ACORN: Housing Assistance For Prostitutes

[Asher]

I was going to skip the below and just hang my hat on the First Amendment to save time, but what the hell...

Appreciate the bolding and excerpt but it was for naught. The assumption is faulty.

That was not an "assumption" at all but contained in the very case the blog cited, namely Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997). In that case, the court specifically stated that it would interpret the Maryland Wiretap Act's use of the phrase "private conversation" in accordance with other courts' test for objectively "reasonable expectation of privacy" as opposed to mere subjective belief in privacy:

It doesn't say that at all. It is the assumption that that ruling is relevant, I think it's quite obvious that it can be contended it's not relevant.

It is obvious that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S.Ct. at 511.

Talking in a room in a consultation-style environment is NOT "knowingly exposing it to the public".

This is the faulty assumption.

Granted, Malpas had to do with admissibility of something overheard in the next room, not a face-to-face conversation with a recording party

Which is a massive distinction that you are ignoring. This is where the faulty assumption comes in.

which is unsurprising given that Maryland's a small state which hasn't presented a fact pattern just yet that's precisely on-point.

Which is precisely why it's not a frivolous case. It has no sure-fire precedent.

[Drake Tungsten]

Darius needs to stop while he's ahead. He's already delivered the pimp-slap; continuing now will only make Asher look like a successful troll.

[Darius871]

Sorry, which of the videos discussed millions of dollars in taxpayer funding?

The public concern is the use to which those funds are put. Don't be ridiculous.

[Asher]

Darius, if the video in question was that of an ACORN board meeting where they were encouraging giving advice like what was given, then I could see the argument about it being of public significance given that this is where a not insignificant sum of money is going.

But the video in question is of one employee giving advice to a bunch of people who, themselves, are not being truthful. As I understand it even the employees claim to just have played along.

There's a lot of room in court to argue this issue, as I hope should be obvious. It's anything but frivolous.

[Darius871]

So, I'll repeat again, I'm seeing something that's [far] from frivolous. Do you want to retract that claim?

I was going to skip the below and just hang my hat on the First Amendment to save time, but what the hell...

"15 minutes of research" and a HELL of a lot of assumptions that I'd consider egregious (that talking behind closed doors does not constitute a private conversation).

That was not an "assumption" at all but contained in the very case the blog cited, namely Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997). In that case, the court specifically stated that it would interpret the Maryland Wiretap Act's use of the phrase "private conversation" in accordance with other courts' test for objectively "reasonable expectation of privacy" as opposed to mere subjective belief in privacy:

[W]e apply the two-pronged inquiry applicable to search and seizure cases set forth in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring). We first ask whether Craigie exhibited an actual, subjective expectation of privacy with regard to his statements. If we answer that question in the affirmative, we then ask whether that expectation is “one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361, 88 S.Ct. at 516.

It is obvious that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S.Ct. at 511.

Malpas v. State, 695 A.2d 588, 595 (Md. Ct. Spec. App. 1997)

Granted, Malpas had to do with admissibility of something overheard in the next room, not a face-to-face conversation with a recording party, which is unsurprising given that Maryland's a small state which hasn't presented a fact pattern just yet that's precisely on-point. However, knowing from Malpas that other court's general interpretation of "reasonable expectation of privacy" will be more instructive than the Maryland Wiretap Act which is completely silent on its definition, what have the courts had to say about inviting total strangers into a workplace that is open to the public?

See for example a case of undercover ABC reporters entering a publicly open office by pretending to be customers:

Regardless of the method of intrusion used, a plaintiff can recover “only if he had an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source.” Shulman, 74 Cal.Rptr.2d at 864, 955 P.2d 469; Kemp v.Block, 607 F.Supp. 1262, 1264 (D.Nev.1985) (emphasis added); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269, 1279 (Nev.1995).

