🚨THE FIRST AMENDMENT ON TRIAL IN D.C.

[00:00:00] The First Amendment on trial. We're in [00:00:02] the DC Circuit Court of Appeals. The [00:00:05] case Democracy Partners versus James [00:00:07] O'Keeffe [music] and Project Veraritoss. [00:00:09] >> So, what's the First Amendment problem? [00:00:11] >> First Amendment problem is this should [00:00:13] not have gone to a jury at all. [00:00:14] >> Okay, good. I'm going to record [00:00:16] everything I hear here and I'll share it [00:00:18] as I please and then I can get away with [00:00:20] it because I'll say it's first amendment [00:00:23] protected. Oh, come on. [00:00:25] >> That's what investigative journalists [00:00:27] do. This determination by this court [00:00:29] decides whether undercover reporting can [00:00:32] exist in the nation's [music] capital [00:00:34] moving forward. [00:00:35] >> Whether this Miss Ma was a fiduciary or [00:00:38] not, if she was, then that's the end of [00:00:41] muck raiki. [00:00:42] >> Here are the issues before the federal [00:00:45] appeals court in Washington DC. Issue [00:00:48] one, is it fraudulent misrepresentation [00:00:50] for an undercover reporter to [00:00:51] misrepresent themselves and do [00:00:53] undercover journalism in the District of [00:00:55] Columbia? Does the alleged harm or [00:00:58] damage come out of the infiltration or [00:01:02] investigation itself or the publication [00:01:04] of the video? Now, we're arguing here [00:01:07] that the harm is coming out of the [00:01:10] publication. Therefore, it's covered by [00:01:12] the First Amendment. Sometimes [00:01:14] journalism leads to people getting [00:01:16] fired. Sometimes journalism leads to [00:01:19] people losing their contracts because of [00:01:21] the words that came out of their mouth. [00:01:23] They're arguing the harm was due to the [00:01:25] act of going undercover, which is we [00:01:28] think is false. Issue two, is there a [00:01:31] fiduciary duty? Do we do I owe a [00:01:34] fiduciary duty to the Hillary Clinton [00:01:36] democracy partners people simply because [00:01:38] I was undercover inside of them? More [00:01:41] specifically, can our undercover intern, [00:01:44] who is a part-time, unpaid, and who did [00:01:46] not sign an NDA, can she have a [00:01:49] fiduciary duty hoisted on them [00:01:51] unilaterally? Now, we had litigated to a [00:01:53] jury in DC in September of 2022. We won [00:01:57] on three counts and lost on two. This [00:02:00] was a story involving a group called [00:02:02] Democracy Partners and Bob Kremer [00:02:05] admitting they were paying people to [00:02:07] bird dog at Trump events in 2016. [00:02:11] >> She was one of your activists [00:02:12] >> who had been who had been trained up to [00:02:14] bird dog. [00:02:15] >> Yes. [00:02:16] >> So, the term bird dogging, [00:02:19] you put people in the line. Mhm. [00:02:22] >> at the front. Which means they have to [00:02:24] get there at 6:00 in the morning so that [00:02:26] they're getting the front [00:02:28] >> of the rally so that when Trump comes [00:02:30] down the rope line, they're the ones [00:02:34] asking him the question in front of the [00:02:35] reporters because they're pre-placed [00:02:37] there. [00:02:38] >> Scott Foval admits on the hidden camera [00:02:41] they hire homeless people to do quote [00:02:43] crazy [ __ ] and they don't care what the [00:02:46] legal and ethics people say. Quote, "We [00:02:49] want to win this motherfucker." I've [00:02:51] paid off a few homeless guys to do some [00:02:53] crazy stuff and I've also taken them for [00:02:55] dinner and I've also made sure they had [00:02:57] a hotel. [00:02:57] >> It doesn't matter what the freaking [00:03:00] legal and ethics people say. We need to [00:03:02] win this mother. [00:03:04] >> Bob Kremer was fired. The DNC cut the [00:03:07] contracts and Donald Trump mentioned [00:03:09] these videos in the debate with Hillary [00:03:11] Clinton in Las Vegas in 2016. Now, the [00:03:15] undercover journalist Allison Moss had [00:03:17] an unpaid internship, didn't sign the [00:03:20] NDA, and got inside this group, War [00:03:23] Hidden Camera, while working for me at [00:03:25] Project Veritas in 2016. And now, [00:03:28] Democracy Partners seeks $1 million in [00:03:31] damages against me