A Washington, D.C., appeals court sided with conservative activist James O’Keefe in a case revolving around undercover video clips he published regarding Democratic consultant-backed violence outside Donald Trump campaign rallies during the 2016 presidential election.
O’Keefe, the founder and former CEO of Project Veritas, had appealed a lower court’s 2022 jury decision to award the Democratic consultant targeted by his media company’s undercover video $130,000 in damages based on claims of fraudulent misrepresentation and wiretapping. O’Keefe’s appeal proved successful on Friday, when the three-judge panel agreed, with one judge dissenting in part, to discard the $130,000 damages judgment.
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Project Veritas published the video, called “Rigging the Election,” ahead of the 2016 election between Trump and Hillary Clinton, arguing that a scheme of Democratic operatives, including Democracy Partners, founded by Robert Creamer, had sought to incite violence at Trump rallies throughout the election. The video compiled a series of clips taken by Project Veritas’s undercover reporters and several clips recorded by an employee named Alison Maass, who had gone undercover to get hired as an unpaid intern at Democracy Partners.
Creamer, the husband of Rep. Jan Schakowsky (D-IL), stepped back from his election work after the fallout from the video spread throughout mainstream election coverage, including reaching the presidential debate stage.
Creamer’s group then sued O’Keefe and Maass over the video and their means of achieving the undercover clips. After a federal jury in the District of Columbia ruled in favor of Democracy Partners, O’Keefe and Maass appealed, arguing the damages violated their First Amendment rights to freedom of the press. Circuit Judge Karen LeCraft Henderson, appointed by President George H.W. Bush, sided with the Project Veritas reporters.
“The principal question in this appeal is whether the jury’s damages award violated the First Amendment by punishing the defendants for publishing a news story,” Henderson wrote. “We conclude that it did. The separate issue is whether, under D.C. law, one of the media defendants became the fiduciary of her own news target by tricking him into hiring her as an unpaid intern. We conclude that she did not.”
However, Henderson and the two other judges in the case, Carter appointee Harry Edwards and Obama appointee Robert Wilkins, did agree that the videos Maass obtained were gathered fraudulently and not protected by the First Amendment. But this did not bear an impact on the court’s decision about the video overall, since they concluded that the recording mostly complied with “lawfully obtained” footage from other undercover Project Veritas reporters.
Wilkins dissented in part from Henderson and Edwards on the belief that the panel should “affirm the jury’s finding of liability for fraudulent misrepresentation and remit the damages award to a nominal amount,” instead of stripping back the full damages.
O’Keefe celebrated the appeals court decision, saying, “Today, my faith in the future of journalism and in our courts is restored.”
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“This case has profound impact on the First Amendment and undercover journalism at large,” O’Keefe said. “The right of an undercover journalist to misrepresent themselves in order to bring you the truth.”
An attorney representing Creamer and Democracy Partners told Politico that they were “disappointed in the ruling and do not believe the appeal was correctly decided,” adding that they are “evaluating next steps.”