Ken Klukowski: Defendants in ACORN Suit Could Be Protected by Constitution


ACRU Staff


September 29, 2009

This column originally appeared on Fox Forum on September 28, 2009.

The courts should vindicate the First Amendment rights of the reporters and media outlets involved in breaking the ACORN scandal wide open. And they should strike down the oppressive and absurd Maryland law that makes it a crime to record someone’s conversation without their knowledge.

ACORN and two of its workers caught on those now-famous tapes have sued those reporting on their chicanery for millions of dollars. The bad news is that the Maryland law at issue may well outlaw the taping and airing of that footage, but the good news is that the law should be declared unconstitutional in this case. And so the fight begins.

The intrepid duo of independent reporters James O’Keefe and Hannah Giles, working undercover, caught ACORN workers in Baltimore and other locations across the country on tape, talking about these workers’ willingness to help the undercover pair engage in tax fraud, housing fraud, prostitution, and even smuggling in underage girls from abroad to be prostitutes in a brothel that would be obtained with ACORN’s help. The news Web site, launched by media innovator Andrew Breitbart, broke the story nationwide, and other media outlets quickly picked up on the story.

These tapes are so incriminating that they created a national backlash against ACORN, with the Congress voting overwhelmingly to terminate federal money to ACORN and the U.S. Census telling ACORN that the group would have no role in the 2010 census. It was a devastating and potentially fatal blow against ACORN, which is already under investigation in 19 states, where at least 30 ACORN workers have pleaded guilty to crimes.

But there’s a problem. Maryland has a shockingly-broad law that makes it a crime–a felony, if fact–to record someone’s conversation without their knowledge. It then makes it a separate crime to disclose that conversation to a third party if the person disclosing knew or had reason to know that the conversation was illegally recorded.

Although the Baltimore prosecutor hasn’t filed charges, ACORN and the two workers caught on tape advising the reporters on how to carry out the underage sexual exploitation scheme have had the audacity to sue the reporters and They can do this because § 10-410 of the same Maryland wiretapping law also gives private parties the right to personally sue those who record or disclose such conversations.

So ACORN and these two workers, instead of being mortified for engaging in these shameful and disgusting conversations, are suing those reporting on them to the tune of two million dollars.

This, despite the fact that in a desperate damage-control stunt, ACORN’s CEO Bertha Lewis recently praised the reporters for bringing these facts to light, so that ACORN could clean its house. The hypocrisy and audacity here are so profound that it shocks the conscience.

This Maryland statute is insane. But it’s not only ridiculous, it could also be unconstitutional as applied to these defendants.

Our Founding Fathers knew that America desperately needed a media that could freely report without fear, and for every person to freely be able to share important information with others and discuss matters of public importance. These concerns are even more important when they involve the actions of government, such as giving millions or even billions of dollars to an organization. (ACORN has received $53 million, and is eligible to get $8.5 billion of stimulus money.) Those concerns are at the heart of the First Amendment guarantees of free speech and free press.

The Free Speech Clause of the First Amendment confers special protections. One of these is the overbreadth doctrine: A law targeting certain types of speech violates the First Amendment if it also burdens a substantial amount of speech that should be constitutionally protected. The court declares the law “overbroad,” and then strikes it down.

There are far fewer Free Press Clause cases, but generally the courts extend and apply free speech doctrines to cover the media as well. If anything, the media has additional protection, as it exists to inform “We the People” and enables “We the People” aka us to hold government accountable, as well as private entities.

So the defendants here should make sure their legal team includes experts in First Amendment law, and immediately raise a First Amendment defense. Having raised a federal issue, they should then remove this case from Maryland state court to the federal district court in Maryland.

If they don’t prevail in district court, they must take it on appeal to the Fourth Circuit appeals court. And, if not successful there, should petition the U.S. Supreme Court to intervene.

Laws must be obeyed in a nation under the rule of law. But such laws are null and void if they violate the Constitution. The First Amendment guarantee of freedom of the press is essential in American society, serving the critical role of bringing newsworthy information to light for the American people. That’s exactly what happened in this ACORN scandal.

The courts should vindicate the First Amendment rights of these reporters and media outlets, and strike down this oppressive and absurd Maryland law. They’ll be protecting all of us in doing so.



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