for, get this, breach [00:03:35] of fiduciary duty, and at the time, [00:03:37] unlawful interception of oral [00:03:38] communications, trespass, fraudulent [00:03:41] misrepresentation, and civil conspiracy. [00:03:43] It goes to a DC jury trial in September [00:03:47] of 2022. We litigate all the way to the [00:03:50] end and we lose. We get $120,000 in [00:03:55] damages against us. Now, what's [00:03:57] interesting in the case is the judge [00:03:59] sent the jury back two times before they [00:04:02] got the right decision. That's a story [00:04:05] as well. But here the issues in this [00:04:08] case, we are fighting for the first [00:04:10] amendment itself. The right of a [00:04:13] reporter to repeat back what someone [00:04:15] tells them. One party consent recording [00:04:18] in Washington DC. As my attorney Ben Bar [00:04:22] says, if it's fraudulent [00:04:23] misrepresentation in this case, then [00:04:26] undercover journalism is effectively [00:04:28] banned. We'll show some audio from [00:04:30] inside the DC Circuit Court of Appeals [00:04:32] and then go to correspondent Mike Casey [00:04:34] who was on the ground in Washington on [00:04:36] Thursday to interview Ben Bar. Now in [00:04:39] the circuit courts, that's one above the [00:04:41] federal district court and one below the [00:04:43] Supreme Court. We present to a panel of [00:04:45] three appellet judges. First, Judge [00:04:47] Robert L. Wilkins appointed by Obama, [00:04:50] Judge Karen L. Henderson, appointed by [00:04:52] George HW Bush. And Harry T. Edwards [00:04:54] appointed by Carter. Now, we'll take you [00:04:56] inside the courthouse there in DC where [00:04:59] correspondent Mike Casey is standing by. [00:05:02] >> This is Michael Casey with O'Keefe Media [00:05:04] Group reporting outside the DC Circuit [00:05:06] Court of Appeals where I just got out of [00:05:08] oral arguments in the matter of [00:05:10] Democracy Partners versus James O'Keefe [00:05:12] where both sides presented their [00:05:13] arguments to a panel of three federal [00:05:16] judges. [00:05:16] >> Good morning, honors. My name is [00:05:18] Benjamin Bar and I represent the [00:05:20] appellants James O'Keefe and Allison [00:05:22] Moss. I'd like to reserve three minutes [00:05:24] for rebuttal. [00:05:26] No non-disclosure agreement, no salary, [00:05:29] no authority, just none paid intern [00:05:32] clipping newspaper articles, saving [00:05:34] videos, taking messages. This is who [00:05:36] Allison Moss was inside Democracy [00:05:39] Partners, the lowest rung on the ladder. [00:05:41] Yet, because she recorded what she saw [00:05:43] and later shared it with the public, the [00:05:45] verdict below reimagines her as three [00:05:47] things as once. A fraudster, a [00:05:49] fiduciary, even a potential criminal. [00:05:52] This inversion of reality should give [00:05:54] pause to this court. If accepted, the [00:05:56] appelles theory would allow New York [00:05:58] Times v. Sullivan to be nullified by [00:06:01] creative pleading. Fiduciary law is [00:06:04] meant to protect is meant to restrain [00:06:06] those with power, not to conscript the [00:06:08] powerless into silence. [00:06:10] Fraud is meant to remedy harmful deceit, [00:06:13] not to punish truthful exposure. and the [00:06:16] first amendment does not tolerate a [00:06:17] regime in which the least powerful [00:06:20] person in the room is transformed into [00:06:21] the guardian of Washington's political [00:06:24] secrets. This court should restore [00:06:26] common sense and reaffirm the [00:06:28] constitutional principle that [00:06:29] journalists may not be punished for [00:06:31] truthful reporting simply because the [00:06:33] truth was uncomfortable. [00:06:34] >> Benbar also argued that this should have [00:06:37] never gone before a jury ever and he [00:06:39] believes they made an impassioned [00:06:40] decision that was hasty and rushed. [00:06:42] That's why James O'Keefe appealed this [00:06:44] and it's why it's in court now. [00:06:46] >> My understanding is that there was no [00:06:48] objection below to the jury instructions [00:06:51] on fraudulent misrepresentation. [00:06:54] >> That's correct, your honor. [00:06:56] >> And those jury instructions [00:06:58] made clear that the verdict wasn't