had likely violated the CA Privacy Act by secretly taping workers at ACORN. The duo were spared criminal charges for violation of the same law after bargaining for immunity in exchange for finally providing law enforcement with the unedited videos of their secretly taped meetings with ACORN employees.

After examining the unedited video tapes, the CA AG echoed all other independent investigations of the tapes published by Breitbart, to determine that they had been "severely edited" to present a false portrait of ACORN and of the meetings with workers there.

The AG found the CA ACORN workers "committed no violation of criminal law." Previously, a New York District Attorney investigation also found "no criminality" in the "highly edited" video tapes of ACORN workers there.

Similarly findings were also offered by a former Massachusetts attorney general and an investigation by the Congressional Research Service.

Vera, however, and other ACORN employees across the country, were fired by the organization shortly after Brietbart's publication of the falsely edited video tapes on his Rightwing political websites.

No employees of ACORN have been charged with any crimes in relation to the O'Keefe/Giles/Breitbart hit-jobs carried out during the summer of 2009 in which Breitbart and O'Keefe had purported to the media that he had played a pimp during meetings with ACORN to Giles, who was dressed as a prostitute during those encounters. In fact, ACORN workers had been told that O'Keefe, playing her conservatively dressed boyfriend, was hoping to rescue Giles from an abusive pimp who had been threatening her life and stealing her money. (One of the videos was deceptively edited to make it appear that ACORN workers had told Giles to bury her money in the backyard, so the government couldn't get at it for tax purposes. In fact, as the actual transcripts revealed, the worker was advising her on how to keep the abusive pimp from stealing it from her. Giles blatantly lied about that point on Fox "News.")

Their hoax was successful, however, resulting in the loss of federal funding for ACORN which led to a loss of private donations, eventually forcing the four-decade old community organization to close its doors.

ACORN had long been targeted by Rightwingers due largely to their years-long success in legally registering millions of legal low- and middle-income citizens to vote. Most such voters tend to vote for Democrats.

Despite persistent, yet evidence-free, claims by the Right over many years that ACORN participated in "voter fraud," there is no known evidence of even a single fraudulent vote ever having been cast in any election due to an improper registration by any ACORN worker.

The BRAD BLOG spent a fair portion of 2010 demonstrating to the New York Times and other media outlets that they had repeatedly misreported the story of the hoax carried out by O'Keefe, Giles and Breitbart. In fact, O'Keefe neither dressed as a "pimp,, nor represented himself as one in the secretly-taped meetings with ACORN workers, even as he famously lied to the public and media about having done so.

Following our numerous exposés, the NYTimes was eventually forced to issue corrections for some of their reporting after their Public Editor admitted both he and the paper had been "wrong" about O'Keefe's version of the story which they had reported uncritically.

In addition to the civil lawsuit O'Keefe and Giles are facing in San Diego, O'Keefe's high-powered Republican attorneys were able to obtain a plea deal for him in another case, in which felony counts were lowered to misdemeanor charges in exchange for his guilty plea.

That case involved a scam similar to the one carried out against ACORN. O'Keefe and his fellow conspirators were caught secretly taping federal employees at the New Orleans office of Sen. Mary Landrieu (D-LA) after entering the property under false pretenses and attempting to access her phone system.

For his part, admitted liar Breitbart is busy defending himself against a law suit brought by former USDA official Shirley Sherrod. She was fired after Breitbart published yet another deceptively edited video, purporting to serve as evidence that the African-American Sherrod was discriminating against white farmers in her role as a federal worker.

The unedited version of the tape demonstrated that Sherrod had been doing the complete opposite of what Breitbart attempted to illustrate her as doing.

Though an apology was quickly issued to Sherrod by the White House, they have never apologized for having defunded ACORN under the fraudulent pretenses knowingly presented to the public by O'Keefe, Giles and Breitbart.

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