Secret Recording at Pretend Date by O'Keefe Media Wasn't Tortious, Court Holds

From yesterday’s decision by Judge Anthony Trenga (E.D. Va.) in Fseisi v. O’Keefe Media Group:

The Complaint alleges the following:

Defendant James O’Keefe is a conservative political activist whose organization, Defendant O’Keefe Media Group (“OMG”), frequently engages in “sting” operations in which its agents use false identities to arrange meetings with individuals affiliated with government, mainstream media, or progressive organizations, and surreptitiously record them with the goal of publishing the subject’s potentially unflattering or controversial statements so as to tarnish the reputations of the subject or their affiliated institution or, in OMG’s words, to “expos[e] corruption.” Plaintiff, a top secret-cleared information systems security consultant to government agencies, including the Central Intelligence Agency, the National Security Agency and the Office of Director of National Intelligence, fell prey to one such operation in April 2024, during what he thought were two romantic dates with “Jane Doe,” who unbeknownst to Plaintiff, was an OMG employee.

Jane Doe contacted Plaintiff via the Bumble dating app and, during both dates, represented herself as a liberal and pressed him for details on his work, including whether certain government agencies may have surveilled or withheld information from then-former President Donald Trump. In response to this questioning, Plaintiff stated, inter alia, that while “anything was possible” and he could not give Jane Doe a straight answer, he “believed” some information was withheld, and that NSA or CIA “could have” surveilled Trump. {The videos posted by OMG, which Defendants link to in their Motion and which the Court may consider as intrinsic to the Complaint, contain statements that are much more explicit than those alleged in the Complaint (and do not appear to be cut or deceptively edited).}

On the second date, Plaintiff noticed what he thought was a recording device in Jane Doe’s bag (which she had kept on the table during both dates) and asked her whether he was being recorded. In response, she denied that, but then repeatedly refused to allow him to inspect her bag and shortly left the restaurant. Despite this experience, Fseisi later agreed to meet Jane Doe again in the District of Columbia, where he was instead confronted by O’Keefe and a cameraman.

In early May, 2024, OMG made multiple posts on its website and social media accounts which included video footage from the first and second dates and the O’Keefe confrontation that included Plaintiff’s statements to Jane Doe that “we kept information from him [Trump]” (and that the “we” specifically included past CIA Directors Gina Haspel, Mike Pompeo and members of their executive staffs), and showed him responding affirmatively to Jane Doe’s question of whether “the intel community used FISA [the Foreign Intelligence Surveillance Act] to spy on Trump and his team.” The posts also included O’Keefe’s commentary on Plaintiff’s statements and other topics related to purported intelligence community activity.

Plaintiff alleges that he suffered various professional repercussions from these publications, chiefly that one or more federal agencies placed a “flag” on his security clearance on an unspecified date, and that he has been rejected from multiple jobs and/or projects on clearance-related grounds, resulting in eight months of unemployment. Plaintiff also alleges, inter alia, “severe emotional distress … [f]ear and terror resulting from death threats directed towards him … [and] damage to his personal and professional reputation.”

Plaintiff sued, but the court rejected his misrepresentation claim:

In Food Lion v. Capital Cities/ABC, Inc. (4th Cir. 1999), two ABC news reporters used false identities to obtain jobs at branches of Food Lion’s grocery store chain in order to investigate the chain’s labor and food handling practices, and after being hired based on misrepresented identities and experience, they used hidden cameras and microphones to gather footage which was aired on a television news broadcast…. [T]he Fourth Circuit … [held that] Food Lion could not recover “publication damages,” which it defined as all damages resulting from the news broadcast itself, because those damages were reputational in nature and thus represented an attempt to circumvent the Sullivan standard for defamation claims by public figures….

All of Plaintiff’s claimed damages arise out of OMG’s publications, however characterized, and are therefore barred under Food Lion. Here, as in Food Lion, OMG’s publications, whether defamatory or “a product of misrepresentation,” were clearly a form of expression (viz., what Plaintiff said and what OMG claimed he said) and did not constitute the breach of a promise as in Cowles…. [T]he Fourth Circuit held that Food Lion was not entitled to publication damages without meeting the Sullivan standard “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Plaintiff’s claims to recover damages, all of which arise out of OMG’s publications, are therefore foreclosed by the First Amendment….

And the court rejected plaintiff’s Federal Wiretap Act claim; the federal law (unlike the laws of some so-called “two-party consent” states) allows secret recording that’s consented to by one party to the communication unless the “communication is intercepted for the purpose of committing any criminal or tortious act in violation of” federal or state law, and the court held this exception doesn’t apply here:

Plaintiff alleges that the recordings were made for the tortious purpose of defaming him; but while he concedes that he does not allege a defamation claim or rely on any defamatory aspect of Defendants’ public statements, he argues that his misrepresentation and conspiracy allegations provide the tortious purpose for the recordings.

The Purpose Provision requires an intent to commit a future tortious act. Here, the relied-upon misrepresentations all occurred before the publication of the recordings (viz: chiefly during the Bumble dating app messaging between Plaintiff and Jane Doe) and were part and parcel of Defendants’ scheme to obtain the recordings, not the purpose for which the recordings were intended to be used. Because Plaintiff has not otherwise plausibly alleged that Defendants intercepted his oral communications with the purpose of committing a subsequent tort or criminal offense, his wiretapping claim must be dismissed.

Earl Neville Mayfield, III (Juris Day PLLC), Benjamin Thomas Barr and Stephen Klein (Barr & Klein PLLC), and Dan Backer (Chalmers, Adams, Backer & Kaufman LLC) represent defendants.

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