based [00:07:02] on publication. It was based on [00:07:05] infiltration. Right. [00:07:07] >> Yes, your honor. [00:07:08] >> So, what's the first amendment problem? [00:07:10] First amendment problem is this should [00:07:11] not have gone to a jury at all. As a [00:07:13] matter of law, it should have already [00:07:15] been uh decided in favor of the [00:07:17] appellance and this was raised both at [00:07:19] motion dismiss and rejudgement rule 58. [00:07:22] At issue here is the idea that the [00:07:24] lawsuit wasn't over defamation. I was [00:07:27] not sued for defamation. They're not [00:07:28] alleging that what you're seeing isn't [00:07:30] true. Everything that you saw in the [00:07:32] videos happened. They didn't litigate [00:07:34] that. Now, at trial, they tried to make [00:07:36] hyperbolic arguments about selective [00:07:38] editing. They tried to sneak a [00:07:40] defamation style case into this case. [00:07:44] But this is over the idea that the [00:07:46] undercover infiltration itself led to [00:07:49] the suspension of the contracts and the [00:07:51] damage. But the problem is it was the [00:07:53] publication of the footage that led to [00:07:55] all these things happening. For example, [00:07:57] if we didn't publish anything, people [00:07:59] would not have been fired. If the video [00:08:01] didn't get 7 million views on YouTube, I [00:08:03] doubt anybody would have cared. if [00:08:05] Donald Trump didn't talk about it at the [00:08:07] debate. This wouldn't be a lawsuit. So, [00:08:09] all of this flies in the face of the [00:08:11] First Amendment itself. In other words, [00:08:12] it's not a fact issue. It's a legal [00:08:15] issue. And there's a lot of Supreme [00:08:16] Court precedent that we mention in this [00:08:18] hearing. Hustler v. Fwell, New York [00:08:21] Times versus Sullivan. [00:08:22] >> What are we saying is that the harm that [00:08:24] that stems from misrepresentation [00:08:27] has to arrive directly out of that [00:08:30] infiltration or misrepresentation. But [00:08:32] where there are publication issues in [00:08:35] front where there's news gathering [00:08:36] involved if the alleged harm stems from [00:08:40] the publication then we have a profound [00:08:42] first amendment issue here. [00:08:43] >> So what's the first amendment problem? [00:08:45] >> First amendment problem is this should [00:08:47] not have gone to a jury at all. As a [00:08:49] matter of law it should have already [00:08:50] been uh decided in favor of the [00:08:53] appalent. Cohen says that we look to [00:08:55] laws of general applicability in that [00:08:58] those don't offend the First Amendment [00:08:59] with some special journalistic immunity. [00:09:02] And we're not arguing in favor of any [00:09:04] sort of journalistic immunity. We're [00:09:05] arguing about proximate cause here. and [00:09:08] that where there's an intervening [00:09:09] publication that causes the damage at [00:09:12] issue that you have to meet New York [00:09:14] Times v Sullivan standard otherwise [00:09:16] you're maneuvering around just as [00:09:17] Hustler said and that can't be done [00:09:19] whether a jury's blessed that or not as [00:09:22] a matter of law that's where we're at [00:09:24] and this is this the the publication the [00:09:27] fact that this is a publication damage [00:09:30] tracks with with clock-like precision [00:09:32] the exact timeline here uh and it's [00:09:35] similar to what happened in food line [00:09:37] >> now food line was a case in the 1990s [00:09:39] where ABC News Diane Sawyer and her [00:09:41] outfit was sued for quote fraudulent [00:09:44] misrepresentation when the reporters [00:09:46] went undercover in the grocery store put [00:09:47] hidden cameras in their wigs and film [00:09:49] the meat being bleached. Now, that [00:09:52] lawsuit was overturned in the Fourth [00:09:55] Circuit Court of Appeals in North [00:09:56] Carolina. What's interesting about that [00:09:58] is that these cases might go to the [00:10:00] Supreme Court on the First Amendment [00:10:02] rights of an undercover journalist. And [00:10:04] there are lots [clears throat] of cases [00:10:05] where folks come away saying, you know, [00:10:07] but I don't really like the jury result. [00:10:09] And I have a good