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ACORN sting may have used illegal videotaping

This article first appeared in the St. Louis Beacon, Sept. 18, 2009 - The Congressional Research Service has concluded that Congress' decision to permanently cut off funding for ACORN may be an unconstitutional Bill of Attainder. A Bill of Attainder singles out a person or group for punishment without a trial. Click here to read Eugene Volokh on whether ACORN cutoff is a Bill of Attainder and here for Politico's story on CRS' report.

Meanwhile, ACORN has sued in Maryland claiming a fake prostitute and pimp violated the law by secretly recording ACORN employees discussing how the prostitution ring could operate.

The sting that caught ACORN employees agreeing to help a fictional prostitution ring may itself have been illegal. It also raises interesting questions about journalistic ethics and the relationship between "journalists" with agendas and the professional media.

The sting, featuring two young conservatives in their 20s, has embarrassed ACORN, cost it federal funding and forced the Obama White House to distance itself from the organization. James E. O'Keefe III, a Fordham MBA student, teamed with Hannah Giles, a journalism student at Florida International University, to produce the provocative video of ACORN employees offering advice on how the duo could bring young girls into the U.S. as part of a prostitution ring. O'Keefe dressed up as a pimp and Giles, daughter of a conservative minister, as a prostitute.

Their video was a big hit on YouTube and was featured on Fox where Glenn Beck chastised the mainstream media for missing the story. Meanwhile, Media Matters in America criticized the New York Times and Baltimore Sun for not reporting that the videotaping may have been illegal.

The legal complication is that Maryland is a two-party consent state -- like Illinois -- meaning that conversations cannot be taped without the permission of both parties. Violation of the law is a felony, and the Democratic prosecutor in Baltimore has said he is investigating the possible violation.

Meanwhile, ACORN lawyer, Arthur Z. Schwartz, wrote a letter to Fox News president Roger Ailes alleging that the "filming and broadcast of the conversations at the Baltimore ACORN office" violated the law.

At least two issues of journalistic ethics are involved. One is the use of sting tactics and hidden cameras to get stories, and the other is actions of "journalists" with agendas, such as Beck and Giles.

The PrimeTime Live Food Lion broadcasts in the 1990s drew attention to the journalistic tactic of going undercover and using hidden cameras. Two ABC reporters got jobs with Food Lion, completing job applications where they failed to mention their ABC employment and where they misrepresented their employment and educational background. They recorded 45 hours of footage showing Food Lion employees rewrapping old meat. The company claimed -- as has ACORN -- that only negative footage was broadcast. Food Lion accused the ABC reporters of trespassing and breaching their duty of loyalty as employees. A jury awarded Food Lion more than $5 million in damages, but an appeals court threw out most of the verdict. In the end, the employees were found to have breached their loyalty to Food Lion by filming in nonpublic areas of the stores; they had to pay a $2 fine.

Even though ABC ended up on top in the courts, some journalism ethicists thought Food Lion made a strong case against the practice of resume fraud and hidden cameras.

There are obvious differences with the ACORN sting. O'Keefe and Giles had no duty of loyalty to ACORN and didn't have to fill out a job application. But the secret recording of the conversation, possibly in violation of criminal law, poses legal problems for O'Keefe and Giles that ABC did not have.

The two may be in some trouble in California as well where, according to the Reporters Committee on the Freedom of the Press, "an appellate court has ruled that using a hidden video camera in a private place" violates the law requiring two-party consent to secretly recorded conversation.

The other journalistic issue raised by the ACORN case is the divide between the politicized "journalists" and the mainstream media. Giles spoke about her work as pointing toward the journalism of the future where conservatives would become more involved in investigative journalism. But the New York Times raised the question of whether: "The collapse of journalism means that the quest for information has been superseded by the quest for ammunition."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.