DC appeals court sides with James O’Keefe, tosses $130,000 judgment over 2016 election undercover video

The US Court of Appeals for the DC Circuit ruled that the jury’s damages award issued after a trial violated the First Amendment. Circuit Judge Karen LeCraft Henderson, writing for the majority, said, “The principal question in this appeal is whether the jury's damages award violated the First Amendment by punishing the defendants for publishing a news story. We conclude that it did.”

The case centered around a video released by O’Keefe’s former organization, Project Veritas, weeks before the 2016 presidential election titled “Rigging the Election.” The video alleged that Democracy Partners, Creamer’s firm, had been working with Democratic operative Scott Foval to stage violence at Trump rallies. The video included undercover footage from Allison Maass, who used a fake name and fabricated resume to get an unpaid internship at Democracy Partners in September of 2016.

In 2022, a jury awarded $120,000 on the fraudulent-misrepresentation claim, with another $10,000 being agreed upon in statutory damages on the wiretapping claims. The jury found that Maass was a fiduciary of Democrat Partners, and had breached that duty when she recorded the conversations.

The appeals court disagreed with how the judge at the trial had let the jury calculate losses, holding that when a defendant’s protected speech is mixed with unprotected conduct, a plaintiff must show the unlawful conduct was the main cause of the harm, not the speech.

"The First Amendment required Creamer to show that the defendants' unlawful conduct, rather than protected speech, was the prevailing cause of his damages," the majority said. "But the record proved the opposite. Because the protected content of the Rigging the Election video was the principal cause of Creamer's lost contracts, the resulting damages award impinges on the First Amendment."

The ruling stated, “The principal question in this appeal is whether the jury’s damages award violated the First Amendment by punishing the defendants for publishing a news story. We conclude that it did. The separate issue is whether, under D.C. law, one of the media defendants became the fiduciary of her own news target by tricking him into hiring her as an unpaid intern. We conclude that she did not.”

Creamer had argued that the infiltration of his firm cost it multiple contracts. The American Federation of State, County and Municipal Employees, which canceled a contract with the group, testified that it was the video, not the internship infiltration, that caused the contract to be canceled.

The wiretapping verdict was also reversed by the appeals court, with the ruling stating that Maass never held enough authority at Democracy Partners to be considered a fiduciary.

O’Keefe called the ruling “the biggest victory of my life.” He said, “I've only lost one case at jury verdict four years ago. Well, today, that case has just been overturned by the DC Circuit Court of Appeals, Democracy Partners versus O'Keefe. This case has profound impact on the First Amendment and undercover journalism at large, the right of an undercover journalist to misrepresent themselves in order to bring you the truth.”

“Now this is a tremendous victory, not just for us, but for every journalist who takes on powerful people, and for your First Amendment rights.”

Democracy Partners v O'Keefe by Hannah Nightingale