When an intrusion occurs in a home or other personal sphere, the plaintiff's expectation of privacy has, in most instances, been deemed to be objectively reasonable. Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir.1971) ( “Plaintiff's den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen.”). However, courts have recognized that there is a diminished expectation of privacy in the workplace. See, e.g., Ali v. Douglas Cable Communications, 929 F.Supp. 1362, 1382 (D.Kan.1996); People for the Ethical Treatment of Animals, 895 P.2d at 1281 (“there is, generally speaking, a reduced objective expectation of privacy in the workplace.”); Hart, 947 P.2d at 853 (rejecting employees' intrusion upon seclusion claims against their employer's demand that they take a drug test); Cox v. Hatch, 761 P.2d 556, 563 (Utah 1988) (no reasonable expectation of privacy in a “common workplace”). When courts have considered claims in the workplace, they have generally found for the plaintiffs only if the challenged intrusions involved information or activities of a highly intimate nature. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3rd Cir.1992) (noting that “[i]f the method used [by an employer] to collect [a] urine sample fails to give due regard to the employee's privacy, it could constitute a substantial and highly offensive intrusion upon seclusion” and that the same principles would apply to an employer's search of an employee's personal property “if it is done in such a way as to reveal personal matters unrelated to the workplace ”) (relying on Rest. § 652B) (emphasis added); Doe v. Kohn Nast & Graf, P.C., 862 F.Supp. 1310, 1326 (E.D.Pa.1994) (summary judgment denied on employee's claim that employer intruded on his seclusion by searching through and reading personal medical documents on an employee's desk) (relying on Rest. § 652B). Where the intrusions have merely involved unwanted access to data or activities related to the workplace, however, claims of intrusion have failed. See, e.g, Smith v. Colorado Interstate Gas Co., 777 F.Supp. 854, 857 (D.Colo.1991) ( “Unreasonable intrusion of seclusion is not implicated because the allegations [that plaintiff's former employer intruded on her seclusion by informing a prospective employer that she had not been laid off, as she claimed on a job application] do not involve invasions of [plaintiff's] personal solitude or personal affairs”) (citing Rest. § 652B); Bratt v. International Business Machines Corp., et al., 785 F.2d 352, 359 (1st Cir.1986) (finding that “no reasonable fact finder could conclude that there had been an unreasonable intrusion” upon the plaintiff's privacy by the limited dissemination of the frequent use by the employee of the employer's confidential grievance process because “[t]he information itself, although it may have had a negative connotation to some managers, is not of such a personal nature that an intrusion upon privacy results from its disclosure.”); Hastings & Sons Pub. Co. v. City Treasurer, 374 Mass. 812, 375 N.E.2d 299, 303 (Mass.1978) (no breach of privacy in disclosure of payroll records because information did not include “ ‘intimate details' of a ‘highly personal’ nature”); Ali, 929 F.Supp. at 1382 (plaintiffs could only prevail on intrusion claim against their employer's monitoring or recording of their telephone conversations at work if such calls were of a “personal nature”).


In the instant case, Mr. Devaraj invited Ms. Gordon and Mr. Cooke to his place of business for a meeting. Regardless of whether they were potential future business partners, as Mr. Devaraj thought, Ms. Gordon and Mr. Cooke were strangers who chose Mr. Devaraj from relative obscurity and called him. The conversation and office tour took place in a laboratory that was at least partially open to the public and was accessible to employees. Mr. Devaraj did not communicate to the Defendants that he expected the conversation would not be disclosed to others, nor did he take any precautions to ensure that the contents of the discussion remained confidential. Furthermore, *1189 over the course of the roughly two hours, the topics of conversation were restricted to discussions of the industry as a whole and to the general practices at Medical Lab. For instance, Mr. Devaraj told Ms. Gordon and Mr. Cooke that he paid his cytotechnologists more than other labs so they preferred to work for him, that he had better turnaround time than other labs, and that he made only a minimal profit on the pap smear testing. (Devaraj Decl. at ¶ 9, attached to Pls.['] Statement of Facts (“PSOF”) as Exh. 8.) Mr. Devaraj freely shared this information with Ms. Gordon and Mr. Cooke and may not have if he knew they were recording his conversation for publication. The information, however, hardly constituted matters involving “intimate personal facts.” Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1353 (7th Cir.1995). Thus, Mr. Devaraj can claim no reasonable expectation of privacy in the location or contents of the conversation. Shulman, 74 Cal.Rptr.2d at 864, 955 P.2d 469.

Medical Laboratory Management Consultants v. ABC, 30 F.Supp.2d 1182 (D. Ariz. 1998)

Or perhaps another case of undercover ABC reporters (referred to as "testers") entering a publicly open office by pretending to be customers:

No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment, because there would have been no invasion of a legally protected interest in property or privacy. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); Forster v. County of Santa Barbara, 896 F.2d 1146, 1148-49 (9th Cir.1990); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir.1979). “Testers” who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private persons not acting under color of law. Cf. id. at 1355. The situation of the defendants' “testers” is analogous. Like testers seeking evidence of violation of anti-discrimination laws, the defendants' test patients gained entry into the plaintiffs' premises by misrepresenting their purposes...

