Acorn Foes Face Trial for Undercover Film Work

SAN DIEGO (CN) - The First Amendment does not protect the conduct of two conservative activists who secretly filmed an employee of the national community organizing group Acorn, a federal judge ruled.

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. The Acorn acronym stands for Association of Community Organizations for Reform Now.

O'Keefe and Giles are best known for going undercover to discredit organizations like Acorn and Planned Parenthood. In some visits, Giles posed as a prostitute and O'Keefe as her concerned boyfriend, seeking advice from Acorn about how to run a tax-free brothel for underage sex workers. O'Keefe is often characterized as posing as a pimp since he wore "stereotypical 1970s pimp garb" in the opening and closing scenes of certain videos he released, but he wore a shirt and tie in the actual encounters, according to the California Attorney General's Office.

The footage of Vera purportedly involved the pair seeking advice on how to traffick underage girls from Mexico to work as prostitutes in the United States. The California Attorney General's Office investigated Acorn in 2009, but ultimately found that the conversations, while "highly inappropriate," were not in violation of state criminal laws.

In response to Vera's $75,000 lawsuit for violation of the California Privacy Act, Giles claimed she was not liable for the recording because O'Keefe was wearing the camera.

U.S Judge M. James Lorenz disagreed, ruling 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."

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