ACORN, the group that helped launch Barack Obama’s career as a community organizer was recently caught in undercover stings advising about how to set up a brothel that would bring “minor girls into the country for purposes of prostitution,” reports the Washington Post. (ACORN receives taxpayer money despite a long history of financial fraud and vote fraud).
Now, Patricia Coats Jessamy, the Baltimore City State’s Attorney, is trying to silence those who have broadcast the video footage, relying on a Maryland law that violates the First Amendment. She is not interested in prosecuting the crimes recorded on the video. Instead, Jessamy, an ardent Obama supporter, wants to prosecute the makers of the undercover video — and those citizens, bloggers, and journalists who broadcast it or “use” or “disclose its content.”
In her public statement, she complains that the video may “possibly have been obtained in violation of Maryland Law . . . Article §10-402, which requires two party consent. If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years.” (Similar laws in Massachusetts have been used to shield kidnappers calling in ransom demands, and police abusing motorists!).
It is obvious to me as an attorney that Patricia Jessamy is threatening a selective prosecution. The First Amendment generally overrides state privacy laws insofar as they would prevent disclosure of public corruption and discussion of matters of public concern, as the Supreme Court has made clear in cases like Florida Star v. B.J.F. (1989), Bartnicki v. Vopper (2001), and Time v. Hill (1969).
But as the Examiner notes, “Maryland is a one-party state,” where Democrats are in charge of all three branches of government. And it is conceivable that the Maryland courts will let Jessamy use an obscure technicality to harass the makers of the video for years, despite the First Amendment.
There is a legal doctrine called “Younger abstention,” under which federal judges, based on “federalism,” won’t issue injunctions against state-court prosecutions, even if they violate the First Amendment or other constitutional provisions, unless the prosecution is not only unconstitutional, but “patently” and “flagrantly” unconstitutional. That is an extraordinarily high standard to meet, which insulates many unconstitutional state prosecutions from being challenged in federal court.
If Jessamy prosecutes YouTube, which is hosting the video, or the bloggers and journalists who are broadcasting it, this standard will be met, and a federal judge will likely issue an injunction against her wrongdoing. (See In re Providence Journal Co., 820 F.2d 1342 (1st Cir. 1987) (issuing injunction); Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (disseminating audiotape that was banned by state “privacy” law was protected by First Amendment)).
But if she just prosecutes the makers of the undercover video, like filmmaker James O’Keefe, it is conceivable that federal judges will refuse to intervene, saying that her violation of the First Amendment, while proven, is insufficiently “patent” and “flagrant” to justify an injunction against her (although I would argue to the contrary).
If that happens, she may be able to harass the makers of the video for years, until state prosecutions or convictions are overturned by the U.S. Supreme Court. Even after their convictions or prosecutions are overturned on First Amendment grounds, she will be immune from any personal consequences, since prosecutors have “absolute civil immunity” against damages for constitutional violations they commit in the course of their jobs.
“Younger abstention” doesn’t apply until the prosecutor actually brings charges. So the makers of the video could seek a federal court injunction against their impending prosecution, right now, if they had attorneys. But the makers of the video appear to be conservative activists, not liberals, so the ACLU likely won’t jump at the chance to represent them (although it may eventually file an amicus brief on their behalf if they end up being prosecuted).