I do not see that as an issue at all.  Why?  Because the government is not seizing mosques because they are mosques.  What it is doing is seizing land owned by an Iranian controlled company.  The fact that some of that land is currently used for religious worship is irrelevant to property law.

If that does not sound right to you, imagine a private corporation that owns some land, and rents one parcel to a church.  If that corporation sells all its land, or goes bankrupt and the land is foreclosed, the church does not have any more right to stay than any other renter.  It is a similar concept here:  for legal purposes, nothing at all is happening to the mosques, just to the mosques’ landlord.

The real issue, and where things will get sticky, is after the seizure.  Because unless the mosques are vacated before or during the seizure process, the government will then own four houses of worship.  That raises First Amendment issues all by itself, and then whatever the government decides to do after will be fraught with First Amendment concerns as well.

I applaud the decision to seize these assets, but I do not envy the person who will have to decide what to do with the mosques.

©2010 Zero Sheep. All Rights Reserved.

What I didn’t expect was that, while trying to out-Carter Carter in weak-kneed ineptitude internationally, he would also attempt to out-Nixon Nixon in domestic ham-fistedness and thuggery.

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Do, or do not . . . there is no try.

President Obama’s policies and intentions are arguably aimed at promoting peace, but no one can rationally claim that he has actually done anything yet.  (It is also arguable — with much better evidence– that Obama’s policies and intentions are aimed more at making Obama look good, rather than achieving any kind of concrete goal.)  The committee apparently succumbed to the siren call of amorphous Hope.  Or something.

The committee is made up of five Norwegian politicians.  That’s it.  No renowned thinkers, no experts on world events, just five former members of Norway’s parliament.  Think about that for a minute.  Then think of some of the stellar examplars of international peacemaking that have been previously honored, like Yassar Arafat.

Two of the last three Democrat presidents have now won the prize (Carter and Obama).  The one left out — Bill Clinton — actually did the most of the three in actually promoting peace (see, e.g., the Oslo Accords and subsequent peace process).

Two of the last three Democrats nominated to run for president have also won (Gore and Obama).  Poor Kerry.

Think about Al Gore’s award for a moment.  No matter your opinion of man-made global warming, how in the world does promoting consciousness of it qualify one for a prize that was established to reward:

the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.

So why Obama?  My favorite quote so far today:

Essentially, Obama’s award is for the outstanding achievement of “not only not being George W. Bush, but joining the rest of the world in blaming him for everything.”

Others are discussing the appropriateness of the prize, and the potential drawbacks for Obama, but one advantage is that it provides a useful litmus test.  Namely, how one defends the award to Obama pretty clearly separates out the true zombies from those who still have a few functioning brain cells.

UPDATE:

The Washington Post also notes the passing over of Bill Clinton, and reminds me of an example of his work toward peace for which he was more responsible than the Oslo Accords:  Northern Ireland.

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Moore must be disappointed that any tickets are selling.  After all, anyone truly accepting the capitalism-is-evil moral of the story should find a way to see the movie for free — if at all — instead of perpetuating this awful system that has made Moore millions.

©2010 Zero Sheep. All Rights Reserved.

©2010 Zero Sheep. All Rights Reserved.

I give the eternal campaign until about next Fall before it becomes the running gag that defines Obama’s presidency in the public’s minds.

Today, at Hot Air, Ed Morrissey writes:

We talk about the permanent campaign, but this is a little ridiculous. The best way to tell between campaigning and governing is that Obama appears most often now with a suit coat when in public. Otherwise, it’s all campaign, all the time — and he is outsourcing his leadership to Nancy Pelosi, who has run wild with a radical agenda.

He wanted to be President. Maybe he should spend some time being that, instead of the Oval Office Campaigner in Chief.

It’s not quite there with the general public, but, if anything, Obama has gotten worse instead of better and there is no sign of him wising up.  I think I may have been a little off in my prediction, but not by more than a few months.

©2010 Zero Sheep. All Rights Reserved.

By Wolf’s logic, any conversation that does not occur within the privacy of your own home with people you know and trust, is not a ‘private’ conversation.  I respectfully disagree.

