Appeals court tosses $130,000 verdict against James O'Keefe in 2016 sting

A federal appeals court has overturned a $130,000 judgment against conservative journalist James O’Keefe, ruling that a jury’s damages award in a 2016 sting operation violated the First Amendment. The decision, issued by the U.S. Court of Appeals for the D.C. Circuit, dismissed the verdict in favor of Democratic consultant Robert Creamer and his affiliated organizations. The case centered on a controversial undercover video titled “Rigging the Election,” which O’Keefe’s organization, Project Veritas, released ahead of the 2016 presidential election. The video claimed that Creamer’s firm, Democracy Partners, was collaborating with Democratic operative Scott Foval to orchestrate violent disruptions at rallies for then-presidential candidate Donald Trump. The footage included material from other undercover Project Veritas reporters, but approximately two minutes featured footage obtained by Allison Maass, an intern who posed as a student using a false identity and fabricated resume to gain access to Democracy Partners in September 2016. Maass secretly recorded conversations during her internship, later providing the recordings to O’Keefe’s team. In 2022, a jury in Washington awarded $120,000 in damages under a fraudulent misrepresentation claim, while both sides agreed to an additional $10,000 in statutory damages related to wiretapping allegations. The jury determined that Maass, who had been hired as an intern, was a fiduciary of Democracy Partners and had breached that duty by recording confidential conversations. Creamer, married to Representative Jan Schakowsky (D-Ill.), argued that the infiltration led to the loss of contracts with labor groups such as the American Federation of State, County and Municipal Employees and Americans United for Change. However, the appeals court ruled that the trial judge allowed the jury to consider the broader impact of O’Keefe’s undercover reporting rather than focusing solely on the misconduct of Maass. Citing the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware, the panel emphasized that when protected speech is intertwined with unlawful actions, plaintiffs must demonstrate that the illegal behavior, not the speech, was the primary cause of their injuries. The court noted that testimony from AFSCME’s government affairs director suggested the controversy surrounding the video, not the internship itself, was responsible for the cancellation of contracts. The appeals court also rejected the wiretapping claim, determining that Maass lacked sufficient authority at Democracy Partners to qualify as a fiduciary under the law. While Judge Robert Wilkins, an Obama appointee, partially dissented, he acknowledged that the damages calculation was flawed. He expressed concern that the ruling might undermine standard confidentiality expectations between interns and employers, although he concurred that the jury’s damages award could not stand as originally calculated. O’Keefe, who stepped down from Project Veritas in 2023 to launch a new undercover-video platform, stated that the ruling would strengthen his position in ongoing litigation involving individuals affected by his investigative work. An attorney representing Creamer and Democracy Partners, Joseph Sandler, told the Washington Examiner that his clients were “disappointed in the ruling” and are considering further legal action. The full opinion of the court is accessible via the D.C. Circuit’s official website.