D.C. Circuit voids $130,000 judgment against James O’Keefe in 2016 sting case

Key points

• The D.C. Circuit Court of Appeals vacated a $130,000 judgment against James O’Keefe and Project Veritas, which had been awarded to Robert Creamer and Democracy Partners following a 2022 trial.
• The court ruled that the original verdict violated the First Amendment by combining damages from lawful undercover reporting with those from unlawful infiltration.
• Judge Karen Henderson and Judge Harry Edwards voted to wipe out the entire $120,000 fraud award, while Judge Robert Wilkins suggested reducing it to a nominal $1.
• The court agreed that Project Veritas operative Allison Maass committed fraud by lying about her identity to secure an internship at Democracy Partners, but noted she had no fiduciary duty to the firm during her eight-day stint.
• The original 2016 video alleged that Democracy Partners was inciting violence at Donald Trump’s rallies, leading the Democratic National Committee to sever ties with Creamer.
• O’Keefe stated the ruling legitimizes his undercover reporting methods and will help him defend against other pending lawsuits.

Background

This case stems from a 2016 undercover video released by Project Veritas, which accused Democracy Partners founder Robert Creamer of inciting violence at Republican rallies. The resulting lawsuit led to a 2022 jury trial where Creamer won damages for fraud and wiretapping. The current ruling by the D.C. Circuit addresses the First Amendment implications of such stings, distinguishing between lawful reporting and illegal infiltration. This decision follows a broader trend of legal challenges regarding the limits of undercover journalism, though it is distinct from recent Supreme Court rulings on presidential immunity in civil cases, such as those involving E. Jean Carroll.

Why it matters

The ruling establishes a critical legal precedent for undercover journalism, clarifying that while deceptive methods of gathering information may not be protected by the First Amendment, the publication of such material may still be. By overturning the judgment, the court prevents the financial consequences of lawful reporting from being bundled with unlawful acts, potentially shielding journalists and activists from similar liability in future cases. This outcome may influence how media organizations and political operatives navigate the legal risks associated with subterfuge in reporting.

What to watch

Robert Creamer and Democracy Partners are evaluating their next legal steps following the overturned verdict, with their attorney expressing disappointment and questioning the correctness of the appeal. James O’Keefe plans to use this ruling to defend against other lawsuits from targets of his reporting. The case may also prompt further legal scrutiny of the fiduciary duties of interns, a point of contention among the judges, and could influence future litigation involving undercover reporting tactics in political campaigns.