By James O'Keefe
April 15th 2013, 4:45 am
Anti-taping laws hurt democracy by shielding the powers that be from accountability, writes provocateur James O’Keefe.
“Break in, bribe, seduce and lie; anything to break through that palace guard and get the story,”
said investigative reporter Robert Scheer, according to a article by Abbie Hoffman in a decades-old edition of
Mother Jones
magazine. Sometimes I’ve broken through the palace guards, and other
times the palace guards have nearly broken me. What didn’t jail me made
me stronger and smarter. I’ve become all too familiar with civil and
criminal statutes that are bad for democracy because they insolate those
vested in a public trust from democratic accountability.
Those embroiled in fraud rarely make unprovoked admissions of
licentious behavior, which is precisely why covert tactics are effective
in exposing the truth. Yet the problem lies in the consequences of
applying Scheer’s rule. If I were on the left, pushing the legal limits
of recordings by secretly taping meetings of the National Rifle
Association, I’d be a cause célèbre and win awards for journalistic
excellence. Because my passion so far has been exposing
government-funded sacred cows and disrupting statist narratives, I am an
apostate. Therein the tragedy lies; a free press is supposed to defend
the rights of journalists with whom they disagree. It’s not just ignoble
for the mainstream to ignore my First Amendment crises when they’ve
arisen; journalists who reflexively call for my prosecution put
themselves outside their own values, assuming that support for the First
Amendment is one of them. They must now confront these values head-on
as surreptitious recordings spark a mainstream renaissance, opening the
floodgates to a veritable constitutional crisis over privacy, consent,
and the ability to protect anonymous whistleblowers.
Mother Jones magazine’s Washington bureau chief, David Corn,
recently won a Polk journalism award after publishing a series of
clandestine recordings. Writing later about how he came into possession
of the tape,
Corn noted
that the recording raised a “question of possible criminal prosecution”
in Florida, a two-party-consent state. His lawyers advised Scott Prouty
(the bartender who captured then candidate Romney’s now famous “47
percent” comments), his anonymous source at the time, to “shut up and
keep your head low.” This week, Corn stands to win another journalism
award from Ithaca College for “outstanding achievement in independent
media,” a week after a recording was released that captured a private
conversation in Senate Minority Leader Mitch McConnell’s Kentucky
campaign office. Corn’s latest story could trigger felony eavesdropping
charges. The FBI is investigating, and an official in the group Progress
Kentucky has subsequently resigned, saying he “does not condone any
allegations of illegal activity that might have taken place.” The murky
nature of the Kentucky law makes it unclear whether it’s legal to record
a barely audible conversation,
according to NBC News.
Sadly, rather than being viewed from the onset as a freedom-of-press
issue, these debates split neatly down party lines, contingent upon
who’s being investigated.
I received a unique education in this
murkiness. My punishment—and I’m hardly the first journalist to be put
through the legal wringer for aggressively pursuing the truth—changed my
behavior. I’m hesitant to go into federal buildings, for example. I
haven’t been arrested again for a reason.
But it also forced me to take my work to a new level. I may or may
not have tapes of a federal employee committing fraud. I’ve spent the
last few days with lawyers dissecting
18 U.S.C. § 1001,
prohibiting anyone from making “materially false,” fictitious, or
fraudulent statements to the federal government. Whether an undercover
reporter fibbing about a scenario is making a “materially false”
statement is any lawyer’s guess. There is virtually no case law on this
point, and no analysis of the two cases where the statue is discussed.
Anybody who tells a harmless fib to a federal-government employee
potentially risks everything; we are not talking about a slap on the
wrist, we are talking about a quarter-million dollar fine, a felony
conviction, and the destruction of one’s reputation in the media.
Therefore, the federal government is shielded from the type of reporting
Mother Jones, NBC’s
To Catch a Predator, and ABC’s
Primetime have all won awards for.