argument. Maybe, [00:10:12] but if the jury did what it was supposed [00:10:14] to do and they were properly instructed, [00:10:16] you lose. [00:10:17] >> And here the jury didn't do what they [00:10:19] were supposed to do. Cohen stands in [00:10:21] tension with cases like New York Times [00:10:23] v. Sullivan and Hustler. Hustler reminds [00:10:26] this court. [00:10:27] >> Cohen takes care of your so-called [00:10:29] Hustler argument and you have no answer [00:10:31] for that. Uh well well the answer is [00:10:34] twofold. One that it shouldn't have gone [00:10:37] to the jury as a matter of law. [00:10:38] >> I understand you say that. [00:10:40] >> Yeah. And and this court is a [00:10:41] constitutional gatekeeper has its own [00:10:43] duty to review the whole record below [00:10:45] and to see that the damages were tied to [00:10:47] publication not to the infiltration. [00:10:50] Second that we meet the high standard [00:10:52] here that when we look at this timeline [00:10:54] that I just walked through this lines up [00:10:56] perfectly with food lion. It lines up [00:10:59] perfectly with Desnic in other sister [00:11:02] circuits finding that where the evidence [00:11:05] points towards a finding that the harm [00:11:08] comes out of embarrassment from this [00:11:10] publication then we have a hustler [00:11:14] problem, a food line problem and the [00:11:16] like. [00:11:16] >> What also stood out to me was they [00:11:18] argued that she had a fidiciary duty. [00:11:21] Fidiciary duty is reserved mostly for [00:11:23] major corporate CEOs, the biggest [00:11:26] managers of of the biggest companies. [00:11:28] Not for unpaid interns, not for [00:11:30] undercover journalists. Journalists have [00:11:32] fidiciary duties now to companies. That [00:11:35] has never been heard of before, ever. [00:11:37] And as Ben Bar pointed out, there's been [00:11:39] numerous cases and and sister circuit [00:11:41] courts that have fidiciary duties for [00:11:44] major CEOs, but never for an unpaid [00:11:45] intern, never for a journalist. This be [00:11:47] the first of its kind. [00:11:49] >> We turn to fiduciary duty and the [00:11:51] finding of a fiduciary duty owed by [00:11:54] Allison Moss to Democracy Partners. That [00:11:56] of course is the predicate for the [00:11:58] wiretapping claims here. Of course in DC [00:12:02] it's an open-ended test. That doesn't [00:12:03] mean a boundless test. What is the [00:12:06] nature of the relationship? The promises [00:12:08] made, the types of services or advice [00:12:09] given, legitimate [clears throat] [00:12:11] expectations of the parties. But [00:12:13] immediate problems here are that [00:12:14] fiduciary obligations arise only in rare [00:12:17] relationships of heightened trust [00:12:19] independence where one party proposes a [00:12:22] special confidence in in the other and [00:12:25] the other accepts that sort of a meeting [00:12:27] of the minds. Mouse was a temporary [00:12:30] unpaid intern, not an officer, not an [00:12:32] adviser. She wasn't entrusted with [00:12:34] managing any sort of affairs. She had no [00:12:36] contract, no confidentiality agreement, [00:12:38] no decision-making power within the [00:12:40] organization. and you walk out of the [00:12:43] room and say, "Good. I'm gonna record [00:12:45] everything I hear here and I'll share it [00:12:47] as I please and then I can get away with [00:12:49] it because I'll say it's first amendment [00:12:52] protected." Oh, come on. [00:12:54] >> Well, yes. No, your honor. Absolutely. [00:12:56] Yes. But the that's what investigative [00:12:58] journalists do and that's why major [00:13:00] reforms [00:13:00] >> they do, but sometimes they may take a [00:13:02] chance. That's what this case is [00:13:03] releasing. It has to be within the law. [00:13:05] There's no [00:13:05] >> It has to. [00:13:06] >> Yeah. [00:13:07] >> But there may be a risk. We're we're not [00:13:10] we're not arguing any sort of special [00:13:11] journalistic immunity, right? The [00:13:14] Supreme Court has said, "No, you can't [00:13:15] you can't win on that." [00:13:16] >> No, we can't. Absolutely not. But what [00:13:18] we can win on is the fact that this is [00:13:20] again related to publication damages and [00:13:23] that the finding of a fiduciary