A series of hidden-camera videos released in September 2009 depicting employees of the nonprofit group Association of Community Organizations for Reform Now (ACORN) advising a couple posing as a pimp and a prostitute resulted in the elimination of the organization's federal funding, a lawsuit against the filmmakers, and a bevy of media commentary surrounding news coverage of the videos.
The footage that sparked the controversy featured 25-year-old James O'Keefe and 20-year-old Hannah Giles walking into ACORN offices in Baltimore; Washington, D.C.; Brooklyn, N.Y.; San Bernardino, Calif.; and San Diego asking for help with buying a house to use as a brothel for underage immigrant prostitutes. In some of the videos, ACORN employees provided advice about tax breaks and home loans.
On the morning of September 10, the first video footage of the couple's interactions with ACORN employees was published on the conservative Web site BigGovernment.com and soon spread to other sites. Later that day, Fox News became the first TV network to broadcast coverage of the videos, and other organizations soon followed.
As a result of fallout from the videos, on October 1 President Barack Obamasigned into law a spending bill, H.R. 2918, that included a provision that "[p] rohibits the availability of funds for the Association of Community Organizations for Reform Now (ACORN) or any of its affiliates, subsidiaries, or allied organizations."
ACORN, which fired many of the employees featured in the videos, has repeatedly been the target of conservatives, most recently for its alleged use of voter registration fraud in the 2008 presidential election. The creation of the videos was widely viewed as politically motivated.
A September 18 story in The New York Times described O'Keefe as a "conservative activist" with "pro-market, anti-government views." Giles, who currently writes for BigGovernment.com and the conservative Web site Townhall.com, met O'Keefe on Facebook and pitched the undercover video idea to him via a phone call.
"Politicians are getting elected single-handedly due to this organization," O'Keefe said in a September 19 Washington Post story. "No one was holding this organization accountable. No one in the media is putting pressure on them. We wanted to do a stunt and see what we could find."
O'Keefe denied claims that he and Giles were bankrolled by conservative organizations and insisted that the pair acted independently, although he did admit to receiving help and advice from Andrew Breitbart, the founder of BigGovernment.org. "We'll be providing receipts, documented proof that this was an independent piece of journalism done by myself and Hannah Giles," O'Keefe said in September 18 story in The Washington Post.
Media reaction to the videos was mixed. Slate's Jack Shafer wrote in a September 23 column that political motivations did not taint the inherent newsworthiness of the underlying story. "One of the great strengths of American journalism is that it will accept contributions from everybody from amateurs to entertainers (I'm looking at you, Jon Stewart) to gadflies tobillionairesto activists to students togenocidal tyrants. The system is so delightfully open that even pornographerscan spill worthwhile journalistic ink," Shafer wrote. "That Breitbart comes swinging a political ax should bother nobody, unless the journalism published inMother Jones,The Nation, the Huffington Post,Salon, theNew Republic, theAmerican Prospect,Reason, the Weekly Standard, or theNational Reviewgives them similar fits. Viewing the world through an ideological lens can sometimes help a journalist to discover a story."
Ken Silverstein, the Washington editor for Harper's Magazine, looked past the political motivations of O'Keefe and Giles and focused on the pair's willingness to report a story he said the mainstream media would not undertake. "Liberals have been attacking the videos by saying that the two videomakers, James O'Keefe III and Hannah Giles, are right-wing advocates," Silverstein wrote in a September 18 post on Harper's Washington Babylon blog. "Who cares? O'Keefe and Giles got some important things wrong, like the amount of federal money received by ACORN, but there's no denying the central claims and power of their work. Nor does it matter that the case is now being picked up and exploited by Fox News, Glenn Beck, and Sean Hannity, which in no way undermines the journalists' work. ... Elsewhere you hear that this is only the kind of work trained professionals in the mainstream media should do. Except of course no one in the mainstream media would have done the story."
Other commentators criticized the O'Keefe-Giles videos as unethical. On September 22 Fort Lauderdale Sun Sentinel columnist Michael Mayo wrote that the ends of the ACORN videos did not justify the means. "Philosophically, I like undercover investigations that expose ongoing corruption and wrongdoing, but I don't like sting operations that entrap people and essentially induce people to commit crimes," Mayo wrote. "Real immersion journalism takes time and hard work. It doesn't have to involve deception or lying. Giles could have signed up to work for ACORN under her own name, and then been a fly-on-the-wall, watching and waiting to see if anything untoward was going on. What these two college students did wasn't journalism. It was a stunt."
In a November 30 story on Politico.com, Kelly McBride, a faculty member at the Poynter Institute, spoke of the inherent dangers of hidden-camera reporting. "We don't have a set of standards for citizen journalism," McBride said. "But undercover work is often considered outside the boundaries of acceptable methods. It can be very problematic if your first value as a reporter is to tell the truth, and the first thing you do is deceive. It's very hard for the public to figure out when to trust you."
