By Jesse D. Franklin-Murdock
Weeks before the 2016 election, a hidden camera caught a Democratic operative bragging about paying people to start fights at Trump rallies. The political press spent the next decade trying to bury the Project Veritas reporters who caught it on tape. This month, that strategy failed. For nearly a decade, Project Veritas and its founder James O’Keefe (who later founded the O’Keefe Media Group) have never attained the status of “real journalists” in the eyes of the political and media establishment. Despite Project Veritas and O’Keefe breaking many important news stories through old-fashioned investigative journalism, the response to their work has been lawsuits, deplatforming, and often outright scorn. This month, one of those court campaigns collapsed. The D.C. Circuit reversed a jury verdict against O’Keefe and Allison Maass, a Project Veritas reporter, entering judgment for O'Keefe and Maass on every claim tied to Project Veritas’s landmark 2016 investigation into Democratic operatives Bob Creamer and Scott Foval. While the D.C. Circuit did not completely close the door on similar lawsuits in the future, the Court’s opinion nonetheless deserves praise for its pro-journalism and pro-free speech holding.
Posing undercover, Project Veritas reporters captured Scott Foval — a Democratic consultant in the orbit of Hillary Clinton’s 2016 presidential campaign — bragging on camera about staging violent confrontations at Trump rallies, paying “mentally ill” people to cause disturbances, and boasting that a man roughed up at a Scott Walker event was one of Bob Creamer’s (another important Democratic consultant) own operatives. This was an important story about real political dirty tricks, caught on tape by reporters doing exactly what investigative journalists have always done: pretending to be someone they weren’t so a source would tell the truth. When it came out weeks before the 2016 election, the political class moved immediately to discredit the source rather than grapple with the truth of the reporting. When that didn’t work, lawfare against Project Veritas’s reporters followed.
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If Project Veritas made up or embellished the facts in its video, the lawsuit would have been a defamation case. But Creamer didn’t sue for defamation. He couldn’t prove the tapes were false, because they weren’t, and defamation law requires exactly that. So his lawyers dressed up a reputational injury claim as “fraudulent misrepresentation” and sought over a million dollars for lost consulting contracts, hoping a jury would let him and his company recover for his sheer embarrassment of being caught on tape without ever having to clear the constitutional bar the First Amendment sets for public figures. It almost worked. A D.C. jury awarded Creamer $120,000, plus another $10,000 on a wiretapping theory built on the theory that an unpaid twenty-something intern owed his consulting firm the legal duties of a fiduciary — the kind of duty owed by lawyers and directors, apparently now extended to college kids fetching packages and inventorying yard signs.
The D.C. Circuit unwound both maneuvers. On the damages question, the Court held what should have been obvious from the start: You cannot use a fraud claim as a backdoor around New York Times v. Sullivan (which requires that public figures suing for defamation prove falsity and actual malice). Creamer’s own admission that the main injury from the story was that it made him “look bad” gave the game away. That is a defamation claim wearing a disguise, and the Constitution doesn’t let plaintiffs evade its protections for the press through clever pleading. The Court went further, applying the same rigorous causation standard the Supreme Court used to protect NAACP civil rights boycotters in NAACP v. Claiborne Hardware, and found that AFSCME’s own executive testified, under oath, that it was the video’s factual reporting — not any technical infiltration issue — that drove the contract cancellations. In other words, Project Veritas’s truthful reporting was the cause of the damages.
On the wiretapping claim, the Court refused to let Creamer’s lawyers transform the fiduciary duty doctrine into a tool for punishing interns. An unpaid intern who inventories political signs and clips YouTube videos is not a fiduciary of the organization she interned for, no matter how badly that organization would like her to have been one after the fact.
After years of grueling litigation, a District of Columbia trial punished O’Keefe and Maass for publishing a damning expose about dirty political tricks. An appellate court thus struck down both legal theories the jury relied on, instructing the lower court to enter judgment in favor of the Project Veritas defendants. To be sure, the D.C. Circuit still concluded that gaining employment under false pretenses could constitute fraud, but an organization suing under such a theory would be required to prove that its damages flowed from the use of false pretenses itself, rather than subsequent truthful reporting.
This case matters well beyond Project Veritas. Undercover journalism that catches people saying true, damaging things about themselves in public is protected speech, and dressing up what would be a baseless defamation claim as fraud doesn’t change that. Project Veritas unearthed newsworthy facts that the public had a right to learn. The D.C. Circuit’s recent opinion will shield journalists in the future who use investigative methods to bring hidden information to light.
Jesse D. Franklin-Murdock is the Miles Visiting Fellow at the Center for American Liberty. He is also a partner at Sweigart Murdock, LLP, in San Francisco, where his litigation practice focuses on First Amendment and defamation law, civil rights, and political law.