I'm pretty sure I can struggle my way out. First I'll just reach in and pull my legs out, now I'll pull my arms out with my face. – Homer J. Simpson, The Simpsons, Bart Gets An Elephant, 1F15
Weaseling out of things is important to learn. It's what separates us from the animals! . . . except the weasels. – Homer J. Simpson, The Simpsons, Boy Scoutz ‘N the Hood, 1F06
I provide these quotes because I can only assume that ACORN has retained Homer Simpson as its general counsel (R.I.P. Lionel Hutz) in what may be the most ill-considered lawsuit of all time. The cartoon patriarch doesn’t know when to quit and thinks that responsibility can always be shirked. After learning of ACORN’s decision to sue James O’Keefe, Hannah Giles, and breitbart.com for wiretapping, I concluded that the disgraced community organization shares Homer’s sensibilities.
Background: The Association of Community Organizations for Reform Now (ACORN) is an amalgam of several organizations and non-profits that serve low- and middle-income populations. ACORN’s support of Democratic candidates and Left-leaning policies, as well as allegations of financial and electoral misconduct, have earned ACORN the ire of conservatives.
Hannah Giles and James O’Keefe, two such conservatives with the backing of breitbart.com, punk’d ACORN by posing as a prostitute and pimp in need of housing and tax (evasion) advice. Giles and O’Keefe secretly videotaped their visits to several ACORN offices. In these tapes, employees appear to aid or at least not to object to the pimp’s trafficking of underage sex workers.
Now, ACORN has filed suit against the filmmakers and their patron in the Circuit Court for Baltimore, alleging violations of Maryland wiretapping law. Md. Cts. & Jud. Proc. Code § 10-410 creates a civil cause of action for violations of Md. Cts. & Jud. Proc. Code § 10-402, which makes it unlawful for any person to:
(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or
(3) Wilfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.
To which I say, ACORN have you lost your mind? This proceeding cannot make you whole and can only hurt you. Have you never heard of the Streisand effect? Expansive discovery? Public fundraising? Diversity jurisdiction? I feel like I’m taking crazy pills!
So let’s start off by marking the few factors in ACORN’s favor.
- ACORN could possibly prevail. It is never a good idea (unless you are the FBI) to secretly record individuals. Wiretapping and privacy statutes are around to prevent this behavior. (I seem to remember learning that very fact in a CMLP YouTube video starring a strikingly handsome gentleman in a blue shirt. For a quick primer on interviewing, give it a watch.) Plus, Maryland is a two-party consent state, meaning it is unlawful to record a conversation without the consent of all parties involved, which was lacking here.
- Baltimore is fairly liberal and is populated by the very demographic that ACORN endeavors to serve. (But this isn’t going to matter, read on).
- Maybe the employees sensed the joke and were just playing along AND maybe that fact will somehow come out during discovery or trial.
Now to touch on all the reasons why this suit is a bad idea:
The Streisand Effect: ACORN cannot help but look like a bully in this action. Media coverage will be enormous. The Internet hoards love an underdog and commentators adore the “another example of out of control lawsuits” angle. All this suit will do is draw attention to ACORN and its (possible) misconduct. This little fact dovetails nicely into the next reason ACORN should drop this suit. . .
Expansive Discovery: The American system allows for liberal discovery requests for the parties in civil litigation. Now recall that ACORN has been the subject of numerous controversies, including claims of embezzlement and voter registration fraud. And the other parties in this case are FILMMAKERS and an ONLINE MEDIA OUTLET. Does ACORN really have nothing to hide? No document that might make it look bad? Why oh why would it risk all this exposure for a few million dollars?
Public Fundraising: Maybe ACORN thought the filmmakers would immediately fold. But (predictably) the whole episode has become a cause célèbre and the Right has rushed in to support the filmmakers. See e.g., Sean Hannity's call for help. So, the defense will be well funded. And even if ACORN prevails, O’Keefe and Giles will become fundraising magnets for the Republican party, attracting donations and political participation from concerned individuals who root for free speech, individualism, and the American way (cue flag in the background).
Diversity Jurisdiction: This suit isn’t going to remain in Baltimore Circuit Court. O’Keefe is from New Jersey, Giles is from Florida, and Breitbart.com is based in California. According to its complaint, ACORN is an Arkansas corporation with its principal place of business in Louisiana, and the two individual plaintiffs are from Maryland. Because there is diversity of citizenship (that means the parties are all from different states), and the plaintiffs are asking for more than $75,000 in damages, the defendants can (and will) remove the case to federal court. There goes your Baltimore advantage. And if and when it comes time to appeal, now you are in the 4th Circuit, one of the most conservative courts in the United States. Super.
So yes, ACORN should just leave well enough alone and fade into the shadows for a little while.* If it feels compelled to respond, it could release reenactments of the meetings emphasizing the humor/ironic angle. Or ACORN could make a well-reasoned harms-reduction argument that criminalizing prostitution only serves to drive the practice underground and to endanger prostitutes. But the courtroom is not where ACORN wants to fight this battle.
*Note: Silence is a perfectly cromulent strategy and a well thought out response could even serve to embiggen ACORN. As it stands, if ACORN continues on its present course, it might draw Judge Snyder and upset the Stonecutters.
(Andrew Moshirnia is a second year law student at Harvard Law School. When he grows up he wants to become Chief Justice of the Supreme Court or a sleazy male stripper. Or maybe both . . . like the late Earl Warren. )