In a September 23 column, Los Angeles Times media critic James Rainey said that while the videos provided valuable content, the political motivations of O'Keefe and Giles should have caused news outlets to be careful with their coverage. "[N]o legitimate news organization can claim editorial integrity if it merely regurgitates information from political activists without subjecting the material to serious scrutiny," Rainey wrote. "Some news outlets have taken that responsibility on earnestly, but others, notably Fox News and its commentators, have taken a pass. They've offered little context and less proportion in recycling the ACORN story, day after day."
According to Rainey's column, O'Keefe and his promoters told Fox that not a single ACORN worker had the slightest qualms when confronted with the prostitution scheme, yet a report from Philadelphia suggested an ACORN worker in that city called police after a visit by the duo. Rainey also wrote that a statement from police in National City, Calif., showed that a suspended ACORN worker had called his cousin, a police detective, to ask for advice about the matter.
Jane Kirtley, director of the Silha Center andprofessorof media ethics and law at the University of Minnesota, said that the ACORN videos clarified an important role for traditional news outlets. "The role of gatekeeper and arbiter is the main role left for the mainstream media," Kirtley said in Rainey's September 23 column. "If they are not at least doing that, they might as well give up."
Other commentators criticized mainstream media outlets for not reacting quickly enough to report on the ACORN videos. Clark Hoyt, the public editor at The New York Times, said in a September 27 column that The Times "stood still" as more ACORN videos appeared online and government authorities distanced themselves from the group. Hoyt attributed the newspaper's "slow reflexes" to not knowing how to deal with stories that originate from the world of talk radio, cable television and partisan blogs. Some of these stories, Hoyt noted, lack factual support and never gain momentum. "But others do, and a newspaper like The Times needs to be alert to them or wind up looking clueless or, worse, partisan itself."
Starting September 14, National Public Radio published several stories and blog posts about the ACORN videos, but NPR ombudsman Alicia Shepard defended the delay the organization took while verifying the authenticity of the videos. She wrote that it was necessary to protect NPR's credibility in an age of Internet hoaxes. "[I]n this case, ACORN deserved intense - not halting - scrutiny from any reputable organization. The same is true for the groups that have raised allegations against ACORN. Allegations need to be checked out--not just repeated," Shepard wrote in a September 23 NPR Ombudsman blog post.
In his September 23 column, Rainey predicted that the ACORN videos will spawn a surge in undercover reporting. "O'Keefe and Giles' takedown, a television staple for more than a week, likely will ... popularize and expand the form," Rainey wrote in his column. "Now nurses, doctors, teachers, cops, social workers - just about everyone - ought to get ready for their unflattering close-ups."
Rainey also said that legal judgments against undercover journalists have made television producers and executives hesitant to authorize the use of deceptive reporting tactics. He mentioned the initial $5.5 million verdict a jury levied against ABC in 1997 after the network deceived the Food Lion supermarket chain into hiring undercover reporters to expose unsanitary conditions in the chain. Food Lion did not contest the accuracy of the reports that aired on ABC's "Prime Time Live," but instead focused on how the network gathered its information. The 4th Circuit U.S. Court of Appeals later reduced the verdict to $2 in nominal damages in Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999).
On September 23, ACORN and two of its fired Baltimore employees - Tonja Thompson and Shera Williams - filed a $5 million-dollar lawsuit against O'Keefe, Giles, and Breitbart in Baltimore City Circuit Court, alleging violations of Maryland's wiretapping law, Md. Cts. & Jud. Proc. Code section 10-402(a). The law makes it unlawful for anyone to "willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral or electronic communication." The law also prohibits disclosing the contents of an illegally intercepted communication. Md. Cts. & Jud. Proc. Code section 10-410 creates a civil cause of action for violating the wiretapping law.
The lawsuit, which only involves the Baltimore recording, claims the video damaged ACORN's reputation and asks for an injunction prohibiting further broadcast or distribution. The lawsuit seeks $2 million in compensatory damages - $1 million for ACORN and $500,000 for each of the two terminated workers - in addition to $1 million punitive damages from each of the three defendants.
Andrew D. Freeman, an attorney for ACORN, Thompson, and Williams, said the emotional distress claim "is not an exaggeration," according to a September 24 Associated Press (AP) report. "They're doing their best not to watch television. They've sort of been prisoners in their own homes," Freeman said. "While everyone, including them, agrees that some of the things they said were dumb, in Maryland we have a right to say dumb things in the privacy of our homes and offices without fear of being taped and without fear of being splashed all over the Internet."
A two-month internal investigation of ACORN conducted by former Massachusetts Attorney General Scott Harshbarger concluded that the employees shown on the O'Keefe-Giles videos did not act illegally, according to a December 7 AP report. Harshbarger said some of the behavior was inappropriate, but that there is a difference between behaving unprofessionally and behaving illegally.
ACORN funded Harshbarger's investigation, which led some to attack the merits of the report. "How surprising is it that a report paid for by ACORN exonerates them?" asked Rep. Darrell Issa (R-Calif.), the ranking Republican on the House Oversight and Government Reform Committee, according to the December 7 AP report.
- Cary Snyder
Silha Research Assistant