UPDATE: See the footnote for a correction and explanation of the few edits I made.
But now that she's facing a $75,000 lawsuit, she says she's not culpable because it was
her faux pimp her accomplice*, conservative activist James O'Keefe, who held the video camera ---
Former National City ACORN worker Juan Carlos Vera is suing O'Keefe and Giles in US District Court in San Diego, alleging that the pair violated the California Privacy Act, which require all parties to consent before a confidential conversation may be recorded. Vera lost his job after O'Keefe and Giles went public with secret footage that ostensibly showed the two, p
osing as pimp and ho as prostitute and skeezy boyfriend, asking for and receiving advice from Vera on how to smuggle underage prostitutes into the US.
A California Department of Justice investigation later determined the video had been intentionally edited to be misleading and found that Vera had called law enforcement after the meeting.
In a motion for judgment, Giles' attorneys argue:
"Section 632 has limited scope: it unambiguously imposes liability only on persons who carry out the recording of a confidential communication with the consent of all parties to the communication, and precludes liability for persons who merely assist the recording or participate in the communication. Here, the Complaint itself makes clear that only O'Keefe, not Giles, actually carried out the recording of the communication. Allegations that Giles was present during, or agreed to, the recording are legally insufficient to bring her within the scope 632."
So, even though Giles says, on her legal appeal website, DefendHannah.com, "In an undercover expose, Hannah Giles captured ACORN employees offering advice on prostitution and money-laundering," she's still innocent because she wasn't holding the camera. In other words, she deserves the glory, but not the liability; that's all O'Keefe.
Her lawyers contrast the privacy law, which does not include an explicit conspiracy clause, to California's anti-wiretapping law, which does. They reason that the legislature left it out intentionally.
They also make a First Amendment case:
"California is one of the few states to impose liability on a person who records a conversation to which he or she is a party, and the provisions at issue contain no express exception for media, journalists, or other First Amendment-protected newsgathering activities. The lack of such protections—and the importance and ubiquity of video media in the Internet age—at a minimum raises serious questions whether 632 can be reconciled with the First Amendment in a substantial number of potential applications...Moreover, participant recording is an integral part of modern-day newsgathering, in which there is a well-recognized First Amendment interest, and Giles and O'Keefe were engaged in investigative journalism."
O'Keefe's attorneys made a similar case, as CityBeat reported in December, but David Blair-Loy, legal director for the local ACLU chapter, says that argument is not going to fly. Courts already upheld these two-party consent laws (Shevin v. Sunbeam Television), he says, because Americans also have a right to privacy.
"The First Amendment protects the right to record events in public but does not authorize invasion of legally protected privacy rights," Blair-Loy writes via e-mail. "Both free press and privacy rights are constitutionally protected and must be balanced. Occasionally, the right to privacy prevails."
* I have corrected this to be clear that O'Keefe portayed himself as a pimp only after the fact. To quote from the Attorney General report:
In each of ACORN offices they visited together, Giles posed as a prostitute fleeing an abusive pimp, and O’Keefe posed as her boyfriend, trying to help her, and, in some instances, attempting to benefit from the proceeds of the prostitution trade. Although O’Keefe is dressed in stereotypical 1970s pimp garb in the opening and closing scenes of the videos released on the internet, when O’Keefe visited each of the ACORN offices, ACORN employees reported that he was actually dressed in a shirt and tie. Also, contrary to the suggestion in the edited videos,O’Keefe never stated he was a pimp. Although their story morphed over time, the couple requested advice from ACORN employees related to Giles’ prostitution business, including obtaining a mortgage, reporting income and taxes from the illicit business, avoiding lawenforcement scrutiny, smuggling young girls into the country to serve as prostitutes, and obtaining documentation and voting privileges for them. Woven into the narrative and conversations were tales of Giles’ flight from an abusive pimp and how the girls could be keptsafe from the pimp, albeit employed as prostitutes. O’Keefe wore a hidden camera and secretly recorded audio and video of the conversations.
Brad Blog took me to task for summarizing it so poorly. He was right to point it out. In return, I hope he will edit his blog so my name is spelled correctly.
UPDATE: He has! Sweet.