“Break in, bribe, seduce and lie; anything to break through that palace guard and get the story,” said investigative reporter Robert Scheer, according to a article by Abbie Hoffman in a decades-old edition of Mother Jones magazine. Sometimes I’ve broken through the palace guards, and other times the palace guards have nearly broken me. What didn’t jail me made me stronger and smarter. I’ve become all too familiar with civil and criminal statutes that are bad for democracy because they insolate those vested in a public trust from democratic accountability.
Those embroiled in fraud rarely make unprovoked admissions of licentious behavior, which is precisely why covert tactics are effective in exposing the truth. Yet the problem lies in the consequences of applying Scheer’s rule. If I were on the left, pushing the legal limits of recordings by secretly taping meetings of the National Rifle Association, I’d be a cause célèbre and win awards for journalistic excellence. Because my passion so far has been exposing government-funded sacred cows and disrupting statist narratives, I am an apostate. Therein the tragedy lies; a free press is supposed to defend the rights of journalists with whom they disagree. It’s not just ignoble for the mainstream to ignore my First Amendment crises when they’ve arisen; journalists who reflexively call for my prosecution put themselves outside their own values, assuming that support for the First Amendment is one of them. They must now confront these values head-on as surreptitious recordings spark a mainstream renaissance, opening the floodgates to a veritable constitutional crisis over privacy, consent, and the ability to protect anonymous whistleblowers.
Mother Jones magazine’s Washington bureau chief, David Corn, recently won a Polk journalism award after publishing a series of clandestine recordings. Writing later about how he came into possession of the tape, Corn noted that the recording raised a “question of possible criminal prosecution” in Florida, a two-party-consent state. His lawyers advised Scott Prouty (the bartender who captured then candidate Romney’s now famous “47 percent” comments), his anonymous source at the time, to “shut up and keep your head low.” This week, Corn stands to win another journalism award from Ithaca College for “outstanding achievement in independent media,” a week after a recording was released that captured a private conversation in Senate Minority Leader Mitch McConnell’s Kentucky campaign office. Corn’s latest story could trigger felony eavesdropping charges. The FBI is investigating, and an official in the group Progress Kentucky has subsequently resigned, saying he “does not condone any allegations of illegal activity that might have taken place.” The murky nature of the Kentucky law makes it unclear whether it’s legal to record a barely audible conversation, according to NBC News. Sadly, rather than being viewed from the onset as a freedom-of-press issue, these debates split neatly down party lines, contingent upon who’s being investigated.
My punishment changed my behavior. I haven’t been arrested again for a reason.
I received a unique education in this murkiness. My punishment—and I’m hardly the first journalist to be put through the legal wringer for aggressively pursuing the truth—changed my behavior. I’m hesitant to go into federal buildings, for example. I haven’t been arrested again for a reason.
But it also forced me to take my work to a new level. I may or may not have tapes of a federal employee committing fraud. I’ve spent the last few days with lawyers dissecting 18 U.S.C. § 1001, prohibiting anyone from making “materially false,” fictitious, or fraudulent statements to the federal government. Whether an undercover reporter fibbing about a scenario is making a “materially false” statement is any lawyer’s guess. There is virtually no case law on this point, and no analysis of the two cases where the statue is discussed. Anybody who tells a harmless fib to a federal-government employee potentially risks everything; we are not talking about a slap on the wrist, we are talking about a quarter-million dollar fine, a felony conviction, and the destruction of one’s reputation in the media. Therefore, the federal government is shielded from the type of reporting Mother Jones, NBC’s To Catch a Predator, and ABC’s Primetime have all won awards for.
Similarly opaque is misdemeanor crime 18 U.S.C. 1036—“entry by false pretense.” This morning I spent hours filing travel requests to leave the state of New Jersey three years after pleading guilty to a class-B misdemeanor, using “false pretenses” while sitting on a couch in Sen. Mary Landrieu’s office. My crime? I said I was “waiting for somebody to arrive” when in fact I was not. I was in plain clothes, and I showed my driver’s license at the entrance to Landrieu’s office. All this was filmed, but because my tape was confiscated and destroyed, it was my word against overzealous U.S. attorneys who charged me with a felony, which led to a media firestorm and inaccurate allegations of tampering with phones and worse. (The U.S. attorneys, Jim Letten and Janice Mann, recently resigned in disgrace for the way their overzealous behavior adversely affected defendants who received their prosecutorial wrath in subsequent cases unrelated to mine.) The Washington Post printed a front-page retraction after letting its glee about my potential imprisonment get in the way of reporting facts. Only one blogger reported the fact that my videotape was destroyed, and to this day I continue to rack up defamation-lawsuit settlements when reporters say I “tampered with phones.”
