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Case number 25-1780, Democracy Partners LLC et al vs. James O'Keefe and Allison Maas, Appellants.

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Mr. Bomer for the Appellants, Mr. Sandler for the Appellants.

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All right, Mr. Barr, good morning.

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May it please the court.

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Good morning, Your Honours.

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My name is Benjamin Barr and I represent the Appellants, James O'Keefe and Allison Maas.

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I'd like to reserve three minutes for rebuttal.

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No nondisclosure agreement, no salary, no authority, just an unpaid intern clipping newspaper articles, saving videos, taking messages.

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This is who Alison Moss was inside Democracy Partners, the lowest rung on the ladder.

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Yet because she recorded what she saw and later shared it with the public, the verdict below reimagines her as three things at once, a fraudster, a fiduciary, even a potential criminal.

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This inversion of reality should give pause to this court.

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If accepted, the appellee's theory would allow New York Times v. Sullivan to be nullified by creative pleading.

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Fiduciary law is meant to protect, is meant to restrain those with power, not to conscript the powerless into silence.

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Fraud is meant to remedy harmful deceit.

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not to punish truthful exposure, and the First Amendment does not tolerate a regime in which the least powerful person in the room is transformed into the guardian of Washington's political secrets.

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This court should restore common sense and reaffirm the constitutional principle that journalists may not be punished for truthful reporting simply because the truth was uncomfortable.

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Now in doing so, I remind this court of its duty under Bose Corp to be a constitutional gatekeeper and to apply clear and convincing evidentiary standard to the record below.

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That means the findings should be supported by a high level of probability without hesitation.

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And that's in looking to reaffirm the role of New York Times v. Sullivan in requiring that defamation claims not be repackaged into other torts.

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We start with the first claim, which is fraudulent misrepresentation.

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My understanding is that there was no objection below to the jury instructions on fraudulent misrepresentation.

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That's correct, Your Honor.

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And those jury instructions made clear that the verdict wasn't based on publication, it was based on infiltration, right?

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Yes, Your Honor.

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So what's the First Amendment problem?

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First amendment problem is this should not have gone to a jury at all.

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As a matter of law, it should have already been decided in favor of the appellants.

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And this was raised both at motion dismissed and re-judgment, rule 50A, rule 50B.

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So you're saying infiltration can never be the basis of a fraudulent misrepresentation claim?

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No.

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No, I'm not, Your Honor.

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What we're saying is that the harm that stems from misrepresentation has to arrive directly out of that infiltration or misrepresentation.

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But where there are publication issues in front, where there's news gathering involved, if the alleged harm stems from the publication, then we have a profound First Amendment issue here.

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And the timeline in the joint appendix that was... Again, you didn't object to the jury instructions and the jury instructions said that you're the base and he damages one infiltration, not publication, right?

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Correct.

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There was no objection to the jury instructions.

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But the rule 50A and 50B did preserve that argument.

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But the jury instructions said...

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The damages are to be based on infiltration.

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Yes.

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Publication.

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Yes.

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So again, if that's the case, where's the First Amendment problem?

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The First Amendment problem is that it should never have gotten to the jury.

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And I think if we just do a brief walk through the timeline, it shows that this is related to the publication.

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AFSCME, the association... People have said that merely because in a situation like that, there may be some relation to a publication is not dispositive.

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They've made that very clear.

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Yes.

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All right, so I mean, that's an uninteresting starting point when you say related to a publication.

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So what?

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That's a fact that the jury understands and the instructions accounted for.

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And the Supreme Court has said, don't worry about it.

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That's not an issue as long as you find what is required here.

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And the district court instructed quite precisely and quite clearly over no objection.

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The thing that's missing here is you're missing completely the standard of review.

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The standard is not favorable to you and the Bose standard on malice is not in play here.

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I'm reading the case law.

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I can't take it where you're trying to take it.

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It's just not in play.

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I would respectfully disagree.

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Of course you would, but I want you to at least understand, I don't see how you get in there.

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Yes.

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Well, I think if we look to what's occurred in Sister Circuits and the Fourth Circuit and Food Lion, Seventh Circuit in Desnick, Ninth Circuit in Newman, that was cited in our briefings, that we do get there.

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And under Bo's court, it is the duty of this court to look not just at the jury's finding, but the record

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as a whole to be able to examine this for First Amendment violations.

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And if I may, I'd just like to walk... There are some cases in which the court says we're always in play because they've categorically put those cases in play the Bose type situation.

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For the most part, that is not true.

