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September 23, 2009

Lawyer: ACORN's Case "Very, Very Thin"

A reader at the Corner seems to think they've got a very weak case.

This is a good point which several have made already:

Fifth, it's sorta bizarre that the fired employees are joining in the suit with ACORN, the entity that fired them. That complicates just about every legal theory, and even has possible ethical complications for their attorneys. I'd have to think about the issue some more, but at first blush I think the defendants' attorneys might want to move to disqualify the ACORN attorneys from representing all three plaintiffs on the grounds that the fired employees have, essentially, wrongful discharge claims against ACORN. Even if the motion is unsuccessful, each of the plaintiffs will have to take a stand, very early on in the litigation, as to whether or not the firings were appropriate. None of them have any good answers to that question.

And why this particular claim? Because other possibilities run afoul First Amendment protections:

Second, ACORN's legal theory is very, very thin. Their only cause of action is for a violation of the Maryland wiretapping statute. I'm certainly no expert on that statute, and I have no opinion as to whether Giles and O'Keffe violated it. But, for the sake of argument, let's assume they did. The violation of a criminal statute does not automatically give rise to civil liability in the absence of an express statutory provision that creates a private cause of action. I've litigated that issue on behalf of corporate defendants many, many times and my recollection is that I've never lost on it. I'm somewhat surprised that ACORN didn't include some other common law claims, such as intentional infliction of emotional distress or false light breach of privacy. But the problem with those claims is the vast, vast body of First Amendment law protecting media defendants (which surely includes Breitbart, Giles, and O'Keffe here).

Oh I could go on quoting but you're already over there reading the whole thing so I'll stop.

He also thinks discovery might be broader than I imagined.

Thanks to DrewM.


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posted by Ace at 08:59 PM

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