Wolf, and the others making this argument, are correct that Maryland analyzes whether a conversation is private in much the same way that it looks at the ‘reasonable expectation of privacy’ in the Fourth Amendment search and seizure context.

In Katz v. U.S., the U.S. Supreme Court stated a two part-test for determining whether someone had a reasonable expectation of privacy:  First, there must be an actual, subjective expectation of privacy in the subject (here, the conversation); and second, that expectation must be “one that society is prepared to recognize as ‘reasonable.’”  U.S. v. Katz, 389 U.S. 347, 361 (1967).

The contents of the conversation are not relevant to the Katz inquiry, because they cannot be known until after the fact. For example, it is clearly not the law that police need a warrant to listen to you in your own home . . . unless you’re talking about a crime.  Regardless of the subject matter, a conversation under specific circumstances is either private or not, regardless of what is discussed.

In Malpas v. State, the case cited by Wolf, Maryland applied Katz to its wiretap statute.  In the Malpas case, the defendant introduced a tape-recorded conversation of a telephone conversation with the victim, Craigie.  The two lived in adjacent units of a duplex, and during the conversation Craigie was shouting so loudly that he could be heard through the dividing wall of the duplex.  In analyzing whether Malpas’s recording of the conversation violated the wiretap statute, and was thus inadmissiable, the court stated:

It is obvious that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. At 351, 88 S.Ct. at 511. Craigie could have no expectation of privacy in statements made in his apartment that were shouted so loudly as to be overheard by persons in the adjacent apartment. We do recognize that the “very fact that a person is in his own home raises a reasonable inference that he intends to have privacy, and if that inference is borne out by his actions, society is prepared to recognize his privacy.” United States v. Taborda, 635 F.2d 131, 138 (2d Cir. 1980). In this case, however, what Craigie chose to shout could not have been intended as words spoken in private.

It is a mistake to seize upon the first sentence of that paragraph as meaning that someone having a conversation with strangers (O’Keefe and Giles) in a public place (the ACORN office) could not have a reasonable expectation of privacy in that conversation.  I think Wolf’s main error in reaching his conclusion is in treating O’Keefe and Giles as third-parties to the conversation.

If they had walked in and heard Thompson and Williams talking, that would be a different issue.  But O’Keefe and Giles were parties to the conversation, and in fact initiated it.  Looking at this under the Katz framework, Thompson and Williams clearly had a subjective expectation of privacy — assuming, that is, that they would not have said what they did if they knew they were being taped, which I think is a safe assumption.  I also think that such an expectation is objectively reasonable, because that expectation does not depend on who is doing the recording or what was said.  Looking at it another way, if a police officer hiding in the bushes recorded the conversation, rather than the fake pimp and prostitute, would he have needed to get a warrant to do so?  I think the answer is clearly yes.

If you are talking on a crowded bus, or shouting so loud that the neighbors can hear you outside your house (as in Malpas), then it is not reasonable to expect that conversation to be private.  But if you are in someone’s office discussing taxes and mortgages, the mere fact that the office is in a publicly-accessible building does not make it unreasonable to expect that conversation to remain private.

All of that said, as commenter PaulD pointed out in the previous thread, there are sound and compelling public-policy reasons to refuse to allow ACORN, Thompson and Williams to treat this conversation as ‘private’ within the meaning of the statute:

There is a highly protected right of confidentiality in communications made between an attorney and a client called the attorney/client privilege. However, even “attorney/client privilege does not protect confidentiality when a client is seeking advice on how to break the law or when an attorney is giving such advice. This expresses a strong public policy that such conversations and advice should not be protected. If such criminal conversations between an attorney and a client are not protected, it seems reasonable that similar conversations between ACORN and the prostitute and pimp should not be protected as a matter of public policy.

Whistle-blower and similar laws also reveal a strong public policy in favor of revealing criminal activity.

PaulD also points that that if one or both of the employees had a duty to report suspected criminal activity — based on either ACORN policy or federal or state law — then that duty would trump any expectation of privacy.

