Night Shift @ ACORN (9/24/09)

Some handicapping of the ACORN lawsuit against James O'Keefe, Hannah Giles, and Andrew Breitbart from a non-specialist attorney and Jonah Goldberg reader:

I just wanted to give you a quick lawyer's take on the ACORN complaint against Breitbart, Giles, and O'Keefe....

First, ACORN filed in state court in Baltimore to get the home field advantage, but there is diversity jurisdiction and it will almost certainly be removed to federal court. That will likely be the defendants' first move. I'm not terribly familiar with that federal district, but it is surely more conservative than a Maryland state court. Moreover, it lies in the Fourth Circuit, which is one the most conservative in the country, so there is an excellent appellate "back stop" that will be a great advantage to the defendants.

Second, ACORN's legal theory is very, very thin. Their only cause of action is for a violation of the Maryland wiretapping statute. I'm certainly no expert on that statute, and I have no opinion as to whether Giles and O'Keefe violated it. But, for the sake of argument, let's assume they did. The violation of a criminal statute does not automatically give rise to civil liability in the absence of an express statutory provision that creates a private cause of action. I've litigated that issue on behalf of corporate defendants many, many times and my recollection is that I've never lost on it. I'm somewhat surprised that ACORN didn't include some other common law claims, such as intentional infliction of emotional distress or false light breach of privacy. But the problem with those claims is the vast, vast body of First Amendment law protecting media defendants (which surely includes Breitbart, Giles, and O'Keefe here).

Third, with a little bit of careful thought, the defendants could plead some interesting counterclaims. The federal False Claims Act and RICO come to mind, and would be very interesting.

Fourth, even if the defendants don't plead any counterclaims, the scope of discovery against ACORN will be incredibly broad, as it almost always is in civil litigation. ACORN has far, far more to lose from what could come out during discovery than what they are asking for in this suit.

Fifth, it's sorta bizarre that the fired employees are joining in the suit with ACORN, the entity that fired them. That complicates just about every legal theory, and even has possible ethical complications for their attorneys. I'd have to think about the issue some more, but at first blush I think the defendants' attorneys might want to move to disqualify the ACORN attorneys from representing all three plaintiffs on the grounds that the fired employees have, essentially, wrongful discharge claims against ACORN. Even if the motion is unsuccessful, each of the plaintiffs will have to take a stand, very early on in the litigation, as to whether or not the firings were appropriate. None of them have any good answers to that question.

In short, Learned Hand once said that he feared a lawsuit more than death or taxes. With good lawyering from the defendants (which I'm sure their going to get), ACORN is about to find out what Hand meant. ACORN has very little to gain and a lot to lose.

I could have seen a lawsuit as a threat against the release of the BigGovernment videos beforehand.  But now, after the horse has long since escaped the barn and pooped in Bertha's office trash cans?  Revenge, I guess, but even that would presuppose that they had a legal leg to stand on.

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For a man who compulsively shoves his grinning face before every camera and swallows every microphone, Barack Obama has been eerily silent on the fall of ACORN.  Perhaps it's in recognition that his saying anything on the subject would simply draw him more unwanted scrutiny he doesn't need.  But that's not to say that his administration isn't doing everything it can to shield his other neoBolshevik allies from collateral PR damage at the same time:

Even before U.S. Labor Secretary Hilda Solis was sworn in, Big Labor insiders like AFL-CIO lawyer and Obama appointee Deborah Greenfield were busily dismantling useful union financial disclosures produced by former Labor Secretary Elaine Chao.  It’s another Big Government – Big Labor partnership aimed at keeping individual workers, whom they claim to represent, in the dark.

Why the hurry? Perhaps Union Bosses wanted to prevent the Virginia GOP and inquisitive people like Patrick Semmens from visiting DOL’s UnionReports.gov website that clearly reveals the Big Labor-ACORN collusion.  Semmens discovered that teachers’ union bosses gave about $500,000 to the same Brooklyn ACORN office exposed on BigGovernment.com.  Both the National Education Association (NEA) and the American Federation of Teachers (AFT) awarded ACORN service contracts.

That’s right; union bosses gave teachers’ forced union dues to the same ACORN that appeared to have no problem facilitating child prostitution.  No wonder Solis’ Big Labor friends want to shutdown financial disclosure!

I think the lesson here is pretty clear: the more and louder and more self-righteously a Democrat candidate runs on promises of "honesty" and "openness" and "transparency" in government, the bigger crook they'll be once they get into office.

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Why, in that context, does this story not surprise me?:

President Obama’s “safe schools czar” is a former schoolteacher who has advocated promoting homosexuality in schools, written about his past drug abuse, expressed his contempt for religion and detailed an incident in which he did not report an underage student who told him he was having sex with older men.

Conservatives are up in arms about the appointment of Kevin Jennings, Obama’s director of the Office of Safe and Drug Free Schools, saying he is too radical for the job.

I'd wager if Jennings had had to undergo Senate confirmation for his "czar" post, they'd have found an ACORN connection somewhere in that pervert's background, to go right alongside his NEA allegience, mark my words.

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And finally, you gotta love how Breitbart jovially tosses Bertha's confusion right back in her face:

Another vintage AP exit question: "Who’s acting in the greater 'public interest' here? O’Keefe and Giles, by exposing corruption at a publicly supported nonprofit? Or ACORN, by applying the cash they’re supposed to be using to help the poor to suppress the evidence of it?"