Suits with Project Veritas, Carmen Electra denied high court treatment

WASHINGTON (CN) — The Supreme Court opted not to take up any new cases Monday, releasing a list of orders that included rejections for the far-right group Project Veritas and former "Baywatch" star Carmen Electra.

Both cases raised questions about different legal definitions and requirements of consent.

In the case with Project Veritas, the radical activist group led by James O'Keefe took aim at a Massachusetts law that makes it a felony for anyone to record government officials without their permission.

Claiming that the law creates a chilling effect on the freedom of the press, Project Veritas sought an injunction to avoid legal repercussions as it planned to plant hidden cameras during conversations with local politicians about immigration.

The group initially stumbled, having sought relief from a law that hadn't actually been enforced against it, based on an investigation it had not conducted and may not ever conduct. In 2018, however, a federal judge granted it a narrow summary judgment, ruling that the First Amendment protects the secret recording of government officials performing their duties in public.

A three-judge panel of the First Circuit looked at the case last year, ultimately ruling against Project Veritas because it found that the law was not facially overbroad and that the group's challenge to the law as applied was unripe.

Per its custom, the Supreme Court did not comment on its decision to deny the group a writ of certiorari Monday.

"I’m saddened to see denial of a case important to the free speech rights of investigative journalists nationwide. Journalists shouldn’t be held to Byzantine standards when proving First Amendment injures in federal courts," Benjamin Barr, an attorney for Project Veritas, said Monday.

Suffolk County District Attorney Rachel Rollins meanwhile said the Supreme Court’s decision not to hear an appeal was the right call.

"The First Circuit got it right with its carefully considered December 2020 decision, which protects an individual’s right to record police in the course of their work, while also ensuring the rights of private individuals who approach public employees for help," Rollins said in a statement. "Today’s announcement that the Supreme Court will not disturb that decision provides all of the parties involved, as well as members of the community with a clear understanding of the path forward."

Project Veritas gained notoriety in 2009 when O’Keefe dressed in retro-pimp garb and purported to have gotten advice from the liberal community-organizing group Acorn on how to run a tax-free brothel for underage sex workers.

Though several outside investigators ultimately cleared Acorn of any wrongdoing — finding that O’Keefe’s sting footage had been heavily and misleadingly edited — the nonprofit had already been bankrupted by a loss of its funding.

Also on Monday, the highest court declined to hear an appeal by Carmen Electra and a group of 10 models who sued over the unauthorized use of their likenesses by a chain of New York City strip clubs.

The women brought the suit back in 2015, noting that none had ever worked at the clubs but had taken the photos through their modeling agencies. The clubs argued meanwhile that any trademark violations that may have taken place would be the responsibility of the third-party agency that had freely given the clubs the photos.

A federal judge first issued an injunction only as to Electra, finding that the 10 models who were less famous had been paid "the fair market value" for their work and they had signed away the rights to the images. The court later granted Electra
summary judgment on her Lanham Act claim only, siding with the clubs on all claims and as to all the other women.

Electra joined the models in petitioning the Supreme Court when the Second Circuit affirmed. John Golaszewski, an attorney for the models, noted in an email Monday that they hoped the justices would "address a serious discord among district courts regarding an individual’s ability to bring and sustain a Lanham Act claim."

"The court’s decision amounts to a free pass for businesses in certain jurisdictions who unapologetically misappropriate and exploit the hard-earned intellectual property rights of women who are deemed not famous enough to be afforded federal trademark protection," Golaszewski continued. "We will continue to fight for our clients’ rights and push this important issue forward as often as necessary."

As in the Project Veritas case, the justices did not issue any comment about declining to award them a writ of certiorari.

The clubs' attorney, David Luck with Lewis Brisbois in Coral Gables, Fla., did not return a request for comment.

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