Ken Blackwell and Ken Klukowski: ACORN Threatens to Open Pandora’s Box
This column originally appeared on the Politico on September 18, 2009.
In the wake of Fox News reporting on the unfolding ACORN scandal, ACORN is now threatening to sue the network. Now that Fox is actually breaking news on this story by showing new videos, ACORN might just do it. Fox News should pray that ACORN does sue, because it would blow the doors off this story, possibly destroying ACORN and erupting into a political scandal in Washington.
As bizarre as it seems, ACORN is threatening to sue Fox for reporting on these incriminating videotapes. Glenn Beck broke news with a new tape on Monday, and Sean Hannity might be doing the same shortly. Evidently, ACORN is accusing Fox of coordinating with the filmmakers, arguing that somehow these reports make Fox legally liable.
ACORN’s unavoidable problem, however, is that suing Fox News would give Fox — or any other media organization — the ultimate Christmas present: a legally enforceable way to compel ACORN to give up all its secrets.
The process by which a party to a lawsuit can force the opposing party to disclose information is called discovery, which can take the form of depositions, written questions, or demands for the production of documents. Under federal rules, a defendant can get court orders for discovery for any information relevant to its defense, except for privileged information such as attorney-client discussions.
If ACORN sues, it would have to sue alleging some variation of defamation or fraud. The problem is that for either allegation, truth is an absolute defense. Nothing could be more relevant to Fox establishing its defense of truth in the lawsuit than having access to ACORN’s office memos, emails, phone records, and bank statements. All of these would have a reasonable chance of providing evidence as to whether ACORN workers had knowledge of any of the topics seen on the videotapes.
In short, it would blow the doors off ACORN’s vault of secrets. Fox would learn which organizations collaborate with ACORN, how they spend taxpayer money and what ACORN’s leaders say to each other behind closed doors. It would be a treasure trove for a media organization.
It could also become a massive political scandal in Washington. Two of the individuals on ACORN’s eight-member advisory board include John Podesta (the chairman of President Obama’s transition team after the election) and Andrew Stern, the president of SEIU who is intimately involved with the White House on numerous issues, including the health care plan. Some Democratic elected and appointed officials also have close ties with ACORN.
While it’s certainly possible that none of these public officials have any knowledge of criminal activities by ACORN workers, it would be embarrassing to have their names associated with the investigation. Does ACORN really want to open Pandora’s box by suing a media company when these things would be at stake?
It’s not surprising that ACORN is considering lawsuits out of desperation, including suits against the intrepid reporters who filmed these tapes, and against Big Government, the new political website by online media guru Andrew Breitbart that first broke this story and has been the leading source for continuing developments.
(Not that any of them should be overly concerned, either. They would have no trouble collecting vast sums for a legal defense team and would have a good chance at winning on the merits in any such lawsuit. And again, their discovery efforts would give Big Government reams of material for new stories. In short, they would become heroes to the national conservative movement for helping bring down ACORN.)
So ACORN’s legal actions would be its undoing. The resulting exposure would explode into a national story that even sympathetic media outlets could no longer ignore, bedeviling ACORN’s allies at SEIU and even dragging top advisers to President Barack Obama into humiliating legal proceedings.
And once top ACORN officials were put on the witness stand under oath, who knows what the American taxpayer would learn?
It would be one huge, ongoing scoop for Fox. And their ratings would soar, as ACORN sinks beneath the waves.