Media Licensing and the War on ACORN

[Nuclear Unicorn]

I myself have raised the spector that a criminal indictment against O'Keefe, Giles and Not-terribly-Breitbart would not be prosecutable because of the 1st Amendment protections granted to media outlets when they do stings against disreputable public figures/businesses. Now ACORN is taking them to task in civil court, which--as I understand it--requires a lower burden to show damages*...so good on them.

However, it seems odd that people like O'Keefe and comapny can do what they did and then run around claiming they were "journalists" to shield their illegal activities.

With that said: should their be some sort of credentialling or licensing of media outlets to keep amateur hacks from gaining legal shields not due to them?

Can the FCC or somebody write an amicus and say they don't recognize these shysters as a legitmiate news source?





* civil courts requires a "preponderance of evidence" (read: 51% is good enough) whereas criminal courts require "beyond a reasonable doubt".

[KharmaTrain]

1. Civil Suits Are Your Friend...

The FCC has zero jurisdiction over anything but over-the-air TV signals...making sure they don't interfere...not much else.

The way to stop O'Keefe and his enablers is to take them to court and force them to open up the camera and the books. Let people see the all the videos, not selected bit, find out who funded this venture and expose this smear job for what it is.

The way a media operation gets "credentialed" is through credibility...

[Nuclear Unicorn]

4. Alas, that is not what the ACORN suit alleges

ACORN is suing under state law that the tapes were made without dual consent.

That doesn't expose the entirety of the tapes...it actually suppresses them from further disclosure.

[KharmaTrain]

7. It Also Ascertains Its Validity

There appears to be a similar suit in Maryland as well. The OP questioned what someone not directly involved could so or to participate in either a class action or to submit an amicus.

Any type of investigation would require the "producers" to turn over all materials to court scrutiny that, unless a judge has compelling reason (national security) to sequester them. I can't see that happening here...and I would imagine that if any materials are withheld during a trial they would be made public after a decission is rendered. The only way those tapes would remain secret would be by mutual agreement (like a plea bargain or cash settlement).

[Nuclear Unicorn]

10. Actually I was referring to the MD suit

BUt think about it: If Party A sues Party X because X recorded A without their consent then A is suing to keep the recordings out of the public. The law is intended to give A veto-power against the release of recordings they do not consent to.

Imagine a lover recording bedroom sessions without the other lover's knowledge or consent then posting those videos on the net. The aggrieved lover sues. That doesn't mean they want MORE disclosure, they want less.

Now imagine the offending lover claiming it was done in the name of "journalism". Dateline: Is Peggy Sue McChallahan a slut? Film at 11!

[onenote]

no

Unless, of course, you believe that the government should license newspapers and decide whether those licenses are granted based on content.

[unpossibles]

2. I don't think there should be licensing - there are good and bad amateur reporters out there

bloggers, people like Michael Moore, etc.

I think Acorn is doing the right thing however, because FOX broke the law in a couple of states requiring consent to record conversations.

[Nuclear Unicorn]

3. I'll bet a dollar they deny working for FOX

Instead they will claim they were working on their own while simultaneously claim 1st Amend protections for the press.

Thus my contention from the OP that hacks should not be allowed to shield their hackery.

[Eric J in MN]

5. Journalists aren't exempt from state laws against recording people without their knowledge. NT

NT

[Nuclear Unicorn]

8. Yes, I know but...

...should any ol' malignant hack with an ideological axe to grind be allowed to call himself a "journalist" just so he can emabarrass and harm people?

[Eric J in MN]

9. I don't want a law against embarassing people.

But the scammers should be prosecuted in the states where they violated state law against recording people without notifying them.

[Nuclear Unicorn]

11. But how do you deal with the inevitable claim

that will be made by O'Keefe et al that they were journalists?

[Eric J in MN]

12. If I were the judge, I would say that state law includes journalists, anyway.

I'm not a judge.

[Nuclear Unicorn]

13. Except the case law would not support that ruling

[Eric J in MN]

14. What case said that state law against secret recordings...

...doesn't include journalists?

[Nuclear Unicorn]

15. Because no law can trump the constitution...

...and undercover journalism is nothing new...even in MD.

§ 5-807. SLAPP suits. (a) "SLAPP suit" defined.- In this section, "SLAPP suit" means a strategic lawsuit against public participation. (b) Nature.- A lawsuit is a SLAPP suit if it is: (1) Brought in bad faith against a party who has communicated with a federal, State, or local government body or the public at large to report on, comment on, rule on, challenge, oppose, or in any other way exercise rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body; (2) Materially related to the defendant's communication; and (3) Intended to inhibit the exercise of rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights. (c) Scope of immunity.- A defendant in a SLAPP suit is not civilly liable for communicating with a federal, State, or local government body or the public at large, if the defendant, without constitutional malice, reports on, comments on, rules on, challenges, opposes, or in any other way exercises rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body. (d) Remedies of defendant.- A defendant in an alleged SLAPP suit may move to: (1) Dismiss the alleged SLAPP suit, in which case the court shall hold a hearing on the motion to dismiss as soon as practicable; or (2) Stay all court proceedings until the matter about which the defendant communicated to the government body or the public at large is resolved. (e) Applicability.- This section: (1) Is applicable to SLAPP suits notwithstanding any other law or rule; and
(2) Does not diminish any equitable or legal right or remedy otherwise available to a defendant in a SLAPP suit.

http://www.firstamendmentcenter.org/about.aspx?id=13565#Maryland

I think it would be much easier to simply say O'Keefe was not a journalist as he was not--by his own claims--working for any media outlets. In this thread I used the analogy that someone couldn't surreptiously video a sex romp and claim it was journalism and this wasn't an act of journalism (which should be protected) but an act of partisan political defamation. Even in politics there are limits. No one would recognize it as 1st Amendment rights if someone released ads claiming Candidate X gave herpes to kittens.

[Eric J in MN]

16. "brought in bad faith" is the key phrase there.

A lawsuit over a violation of Maryland laws against secretly recording someone isn't brought in bad faith when there is ample evidence that that activity occurred.

[mth44sc]

6. You folks recall and ABC News- Food Lion fight

http://www.encyclopedia.com/doc/1P2-802697.html