Bob Barney has excellent commentary on our Constitution and The Bill of Rights, HERE!
‘A constitutional protection that disappears when a lawyer changes the label on the damages is no protection at all’
By Benjamin Barr, Real Clear Wire
Some constitutional victories arrive with trumpets. Others arrive quietly in a case the press has decided not to love, for a journalist many would rather not defend. Democracy Partners v. O’Keefe is one of the latter.
James O’Keefe is controversial. That’s no secret. In 2022, a Washington jury found against O’Keefe and Allison Maass, and the district court entered $130,000 in fraud and wiretapping damages arising from a 2016 investigation of Democratic political consultants. The Washington Post said the verdict “upends” Project Veritas’s journalism defense; Reuters presented it as the final rebuke of deceptive newsgathering. Recent headlines have described the appellate reversal as a court just “tossing” a $130,000 judgment. That is true. But it fails to capture the real achievement. So perhaps it is time to set the record, and a few headlines, straight.
For decades, an important First Amendment protection had developed a loophole. The Constitution sharply limits when public figures may recover damages for injury caused by what journalists publish. But some courts allowed plaintiffs to escape those limits simply by changing the name of the harm.
A plaintiff could try to evade the First Amendment rules governing reputational torts by calling the resulting damages “economic” or “non-reputational” – lost work, lost contracts, diminished prospects. But a constitutional protection that disappears when a lawyer changes the label on the damages is no protection at all. It is an invitation to plead around New York Times v. Sullivan and, for public figures, its requirements of falsity and actual malice.