However, just because public policy or specific facts of this case may prevent the conversation from being considered ‘private,’ arguing that it was not private simply because it took place in a office is deeply flawed.

UPDATE:

Leon Wolf has posted A Response to some Hot Air commenters, in which he points out that he has “litigated federal Wiretap Act cases, which makes me more informed than the average person (or even lawyer) to comment, especially since the Maryland Act is pretty clearly modeled after its Federal counterpart.”

Given that, I may be completely off base with my arguments, but would like to see some case law in support of his contentions before I decide.

UPDATE (9/24/09):

Leon Wolf again responds, this time to Ace’s post which discusses this one, and I recommend reading the whole thing.  I understand his point much better now, but still don’t agree that this is the slam dunk he portrays it as — but, again, he is apparently much more of an expert in this area than I am.  I would agree that there is no expectation of privacy in a the part of an office or business where the public may just walk in at any time, such as the reception area, but my understanding is that this took place in a conference room, or similar, where there would be no public access.  That may not make a difference under the law Wolf is discussing, but I think that, at the least, it should — if I’m in an office that is separate from the public area, I don’t see a distinction between discussing personal matters on the phone or speaking to a client in the office with me from a reasonable-expectation-of-privacy standpoint (as to my half of the phone conversation).

©2010 Zero Sheep. All Rights Reserved.

My first thought was that ACORN would have some trouble showing standing and damages.  After looking at the text of the complaint, my thought changed to, “Are you freaking kidding me?”  (Full text of the complaint here.)

My original thoughts are still valid, I think, but the complaint is so bad that I am having a hard time believing that this isn’t all just a joke (albeit a dry and not very funny one only a lawyer would get).

THE LAW

The relevant Maryland law is:

§ 10-402 CTS. & JUD. PROC. Intercepting, disclosing communications.

(a) Unlawful acts. — Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or

(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.

Oral communication is defined:

§ 10-401 CTS. & JUD. PROC. Definitions.

(2)(i) “Oral communication” means any conversation or words spoken to or by any person in private conversation.

Maryland law also allows a private right of action:

§ 10-410 CTS. & JUD. PROC. Civil liability for intercepting, disclosing communication; penalties; defense.

(a) Civil liability. — Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:

(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(2) Punitive damages; and

(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

THE FORMER EMPLOYEES

I think that Thompson and Williams have at least a colorable claim under these statutes.  It is pretty clear that O’Keefe and Giles did indeed ‘intercept’ (record) oral communication from Thompson and Williams, who worked for ACORN at the time.  It is also hard to deny that O’Keefe and Giles, with Breitbart’s help, published that recording as widely as they possibly could.

Barring a First Amendment argument that the statute is unconstitutional and/or does not apply here, I think liability is pretty easy to establish.

Damages, on the other hand, are more of a problem.  A plaintiff can recover either statutory (’liquidated’) damages of $1,000 or actual damages if they are higher — not both.  Here, all three plaintiffs are asking for the $1,000 liquidated damages in addition to actual (’compensatory’) damages each $500,000 each for Thompson and Williams, and $1 million for ACORN.

Whether or not those numbers are realistic, to get more than the statutory damages they have to show that O’Keefe and Giles actually caused the claimed damages.  So what do the plaintiffs allege?

22.     As a direct and proximate cause of the actions of defendants, Ms. Thompson and Ms. Williams have lost their employment and have suffered extreme emotional distress with attendant physical symptoms and injury to their reputations.

Really.  Lost their employment.  Apparently after being caught on video giving advice on setting up an underage brothel, they somehow misplaced their jobs.

Or, just maybe, they were fired.  According to the AP on September 10:

The nonprofit housing group ACORN has fired two employees at its Baltimore office who were seen on hidden-camera video giving advice to a man posing as a pimp and a woman pretending to be a prostitute.

. . .

Maryland ACORN board member Margaret Williams says in a statement the employees “did not meet ACORN’s standards of professionalism.”

So Thompson and Williams were fired by their co-plaintiff, ACORN.  And yet, it’s all the fault of O’Keefe, Giles, and Breitbart.

