Some constitutional victories arrive with trumpets. Others arrive quietly in a case the press has decided not to love, for a journalist many would rather not defend. Democracy Partners v. O’Keefe is one of the latter.
James O’Keefe is controversial. That’s no secret. In 2022, a Washington jury found against O’Keefe and Allison Maass, and the district court entered $130,000 in fraud and wiretapping damages arising from a 2016 investigation of Democratic political consultants. The Washington Post said the verdict “upends” Project Veritas’s journalism defense; Reuters presented it as the final rebuke of deceptive newsgathering. Recent headlines have described the appellate reversal as a court just “tossing” a $130,000 judgment. That is true. But it fails to capture the real achievement. So perhaps it is time to set the record, and a few headlines, straight.
For decades, an important First Amendment protection had developed a loophole. The Constitution sharply limits when public figures may recover damages for injury caused by what journalists publish. But some courts allowed plaintiffs to escape those limits simply by changing the name of the harm.
A plaintiff could try to evade the First Amendment rules governing reputational torts by calling the resulting damages “economic” or “non-reputational” – lost work, lost contracts, diminished prospects. But a constitutional protection that disappears when a lawyer changes the label on the damages is no protection at all. It is an invitation to plead around New York Times v. Sullivan and, for public figures, its requirements of falsity and actual malice.
The D.C. Circuit has now closed that door. The question, it held, is the legal injury – not the lawyer’s description of the loss. In a few pages, it cleared away 25 years of doctrinal fog and restored a simple rule: Courts may not punish publication through a defamation claim wearing another tort’s clothing.
The court went further. Drawing on NAACP v. Claiborne Hardware, it held that when protected speech is mixed with allegedly unlawful conduct, a plaintiff cannot recover merely by showing that the conduct was a “substantial factor” in the loss. The burden is heavier. The unprotected conduct must be the dominant force behind the injury. The trial evidence showed that the published story and the scandal it generated – not the infiltration itself – were the principal cause of the lost contracts. The verdict therefore punished publication. And that is something we do not do in a free society.
The result also does one better than the famous Food Lion case. There, the Fourth Circuit reversed ABC’s fraud judgment but left $1 nominal judgments for breach of loyalty and trespass. Here, Judge Wilkins, in dissent, would have done the same. The majority, comprising judges appointed by presidents of both parties, refused. Because actual damages caused by the misrepresentation were an element of D.C. fraud, and the Constitution allowed none on this record, the fraud claim failed outright. The court likewise erased the wiretapping judgment, rejecting the theory that the undercover reporter’s temporary, unpaid position supplied the kind of legal duty necessary to sustain it.
This was a sleeper case, but it was never a small one. The $130,000 verdict most reporters are talking about was only the beginning. The wiretapping claim exposed O’Keefe to potentially millions of dollars in attorneys’ fees. More importantly, the case presented constitutional questions capable of shaping how journalists may be sued throughout the nation’s capital.
At the appellate stage, our firm, Barr & Klein PLLC, carried that constitutional fight to a decision that fundamentally reshaped First Amendment law in the D.C. Circuit. We did so from an unforgiving posture – after an adverse jury verdict and a trial record that had not fully crystallized the constitutional questions the case ultimately turned on. That is the work our firm was built to do: Find the First Amendment question hidden inside an ordinary-looking tort suit, define it, sharpen it, and win it.
There will be other plaintiffs who rename reputational punishment. There will be other courts asked to treat a controversial journalist as something less than a journalist. There will be other moments when institutions that celebrate press freedom fall silent because they dislike the speaker before them.
We will not be silent. Barr & Klein will continue representing O’Keefe and other journalists at the cutting edge of the First Amendment. We intend to keep bringing – and winning – those cases and to leave the First Amendment stronger than we found it: not for one man, one faction, or one newsroom, but for all of them.
A freedom that protects only the admired is not freedom. It is favor. And the First Amendment was not written to distribute favors.
