Setback for James O’Keefe and Hannah Giles in Illegal Recording Lawsuit Brought by California ACORN Staffer

Monday, the District Judge in Vera v. O’Keefe rejected their motions for judgment on the pleadings. Among other things, the judge concluded that, “Given the requirement of a ‘confidential communication’ in § 632 [the statute under which the plaintiff is suing -EV], and that the California Supreme Court has defined that phrase as a party to the conversation having ‘an objectively reasonable expectation that the conversation is not being overheard or recorded,’” § 632 doesn’t violate the First Amendment. (At this early stage in the litigation, defendants didn’t ask the court to decide whether the plaintiff actually had such an objectively reasonable expectation.)

As to Giles, the court rejected her argument that she can’t be liable because she wasn’t the one physically recording the conversation. “Penal Code § 31 [the aiding and abetting statute -EV] is applicable to § 632 which allows for Giles to be viewed as a principal [and thus potentially liable -EV] whether or not she actually physically recorded the confidential conversation. The plain language of the statute does not limit liability to the person who has physically recorded a confidential conversation.”