Now, the release of the video was clearly a cause of the firing, but the “direct and proximate cause” was their “failure to meet ACORN’s standards of professionalism.”  The video revealed that failure, but did not cause it.  Unless ACORN wants to argue that it was the revelation of the ‘failure’ — rather than the failure itself –  which led to the firing, Thompson and Williams are going to have a tough time proving causation as to their $500,000 compensatory damage claims.

ACORN

The thing that boggles my mind the most about this lawsuit is that ACORN and the two ex-employees are co-plaintiffs.  For example, in order for ACORN to show causation for its $1 million compensatory damages claim, it needs to show that it was harmed by the release of the video, not the actions of Thompson and Williams.  The only way I think ACORN could do that would be by throwing them under the bus and claiming that they were not acting on its behalf, the video unfairly makes them look responsible for what the two loose cannons said, and therefore it is the video which makes them look bad.

Instead of doing that, they have embraced Thompson and Williams by making them parties to this lawsuit — essentially standing behind their advice on how to open brothel and cheat on taxes.  So all that’s left for ACORN to argue is that the problem is not giving advice on how to run a criminal enterprise, but rather the public exposure of the fact that they give that advice.  The causation is a little closer here, in that the release of the video was a more direct cause of ACORN “suffer[ing] injury to its reputation.”  However, it is what the tapes show — the advice from Thompson and Williams — that is the more direct cause of the ‘injury’ to ACORN.

To back up for a minute, before ACORN can argue anything it has to show that it has standing.  In other words, it has to show that its communication was intercepted and published by the defendants.  If Thompson and Williams were doing their jobs, acting as employees and agents of ACORN, then it is pretty clear that ACORN would have standing.  If, on the other hand, they were just acting on their own, ACORN has no standing.  ACORN initially fired the two, so it would seem that it does not claim their pimp/hooker advice as its own.  But now it has filed this action as co-plaintiffs with its former employees.  Simply by filing this lawsuit, in my opinion, ACORN is admitting that Thompson and Williams were just doing their job, and ACORN has no problem with how they did it.

This is as good a time as any to note that the plaintiffs demand a jury trial in this case.  Think about that for a moment.  In a bench trial, where only the judge listens to the facts and decides, it is a lot easier to win on the letter of the law.  It seems to me like O’Keefe, Giles, and Breitbart are technically in violation of the statute, so if it were me I would go with the bench trial.  Here, ACORN is electing to stand in front of a jury and try to convince it that the defendants — not ACORN itself or its employees (which it already fired) — are to blame for the damage to its reputation after the defendants revealed that the local ACORN office was giving advice to pimps and hookers on how to set up a brothel for underage, illegal aliens, and then hide that money from the government.  That’s not an argument that I could make with a straight face, to a jury or not — but that may be why I am a research attorney, not a trial attorney.

PUNITIVE DAMAGES

The last item I want to touch on is punitive damages.  The plaintiffs claim:

25.     Defendants’ actions as aforedescribed were done intentially, willfully, in reckless disregard of the law, and with malice.

And then ask to the court for:

punitive damages in the amount of $1 million per defendant.

The ‘malice’ language in paragraph 25 of the complaint is key, because under Maryland law “an award of punitive damages must be based upon actual malice, in the sense of evil or wrongful motive, intent to injure, ill will, or fraud.”  Bowden v. Caldor, 350 Md. 4, 23, 710 A.2d 267, 276 (1998).

Now, I guess ACORN and the others can argue that O’Keefe, Giles and Breitbart harbor ill will as to ACORN, but unless they play fast and loose with accusations of racism I don’t see how they are going to argue any malice as to Thompson and Williams.  Even if they do play the race card, the number of videos from across the country, involving ACORN employees of different ethnicities, is going to make that one hard to swallow.

So again it comes back to convincing a  jury that it should punish people who exposed an amazingly corrupt organization that uses government money to advise people on how to get away with crimes and avoid paying taxes.  Maybe they do things differently in Baltimore, but that’s not something that would fly where I’m from.

UPDATE:

Ace links. Thanks!

