James O’Keefe: Not vindicated

The filmmaker claims the secret Romney video justifies his work -- here's why he's still wrong

By Alex Seitz-Wald
September 19, 2012 7:10PM (UTC)
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James O'Keefe (AP/Bill Haber)

James O'Keefe, the right-wing undercover video provocateur, feels vindicated. After a week dominated by talk of a secretly recorded undercover video of Mitt Romney at a private fundraiser, O'Keefe feels like his controversial tactics have finally been given the respect they deserve, and he sees the fact that the mainstream media never devoted dozens of segments or column inches to his own “investigations” as proof of the press's liberal bias.

"I think that there's definitely been a double standard amongst professional journalists here because they've been pretty much raking Project Veritas [his company] over the coals for about three years," O'Keefe told Yahoo’s Chris Moody in an interview yesterday. “Because I have an organization which does this precise thing and I've been slandered and libeled and defamed and falsely accused and arrested for the last two years of my life trying to do what all the journalists are now celebrating.”

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It’s not surprising that O'Keefe feels that way, but he shouldn’t. His outfit does not do the “precise thing” that the anonymous Romney videographer did before giving the video to Mother Jones. O’Keefe’s sting operations involved elaborate ruses meant to intentionally deceive his targets. He and his operatives have donned costumes and assumed invented back stories to pretend to be pimps, telephone workers and even Attorney General Eric Holder. The whole idea is to actively dupe the target into doing something that would not happen if the O’Keefe operative were not there (one scheme involved trying to seduce a CNN producer onto a yacht filled with sex toys).

Meanwhile, there was none of this kind of deception in the Romney video. Someone merely passively recorded remarks that would have been said regardless of whether the person was there or not. The only deception that may have occurred (we don't know) is at the door when the person entered the fundraiser.  To use a trite metaphor, the Romney leaker merely recorded a tree falling in the forest, whereas O’Keefe pushed the tree over. It’s the difference between a cop catching a criminal in the act of robbing a house and entrapment. There’s a reason entrapment is illegal.

Indeed, O’Keefe ran into the law himself here when he was arrested for entering a federal building under false pretenses. He and his crew was originally charged with a felony, but it was later reduced to a misdemeanor, to which he pleaded guilty. The Romney leaker may have also run afoul of the law for recording without the consent of the subject (Romney), but not for misleading anyone. Many states actually allow you to record someone without their consent, and, as ThinkProgress notes, a prosecutor would have a hard time pressing charges in the leaker case because Florida’s law only applies to communication that people can reasonably assume to be completely private. It also does not apply to “any public oral communication uttered at a public meeting or any electronic communication.” Given the prevalence of electronic recording devices today, it would be hard to argue that Romney could expect anything he says to be “not subject to interception” under any circumstances.

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Which leads to the other big difference between what O’Keefe does and what the Romney recorder did. O’Keefe has targeted Planned Parenthood workers, ACORN staffers, voting clerks and the like -- private citizens who have a reasonable expectation of privacy and are not expected to be aware that any statement they make in private could be used against them, like presidential candidates. Free speech laws make clear differentiations between private citizens and public figures and for good reason. Even the semi-public figures he’s targeted, such as journalism professor Jay Rosen, should be entitled to a much higher degree of privacy than Mitt Romney, who chose to enter the presidential race knowing full well that he was giving up his privacy. O’Keefe will need a lot more than this to redeem himself.

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