Monday, September 28, 2009

Giles', Shackelford's Definition Of Reasonable Expectation of Privacy

Hannah Giles, the conservative activist who assisted progressive radical James O'Keefe, appeared on Sean Hannity's program with her lawyer, Kelly Shackelford, and discussed the impending lawsuit against her, O'Keefe, and Andrew Breitbart, by ACORN.

Poltico reports:
The crux of the lawsuit centers around a Maryland law which makes it illegal to tape someone without their consent - ACORN is alleging O'Keefe and Giles did so. ACORN is asking for $500,000 in damages to be awarded to each of the employees filmed by O'Keefe and Giles, and ACORN itself wants $1 million in damages.
Hannah Giles opinion: "It's kind of silly... I'm a 20-year-old girl being sued for $5 million", with her Shackelford adding that this is nothing more than a "baseless lawsuit" intended to "to bully a 20-year-old girl".  Schackelford states that this lawsuit is an attempt to "chill speech and freedom of the press", and cites the first amendment as protection for such "citizen journalists" like Giles.

Although the lawsuit has not been served, Schackelford claims the case to be baseless under Maryland statutes, and believes that the reason why the filmmakers are being sued is because they exposed corruption.  Hannity asks the lawyer to be more specific about the statutes that will be used in this case, and states that under the law, one party must have reasonable expectations of privacy in the conversation.  Schackelford states that the statute is specific, that must involve a "private conversation", and using the tape as evidence, he states that it was not a private conversation, with "over 10 people in the room", and with the ACORN employees speaking rather loudly.  Because of this, Shackelford argues that the law is not applicable.

Schackelford claimed that Giles is protected under the first amendment.  This view does not take into consideration the laws in question and that freedom of speech is to not be restricted by government, and that there are limitations to such expectations of freedom, especially when maliciously attacking people or secretly videotaping non consenting parties.  Shackelford assumes that prior restraint is not exclusive to government, but to private industry, and the concept of the unconstitutionality of prior restraint should be applied to his case.  Obviously Giles' lawyer believes she is innocent because in his opinion, the law does not apply to her, and so her video is allowed.  Considering the Maryland statute outlines that there must be a reasonable expectation of privacy, I do not believe Shackelford's defense to be sound.  Considering he is going on television with his client, discussing this lawsuit, I do not think their to be a reasonable expectation of privacy between the two, and I would like all communications between them to be disclosed, for it would be relevant to this case.  Obviously I am not serious, but you can see the absurdity of his argument by simply stating they spoke loudly with other employees in the room; its not like they were at a townhall meeting discussing taxes and child prostitution.

I was not aware that going to a private office released the expectations of privacy.  I assume that when I go to the bank, my discussions with my banker are private, regardless of how many employees are present, or if there are other customers in the lobby.  When I go to the doctor, I expect the results of my visit to be private, regardless of how many nurses or other doctors walk by.  The law is rather clear.  Consent was not obtained by those who were filmed, and just because there were other employees, or because this was a private office that was open to the public, in which the employees spoke loudly, there was an expectation of privacy between ACORN and the filmmakers.

O'Keefe played the "ignorance of the law" card on Fox News Sunday, when asked by Mike Wallace, O'Keefe simply said "I don't know", but they must have understood the consequences of their actions.  During O'Keefe's previous investigative journalism outings that crusaded against Planned Parenthood, O'Keefe had mentioned that they only targeted locations where it was legal to record people without their consent, and when his partner in the Planned Parenthood sting was threatened with a lawsuit for violating wiretapping laws, O'Keefe wrote that they had continued with their investigation, and that after "the investigation aired nationally on Fox News, Planned Parenthood could no longer press charges, as Lila would appear the victim."  O'Keefe does not acknowledge that they may have violated laws, but that they will be viewed innocent once they release their investigation into the public domain, regardless of any law broken.  They were essentially creating a jury bias, and in essence corrupting their own investigation for the sake of their cause.  It does not matter who is actually right or wrong, just so long that the public perceives your target to be the villain.  It appears that O'Keefe and Giles have decided to use that same ignorance of the law to push forward with their ACORN investigation, and as you can see, they are separating from each other, with O'Keefe playing the activist who knew of nothing wrong of his actions, but only that he uncovered some kind of corruption, and with Giles playing the victim.  Maybe ACORN played right into their hands...

It is also interesting that they claim to have numerous more tapes that will be disclosed soon, but they appear to be holding off for now.  There is also a greater focus on ACORN from the right, and it seems as if they are working overtime to try and discredit the organization further before this matter reaches the courts.  Maybe they know their little filmmakers failed to follow the law...

I would also like to note Hannity's comment in the beginning of the interview, where Hannity tells Shackelford that this lawsuit will allow him to go through ACORN's "financing, hiring, etc."  Hannity seems to view this lawsuit as a way to disclose the company's internal operations to the public, despite that it has nothing to do with illegally videotaping someone without their consent.

In case you would like to watch the interview, and see this crack "citizen journalist" and her lawyer make their case on Hannity, here it is:

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