UPDATE:

Ace mentioned an email to NRO from a lawyer, and I’m pretty sure this is what he was talking about.  I agree with most of the points this attorney makes, other than number two — I suspect he just missed the section of the complaint that quotes s. 10-410.

UPDATE (9/23/09):

I’ve followed up with an analysis of the issue of whether or not the conversation in this case could be considered ‘private’ under the meaning of the statute.  See it here.

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What it boils down to, though, is the Left’s reluctance (intentional according to Sayet) to recognize anything as objectively right or wrong.  The purpose, he argues, is that big “L” Liberals believe that accepting the existence of moral right is root of all conflict; in other words, if nobody is ‘wrong,’ then there will be no war, and therefore no poverty, etc.

Both his argument and the argument he ascribes to Liberals are susceptible of criticism — for example, Liberals do in fact believe in good and bad:  war is ‘bad,’ as is inequality of results, etc. — but he has good points.  I do believe, as he posits, that Liberals want to dumb down the notions of right and wrong so that nothing is considered ‘wrong’ — one need only listen to or watch Leftist politicians or activists to realize this is true, at least to some extent.

Sayet’s biggest fear though, and what seems to be the focus of his speech, is that through control of the education system and entertainment industry the Left will achieve — is achieving — this goal.  There was another article I read recently that was very similar, and I wish I could remember it because it was very good as well.

However, I tend to disagree on the whole ‘youth being brainwashed’ front.  Education is certainly being dumbed down in this country, but it is hardly homogeneous.  There is too much local variance to claim that all youth are being subject to losing their moral bearings based on moral relativism taught in the classroom.  Even to the extent it is, though, I believe it is counteracted by the very thing that Sayet believes abets this message — popular culture.

Sayet cites the encouragement of sexual promiscuity as his example of pop culture corrupting the youth.  He may or may not be right in that respect — which is debatable if you look beyond the 1950s, the Golden Age of American morality.  Middle class morality, as such, depends on the existence of a stable, prosperous middle class which is a newcomer to history.

Most of pop culture tends to counter Sayet’s fear that the concepts of right and wrong are being debased, though.  While I was thinking over his points, my mind wandered to Terry Goodkind’s Sword of Truth novels.  The series tends to become a bit repetitive and preachy in the later books, but the subtle-as-a-train-wreck point of them is that the rejection of moral values and personal responsibility is a terrible evil.  It would certainly seem, based on the philosophy of his books,  that Goodkind is no Liberal.

That got me thinking further.  Other than self-consciously ‘literary’ books — for which moral relativism is nearly a requirement, and which are aimed at self-proclaimed intellectuals (i.e., Liberals) anyway — novels actively rely on notions of good and bad.  For the very simple reason that a story requires conflict in order to be interesting.  As Sayet points out regarding the Liberal worldview, conflict does not exist in a world where there are not even shades of gray.

When I am reading for pleasure, I tend to gravitate toward the fantasy genre, which relies with few exceptions on very clear-cut divisions between good and evil.  Other genres may not touch on the subject as directly, but there is almost always going to be some good that the protagonist is working toward, and something (or someone) bad he or she is trying to avoid or defeat.

The same holds true for action movies — one of, if not the, most common and popular type of movies — and video games.  Looking past the violence,* there are very definite good guys and bad guys.  There is good and evil.  Movies that try to sell moral relativism (see most recent movies featuring Iraq) tend to flop, because they are inherently boring and preachy and/or internally inconsistent (trying to sell right and wrong while claiming there is no right and wrong).

Moral relativism may continue its creeping spread, but as long as people enjoy a story of good triumphing over evil, I believe that moral relativism is ultimately doomed.  Good can triumph over forced mediocrity (as in the Goodkind stories), but mediocrity doesn’t triumph over anything.  Not in a good story, anway — and therefore not in the psyche.

—

*Those that deplore violence in popular entertainment should look back over the centuries and realize that in the context of public hangings and floggings, and the general brutality of life for the majority of mankind for the vast majority of history, a little fictionalized violence is pretty inconsequential.

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h/t The Jawa Report

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