standard [00:13:25] here is is absurd. Now then, one of the [00:13:27] judges pointed out that if this [00:13:29] fiduciary standard applies, if there's a [00:13:31] fiduciary duty of a reporter in DC with [00:13:35] one party consent, she says, quote, [00:13:37] there's no more muck raking. [00:13:40] >> Ask you a question that unless I'm [00:13:42] misreading the record, whether this Miss [00:13:45] Ma was a fiduciary or not, and I don't [00:13:49] think she was. If she was, then that's [00:13:50] the end of Mukrai. I [00:13:53] >> I take your point, your honor. Yes, it's [00:13:55] it's absolutely important. And to your [00:13:56] point, this does this this determination [00:14:00] by this court decides whether undercover [00:14:03] reporting can exist in the nation's [00:14:05] capital moving forward and we'd ask that [00:14:08] you reverse and remand accordingly. [00:14:10] >> I do have one question. [00:14:11] >> Oh yes. [00:14:12] >> You um agree that Kramer is a limited [00:14:18] purpose public figure. [00:14:21] >> Yes. Uh Mr. Kramer's uh wellknown [00:14:24] involved in political circles is married [00:14:27] to a former congresswoman from Chicago. [00:14:30] Uh I think that adequately meets New [00:14:32] York Times Sullivan public figure status [00:14:35] test. [00:14:35] >> Then a man named Mr. Sandler, that's the [00:14:38] attorney for Bob Kameur took over. [00:14:40] Defendants claimed in their reply brief, [00:14:43] and council alluded to it, that if the [00:14:45] verdict in this case is allowed to [00:14:47] stand, it would quote set a dangerous [00:14:49] precedent, effectively ending undercover [00:14:52] reporting and investigative journalism. [00:14:54] >> Mr. Sandler, I'm very hard of hearing. [00:14:57] Could you either get get closer to the [00:15:00] microphone or get it closer to you? [00:15:02] >> Can you can you hear me now? [00:15:03] >> That's better. [00:15:04] >> Okay. Thank you, sir. uh said defendants [00:15:06] claim in their reply briefs that if if [00:15:08] the verdict in this case is allowed to [00:15:10] stand, it would quote set a dangerous [00:15:12] precedent effectively ending undercover [00:15:15] reporting and investigative journalism [00:15:17] end quotes. And leaving aside that this [00:15:20] verdict has stood for more than 3 years [00:15:22] with no noticeable effect on [00:15:24] investigative reporting or journalism. [00:15:26] That assertion is simply not true. And [00:15:29] it's not true because with respect to [00:15:31] the fraudulent misrepresentation count, [00:15:34] the district court, two different judges [00:15:36] who presided over this case, indeed kept [00:15:39] the first amendment constraints, the [00:15:41] hustler doctrine could top of mind such [00:15:44] that, in the words of the district court [00:15:46] itself, that court quotes only permitted [00:15:48] plaintiffs to proceed to trial with [00:15:51] claims predicated on harms caused by [00:15:54] defendants non-expressive conduct. uh in [00:15:57] particular, the jury was carefully [00:15:59] instructed to that effect uh as the [00:16:02] council's exchange with with uh Judge [00:16:04] Wilkins noted and defendants do not [00:16:06] challenge uh those instructions in this [00:16:09] appeal. The expressive cond the [00:16:12] non-expressive conduct uh that was [00:16:15] [clears throat] found to be a a [00:16:17] approximate cause of the damages [00:16:20] sustained by Mr. Kramer and his company [00:16:23] was the infiltration by Ms. MOAS of the [00:16:26] offices of Democracy Partners and that [00:16:29] included not only access to the private [00:16:31] offices in that company but also inside [00:16:34] the headquarters building of the [00:16:35] Democratic National Committee and of a [00:16:37] major labor union. The access was [00:16:40] evidence showed that the access was all [00:16:42] made possible by an elaborate web of [00:16:44] falsehoods and misrepresentations [00:16:47] and that in the course of that [00:16:48] infiltration, Ms. Moss videoed literally [00:16:51] everything she saw and heard all day [00:16:53] long without regard to whether the [00:16:55] person she was taping was the subject of [00:16:57] any journalistic interest, just taping [00:17:00] everything to see if anything [00:17:01] interesting