What we have said largely disposes of two other claims-infringement of the right of privacy, and illegal wiretapping. The right of privacy embraces several distinct interests, but the only ones conceivably involved here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229; Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548, 555 (1989); Doe v. Methodist Hospital, 639 N.E.2d 683, 685 (Ind.App.1994). As we have said already, no intimate personal facts concerning the two individual plaintiffs (remember that Dr. Desnick himself is not a plaintiff) were revealed; and the only conversations that were recorded were conversations with the testers themselves. Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir.1993).

Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 7th Cir. 1995)

Or perhaps another case of local reporters entering a publicly open office by pretending to be customers:

The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted.... Nor was there any inva[sion of] a person's private space, as in the famous case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881)

American Transmission, Inc. v. Channel 7 of Detroit, Inc., 239 Mich.App. 695 (Mich. App. 2000)

etc. etc. etc.

[Drake Tungsten]

We both know that you're the slapee.

[Asher]

Thanks Drake.

[Drake Tungsten]

Pimp-slap^3

[Asher]

Do you really think millions of dollars in taxpayer funding are not a matter of public concern? FFS, the mere fact that it was a news story so widely consumed makes it a matter of public concern. It doesn't have to be important to a majority of Americans.

Sorry, which of the videos discussed millions of dollars in taxpayer funding?

You're taking a macro view of a micro case.

The relevant information is the advice given by employees, which is not directly relevant to millions of dollars in taxpayer funding nor is it even relevant to the large-scale ACORN practices that may or may not exist.

[Darius871]

Just so we're clear, every single recorded conversation is truthful by definition as it records the conversation. So why make the distinction?

Do you really think every pertinent rule is made with only recordings in mind? Suppose a newspaper article says something. It may be true or it may be false. Hence the distinction. Suppose a camcorder records something and the recording is not doctored. Its contents are by definition true. Although the distinction always favors video journalists, it does not favor all journalists, and thus it gives some "wiggle room" in deciding some cases, just not this one.

Then it also discusses "public significance" -- how the hell is anything to what they're talking about significant to the public?

Do you really think millions of dollars in taxpayer funding are not a matter of public concern? FFS, the mere fact that it was a news story so widely consumed makes it a matter of public concern. It doesn't have to be important to a majority of Americans.

[Asher]

What needs to be "truthful" isn't the statement "she's a prostitute" or "you, as a prostitute, should do X," but that the video is a truthful, accurate representation of statements made. The truth of facts assumed by the speaker are irrelevant.

Just so we're clear, every single recorded conversation is truthful by definition as it records the conversation. So why make the distinction?

The law discusses "truthful information" -- in this case the information is what, the hypothetical situation under discussion? Then it also discusses "public significance" -- how the hell is anything to what they're talking about significant to the public?

I'm seeing a LOT of wiggle room here and a lot of uncertainty and a lot of avenues of attack in a court.

So, I'll repeat again, I'm seeing something that's from from frivolous. Do you want to retract that claim?

[Darius871]

Words are not necessarily truthful.

Not sure what you're claiming here. All you have are videos of people talking about things that have not happened. None of this is truthful.

The context for your quote was something like hidden camera investigations of poor poultry sanitation, not a bunch of people talking to actors making up hypothetical situations.

What needs to be "truthful" isn't the statement "she's a prostitute" or "you, as a prostitute, should do X," but that the video is a truthful, accurate representation of statements made. The truth of facts assumed by the speaker are irrelevant.

Suppose a supervisor in a poultry investigation says "you go bleach that chicken to make it look newer." Are you saying the video of that statement is not a "truthful" representation of what the supervisor said merely because he made that statement under the belief that the person he instructed was an employee, not a reporter?

[Asher]

Video of one's own words doesn't leave much room to argue falsity.

Words are not necessarily truthful.

Not sure what you're claiming here. All you have are videos of people talking about things that have not happened. None of this is truthful.

The context for your quote was something like hidden camera investigations of poor poultry sanitation, not a bunch of people talking to actors making up hypothetical situations.

[Darius871]

Nothing obtained was truthful.

Video of one's own words doesn't leave much room to argue falsity.

[Asher]

Nothing obtained was truthful.

The more you quote the more obvious it becomes that this is not an open and shut case, and very far from being a frivilous lawsuit.