Compare this treatment to that of the late Aaron Swartz, whose suicide came after the intrepid young man challenged the status quo of copyright laws. As a reward for his boldness, Swartz faced an overzealous political prosecution and the threat of decades in prison. Swartz blurred the lines of legality, because copyright law is blurry. The Boston Globe was quick to note, “There are terrorists and mobsters who U.S. Attorney [Carmen] Ortiz has put away who served far less time than that.” The injustices behind these prosecutions appear even more selective and politically motivated when you consider that the D.C. attorney general announced that NBC’s David Gregory would not be prosecuted for a committing a felony despite “the clarity of the violation of this important law.” Gregory held up a high-capacity assault magazine while in the district, which prohibits magazines that hold more than 10 rounds—but the OAG determined that his intent was simply to “promote the First Amendment purpose of informing an ongoing public debate.”
Are some journalists more equal under the eyes of the law than others?
People for the American Way, with the support of the Daily Kos, delivered over 100,000 petitions to New Hampshire Attorney General Michael Delaney to have me jailed. My “offense” was centered around a federal statute prohibiting the “procurement” of somebody else’s voting ballot—in a video series where we showed poll workers handing us ballots that belonged to recently deceased citizens. Ouractivities were not in violation of any federal or state law, since we didn’t actually accept the ballots, but that didn’t stop Attorney General Richard Head from going on a fishing expedition over New Hampshire’s two-party-consent statutes that make videotaping in private areas a state crime. He dropped his witch hunt only when the state legislature, citing the video, overwhelmingly passed a photo-ID bill and then overrode Gov. John Lynch’s veto of it. Like General Dick Head, Governor Lynch wanted “us prosecuted to the fullest extent of the law.” Cable news largely ignored the video and its impact on voter ID laws, mostly because my adversaries did such a good job falsely branding our tactics as felonious. Even as The Nation called “O’Keefe’s influence on voting rights opponents and legislators ... particularly jarring,” the national press never picked up the story, despite the issue of state intimidation of the press and the change to the law our work inspired.
Then there are the two-party consent statutes themselves, which protect and indemnify the guilty and are prevalent in the most politically corrupt states like Illinois, Maryland, and California. If a journalist had wanted to audio-record late-term abortionist Kermit Gosnell committing crimes against humanity in Philadelphia without his consent, that journalist would risk prosecution for Pennsylvania’s draconian felony wiretapping laws. A liberal organization, Change.org, is petitioning the American Legislative Exchange Council to stop the criminalization of undercover filming in meat-processing facilities. NPR’s Cyndi Lauper bemoaned the impact of criminalizing taping of animal-rights abuses, calling it “criminalizing information.” But NPR did not dispute Bertha Lewis’s contention that Hannah Giles and I committed an “illegal act” in Maryland for undercover taping two ACORN employees telling Hannah and me, in regard to our underage-prostitution scheme, “You can always claim them as dependents” on the tax forms, and to “train them to keep their mouths shut.”
I have also personally forked over $100,000 in a settlement over California’s invasion-of-privacy Act to former ACORN employee Juan Carlos Vera, who argued that I violated his privacy rights by filming him in his office, with the door open, discussing a scheme on how to import underage prostitutes into the United States from Tijuana, Mexico. Almost every article changed the subject from a fascinating debate about expectation of privacy and turned it into a dishonest critique over “editing” tapes. (Vera alleged that he called his cousin, a police officer, after I left—which would have been impossible to “edit” out of our footage, since it allegedly happened days after the meeting itself.) The media’s other story about Vera, that he was “playing along,” contradicted statements Vera made to ABC 10 shortly after he was fired, that he was trying to “help” the fictitious prostitute get a better life. Although his statements were not in dispute, his intentions were, which is precisely why it should be legal to showcase how this public official behaved. Only audio and visual footage can show Vera’s manner, his intonation, and his expression when he gave us specific tip on how to succeed in what he assumed was our prostitution business.
While the two young people who allegedly recorded McConnell, Shawn Reilly and Curtis Morrison, may have overstepped the line this time, conservatives need to understand that the potential punishment they face is incommensurate with the crime under the present law. Raw and unfiltered recordings are the best tools we have to expose things as they really are. Last year John Fund referred to our video showing Eric Holder’s ballot to vote offered to a stranger as “cinema verité.” Now David Corn said of his McConnell tape, “No one needs to listen to me or any commentator to know what it means ... It’s all there ... It’s journalism verité.” As someone who shares David Corn’s vision of bringing veritas to the vulgate, or truth to the people, I wholeheartedly agree.