turned up, including people [00:17:03] she didn't even know who they were when [00:17:05] she started the day. [00:17:06] >> And nothing did. Nothing that she [00:17:08] recorded or taped or looked at or [00:17:12] whatever um was the the subject of a [00:17:16] publication. That is Yes, that that is [00:17:20] true. That is true. Uh and that's right. [00:17:24] The actual contents of the video [00:17:28] virtually entirely a conversationist [00:17:31] with Mr. Foval recorded in a bar with [00:17:34] Mr. Kramer in a hotel lobby and in a [00:17:38] restaurant. We didn't challenge any of [00:17:39] that [clears throat] [00:17:40] because it didn't that wasn't had we [00:17:43] challenged that say that was [00:17:45] embarrassing and you selectively edited [00:17:47] it then [clears throat] we would have [00:17:48] had to meet the hustler standard and [00:17:50] show and tried it as you know pleaded it [00:17:53] and and tried it as a defamation case [00:17:55] but that wasn't the case here. The jury [00:17:59] found that approximate cause was the [00:18:02] infiltration itself. Uh and you know if [00:18:06] the if the issue is whether a reasonable [00:18:08] jury could have found with all [00:18:10] inferences resolved in claims favor that [00:18:13] a substantial factor in the decision of [00:18:15] ASME to cancel its contract uh with Mr. [00:18:19] Kramer's company struggle. Do you think [00:18:21] if the video had not come out and that [00:18:25] this Miss Ma just had all this collected [00:18:27] stuff and she either kept it or gave it [00:18:30] to uh [00:18:33] O'Keefe [00:18:35] that that uh this organization that [00:18:38] Scott Fry heads up would even know about [00:18:42] it would have any uh reason to cancel [00:18:46] the contract. [00:18:47] >> It would be speculative whether he would [00:18:48] whether uh Mr. Kramer would have [00:18:51] mentioned the well actually the if the [00:18:54] video had not come out uh they wouldn't [00:18:57] even know that the whole thing was a the [00:18:59] whole internship was a was a fake to [00:19:03] your point Judge Ed we are asking a lot [00:19:06] I understand this is a a unique case [00:19:08] this is about the borderline of [00:19:11] protecting first amendment rights as [00:19:14] constitutional gatekeeper under Bose and [00:19:17] to judge Henderson's point claymore [00:19:19] Moore Hustler both indicate juries get [00:19:22] impassioned about these sorts of issues. [00:19:26] They decide these issues wrong and where [00:19:27] the first amendment is implicated, there [00:19:30] is a role for this court to be involved [00:19:32] different from almost any other case [00:19:35] that would be before this court. I just [00:19:37] want to reemphasize that here. The [00:19:40] finding of a fiduciary duty here is [00:19:43] incredibly difficult and absurd in [00:19:45] comparison to what we have shown [00:19:48] nationwide and within DC in terms of [00:19:51] precedent. There is absolutely no [00:19:54] evidence from the record below of direct [00:19:56] instructions from democracy partners [00:19:58] about confidentiality. [00:20:00] >> OMG correspondent Mike Casey caught up [00:20:02] with my lawyer Ben Bar outside the [00:20:05] courthouse and asked for his take on how [00:20:08] it went. I'm here redside the DC circuit [00:20:10] court of appeals with the attorney for [00:20:12] James O'Keefe Ben Bar in this case. Ben, [00:20:14] nice to meet you. Uh, can you give us [00:20:16] your synopsis of how this oral arguments [00:20:17] went today? [00:20:18] >> Nice to meet you, Mike. Yeah, it was a [00:20:20] terrific argument from the DC circuit. [00:20:22] This is Democracy Partners v. James [00:20:24] O'Keefe and Allison Moss, and it's about [00:20:27] testing the boundaries of undercover [00:20:29] journalism. When an undercover [00:20:31] journalist goes into an operation, do [00:20:34] they commit fraud by telling white lies [00:20:37] to an organization so they can report on [00:20:40] information to the American public? You [00:20:42] know, past undercover reporting case [00:20:44] law. ABC used to do these sorts of [00:20:46] things all the time in the '9s. Uh the [00:20:49] case law says for the First Amendment, [00:20:52] that's not the sort of fraud that we [00:20:54] punish in in America. So if