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Friday, September 25, 2009

Lawyers: Anti-ACORN Filmmakers Gratuitously Broke California Law -- And are Vulnerable in Court

Posted By on Fri, Sep 25, 2009 at 12:01 AM

Many of you may be wondering why a pair of youthful, right-wing provocateurs with a sartorial taste in pimp 'n' ho outfits were able to film employees of ACORN unashamedly breaking the law while major media outlets sat on their hands.

Not to wholly excuse the press for leaving a legitimate story to hatchet men, but there is a good reason journalists didn't tote hidden cameras into ACORN offices. Conservative filmmaker James O'Keefe is facing a multi-million dollar lawsuit in Maryland - and, considering at least two of his now famous videos were shot here in California, this could just be the opening act. Local media law experts told SF Weekly that secretly taping a conversation -- as O'Keefe did -- is a blatant and unambiguous violation of state law.

In fact, Terry Francke, the general counsel for the open-government group CalAware, told SF Weekly that should ACORN opt to up the ante and take O'Keefe to court here in California as well, he cannot conceive of how the filmmaker could prevail. "I don't know how ACORN could lose this other than by making procedural mistakes," he said. He left out scenarios involving a rogue meteor, but his point is made.

In general, journalists have been wary of concocting false identities for themselves and "going Serpico" to bust wrongdoers for the past 17 years. Back in 1992, a North Carolina jury found in Food Lion's favor when the grocery chain alleged ABC employees committed fraud by lying to obtain jobs in the chain's stores.

But here in California, even above-board journalistic investigations are rather limited. The instances in which one can surreptitiously record a conversation in this state were greatly curtailed following the California Supreme Court's ruling in the 2002 case Flanagan vs. Flanagan (the court ruled for Flanagan - ha, ha, ha). That precedent-setting -- and nasty -- divorce case involved surreptitiously recorded phone calls. It resolved lower courts' disputes over whether a violation occurred if someone taped a conversation the non-consenting party had a reasonable expectation would "not be disclosed" or the more all-encompassing expectation the conversation would "not be recorded." The court opted for the latter.

Since one almost never has a "reasonable expectation" his or her words and image will be recorded -- even, arguably, when talking with a journalist -- this essentially rules out all situations in which the recording device isn't visible or the intent to record isn't disclosed. "Unless someone is holding a camera and pointing it at you, they're going to face potential liability for surreptitiously recording a conversation, even in circumstances that might previously have been permissible," says James Chadwick, a First Amendment attorney based in Menlo Park.

Regardless of what one thinks about conservative ideologues like O'Keefe (the Village Voice has reported that the filmmaker has a history of sponging off of wealthy conservative financiers ), First Amendment defenders mourn California's hidden camera laws. Francke notes that only journalists tend to respect these rules, as they're the only people who seem to be aware of them.

"I think anyone ought to be able to create a surreptitious video with audio of any sales pitch or declaration to strangers of services available," says Francke. "It's a very easy way to document abusive practices in either commerce or social services."

You don't say.

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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