We here at the Erik Wemple Blog have historically sided with the critics.
This week, a jury in a D.C. federal court will hear some variation of this debate, as the trial begins in the 2017 case Democracy Partners, LLC, et al. v. Project Veritas Action Fund. The suit stems from a video-sting operation carried out by Project Veritas at the D.C. offices of Democracy Partners, an umbrella group of progressive political consulting firms.
O’Keefe is expected to testify Thursday or Friday.
Launched amid the heated 2016 presidential campaign, Project Veritas’s operation gained steam when an employee named Daniel Sandini contacted Robert Creamer, a political operative who co-founded Democracy Partners and consulted for Hillary Clinton’s presidential campaign through the Democratic National Committee. The Project Veritas staffer used a false name (“Charles Roth”) and mentioned that he had a niece interested in working in progressive politics. At one point in the discussions, “Roth” said he would make a donation of $20,000 to the progressive group Americans United for Change — a pledge that Project Veritas delivered on. “The donation certainly greased the wheels,” wrote O’Keefe in his book “American Pravda.”
By late September 2016, that “niece” — actually a Project Veritas employee named Allison Maass who represented herself as “Angela Brandt” — had secured an internship with Democracy Partners.
Having successfully penetrated the consultants’ offices, Maass proceeded to make surreptitious recordings of political operatives as well as to extract documents of interest to Project Veritas.
Impact, and headlines, followed: Two consultants — Creamer and Robert Foval, a contractor for Democracy Partners — were caught on tape making ill-advised statements about their work, much of it unguarded political rodomontade. Both of them suffered the consequences after Project Veritas Action, an arm of Project Veritas, published a series titled “Rigging the Election.” Foval, who was recorded riffing about strategies to provoke violence at Republican rallies, lost his job with Americans United for Change and Creamer, who was far more guarded than Foval in the videos, stepped away from his work assisting the Clinton campaign.
In its original complaint, Democracy Partners alleged six counts of actionable conduct — breach of fiduciary duty by Maass, including the “duty of confidentiality and the duty of loyalty”; two counts of unlawful interception of oral communications; trespass; and fraudulent misrepresentation. U.S. District Judge Ellen S. Huvelle granted summary judgment for Project Veritas on the counts of trespass and breach of fiduciary duty, allowing the case to proceed to trial on the remaining counts.
Project Veritas’s defense is familiar to anyone who has listened to O’Keefe hold forth on the role of his organization in contemporary America. “This is a First Amendment case,” reads a Project Veritas filing. “Whether it is the New York Times, Hustler Magazine, Nellie Bly, or James O’Keefe, hard-hitting, provocative journalism requires First Amendment safeguards to ensure that speech flourishes.” To claim that mantle, Project Veritas has likened its work to historic examples of journalists going undercover to produce high impact investigations — including a CBS News undercover investigation of the gender-price gap in New York City dry cleaners and a “60 Minutes” investigation into the role of U.S. lawyers in money-laundering operations. However, it’s worth noting that neither of those pieces — cited favorably in a Project Veritas filing — involved false representations or a wheel-greasing donation to secure an internship.
Project Veritas’s filings have emphasized what this case is not — namely, a lawsuit alleging defamation stemming from the group’s videos. Such a claim, argues Project Veritas, would require the plaintiffs — consultants on the front lines of political battle — to vault the lofty evidentiary standards required for public figures. Per the famous New York Times v. Sullivan case, they would have to prove that Project Veritas acted with knowledge that their published material was false, or that they acted with reckless disregard for its truth or falsity. Such an undertaking is a greater legal heave than the route chosen by Democracy Partners.
“The Plaintiffs are public figures, and they are attempting to silence Project Veritas Action from speaking publicly and reporting on issues of significant public concern,” wrote the defendants in a 2017 filing. “The Plaintiffs attempt to do so, not by the proper route of a defamation claim under New York Times v. Sullivan, but by an end-run around the First Amendment through garden-variety commercial torts such as trespass, breach of fiduciary duty, civil conspiracy, and others.”
In a Tuesday filing, Project Veritas argued that the plaintiffs shouldn’t be allowed to attack the “truthfulness” of the group’s reporting on Creamer — again on the grounds that such a tack amounts to a backdoor defamation claim. Not so, counters counsel for Democracy Partners, which pledges to show at trial that the “video was selectively edited to falsely portray what Mr. Creamer actually said.” The group’s response also argues that Project Veritas went ahead with its video project even though it found “no other reliable evidence of … misconduct other than the statements of Scott Foval, which they never bothered actually to corroborate.”
Nor did Project Veritas ask Creamer for comment, says the filing. “No real journalist would proceed in that fashion.” But hold on: Are Democracy Partners’ complaints about selective editing and failure to seek comment relevant to the causes of action in the suit? Or are they an attempt to graft libel questions onto a non-libel case?
For context on this spat, recall that last year, Judge Paul Friedman — to whom the case was reassigned in September 2020 — ruled that for the narrow purposes of this trial, Democracy Partners could refer to Project Veritas as a “political spying operation,” and that Project Veritas could defend its operations as independent journalism.
That should set the stage for some spicy courtroom repartee. Opening arguments are slated for Wednesday morning, according to a scheduling order. The Erik Wemple Blog will be there.