you're going [00:20:56] out, you're telling these innocent white [00:20:58] lies and you're doing so to produce [00:21:01] newsworthy information to the American [00:21:03] public, that's protected. And it's [00:21:05] especially poignant here in the capital. [00:21:07] This is where Watergate occurred. This [00:21:09] is the home of numerous scandals. And we [00:21:12] need that ability to be able to show [00:21:13] this to the American public, not to use [00:21:16] fake trumped up tors about owing some [00:21:19] highlevel duty by an intern to a group. [00:21:22] Undercover reporters don't have that. [00:21:24] Not fraud, not not unless a you know a [00:21:27] journalist goes in and commits a serious [00:21:28] wrong. I'm all for you hold journalists [00:21:31] accountable if they go in and they and [00:21:33] they overstep. And there have been times [00:21:35] when that when that happens. That's not [00:21:37] this case. This is a special case about [00:21:40] press freedom, even whistleblower [00:21:42] freedom uh within this town. And we [00:21:45] don't want to shut down the ability of [00:21:47] investigative undercover journalists [00:21:48] from doing this in the future. Your [00:21:50] president will carry ramifications here [00:21:53] and throughout the country. Please [00:21:55] decide this correctly. [00:21:57] >> Yes. And uh you had a good back and [00:21:59] forth with Judge Henderson regarding [00:22:00] this. How you said this shouldn't have [00:22:01] gone to a jury trial at all. [00:22:03] >> Correct. Well, you know, so the Supreme [00:22:06] Court has particular cases and and [00:22:08] Hustler v. Fwell is one in particular [00:22:11] dealing with a very incendiary difficult [00:22:14] issue where Hustler magazine portrayed [00:22:16] the Reverend Fowlwell in a very um [00:22:18] unfriendly light and and they their [00:22:22] Hustler won their their case because [00:22:24] Fwell claimed well that this hurt me so [00:22:27] it was an intentional infliction of [00:22:28] emotional distress and the jury found [00:22:31] found that to be true. So it's similar [00:22:33] to what we heard Judge Edward say today. [00:22:35] Well, the jury already decided this. And [00:22:37] I politely reminded Judge Edwards, I [00:22:39] don't know how many times that juries [00:22:42] often get these things wrong. And [00:22:43] Hustler says, when we interject First [00:22:46] Amendment core issues and we have [00:22:48] controversial subjects and in Hustler, a [00:22:51] pornography magazine here in Undercover [00:22:54] uh journalism outfit, juries often get [00:22:56] it wrong. They get impassioned and and [00:22:58] we don't trust core liberties to juries. [00:23:01] We say that the as a matter of law, a an [00:23:04] elite judge trained in the law, steeped [00:23:06] in constitutional tradition should [00:23:08] interject and say, "No, this is this is [00:23:10] off limits. No matter what their opinion [00:23:12] is of this, it is protected expression [00:23:15] and we allow that in America." [00:23:17] >> Another great irony in this whole [00:23:19] episode is is that Project Veritoss [00:23:21] fired me. And part of the reason the [00:23:23] board did or one of the many seemingly [00:23:26] absurd reasons is that I spent too much [00:23:29] money on litigation. That I should not [00:23:31] be litigating this case all the way to [00:23:33] the Supreme Court. That I should should [00:23:35] spend those resources on other things. [00:23:37] But it wasn't me that recorded these [00:23:40] recordings. It wasn't me that was out [00:23:42] there in the field. That would have been [00:23:43] Christian Heartsock. [00:23:45] And one of the great ironies is that, [00:23:47] you know, we find ourselves taking [00:23:50] bullets for those people personally even [00:23:52] right now raising hundreds of thousands [00:23:54] of dollars to make sure that we're [00:23:56] indemnifying their reporting because [00:23:59] we're the face or I'm the face of the [00:24:01] organization and therefore I take on [00:24:03] that responsibility and that liability. [00:24:05] But you kind of have to stand in awe of [00:24:08] the irony of them wanting to be the face [00:24:11] without wanting that accompanying [00:24:13] responsibility. That's a story for [00:24:14] another day.