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But we have acknowledged that in situations that appear to raise

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A particularly difficult kind of issue, we should at least be careful to make sure that nothing problematic has occurred here.

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That doesn't get you where you want to be.

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You want to just sweep this under the bow's rule.

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That's not correct.

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It's not the novel review.

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Well, it's not sweeping.

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It's that these arguments about that the jury should not have received this, should not have acted on this, were preserved in the 50A, 50B summary judgment arguments.

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And if I may, I'd like to walk through the timeline to be able to explain why we think that's compelling.

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AFSCME, who's the major funder of the source of damages here to Strategic Consulting, to Americans United for Change, they were not contacted about this investigation until October 17th, the very date of the publication.

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It doesn't matter.

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I mean, that's what the Supreme Court case said.

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Supreme Court case are you referring to your?

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Go keep going.

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I'll give you what I want.

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Sure.

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Shortly after Veritas publishes the video, that is when AFSCME terminates the contracts that are in question with strategic consulting, Americans United for Change.

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Scott Frey, who's the head of AFSCME, testified that his main concern was the video created the census scandal.

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He testified it was an unfortunate distraction because of the optics of the presidential election

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Cohen.

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Cohen v. Collins, yes.

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A generally applicable law doesn't violate First Amendment standards for journalists, and we're not— The fact that the time sequence doesn't fit the way you're suggesting it doesn't make their case informed.

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I'm sorry.

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You're saying because he got notice.

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The publication came in your view after the fact after some fact.

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That means conclusively in your view that's the end of it.

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That's not what Cohen saying that is what food line does not what Cohen saying Cohen saying just the opposite.

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Cohen says that we look to laws of general applicability in that those don't offend the First Amendment with some special journalistic immunity.

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And we're not arguing in favor of any sort of journalistic immunity.

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We're arguing about proximate cause here, and that where there's an intervening publication that causes the damage at issue, that you have to meet New York Times-D.

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Sullivan standard.

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Otherwise, you're maneuvering around, just as Hussler said, and that can't be done, whether a jury's blessed that or not as a matter of law.

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That's where we're at.

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And the fact that this is a publication damage tracks, with clock-like precision, the exact timeline here.

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And it's similar to what happened in Foodline.

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It's not like what happened in Newman in the Ninth Circuit.

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That was David DeLieden with the Center for Medical Progress, where a pro-life investigative journalist went in.

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And there's evidence produced that

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And right at the time they discovered the infiltration, they took measures to upgrade their security system.

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They brought in tech consultants.

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They spent money.

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But what happened here was that, and we tried to point this out in the reply brief, that there is the standard sort of born out of Food Lion reading Hustler, is that in a world where there's no publication, if there are no damages,

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then there's nothing that's compensable here.

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And to do otherwise would be to have an affront to the First Amendment.

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I don't understand what you said at all.

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You're telling me that if there's an infiltration and the organization finds out about it, but there's never any publication, then there just wouldn't be any damages?

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There has to be an immediate concrete harm in terms of looking at proximate cause at that time.

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So in Newman, there were security upgrades, tech upgrades that were put into the record shown as evidence that supported that harm.

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We could imagine corporate espionage where Pepsi sends an individual in and steals a trade secret from Coca-Cola, and there's immediate harm at that time.

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But where the record shows that there's been a publication and that it's embarrassment in a result of that publication, as we had in Food Lion, where two undercover reporters there actually worked in an organization, Food Lion showed that the meatpacking had problems and the like.

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When we see that the timing relates to publication, not the actual infiltration, then we have a problem.

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Here there was evidence from Ask Me that

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Part of the reason that they dropped democracy partners was the infiltration.

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there's passing reference to that.

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But under Bose, the burden here is to be able to show without hesitation and with convincing clarity that the actual damages stemmed from that infiltration.

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And when we compare this to Food Lion, Desnick, Newman... And the jury was instructed that the damages have to be on infiltration, and the way that they were instructed was not something that

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your client objected to.

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They did not.

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At the same time, the jury decided this incorrectly.

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We don't believe it's a matter of law.

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A very high standard for you.

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That's what I started out by saying.

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It's a very high standard, but you're arguing it as if

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You just made us a statement that it has to be clear and what are you going to call the jury and say, were you really clear?

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Of course not.

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That's not the way we review this evidence.

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The question is whether the jury got

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was dealing with something that should have been in their hands, whether they got instructions that were permissible, and they were not objective to here, and they otherwise looked permissible, and whether there's something at a very high standard that suggests the jury got it completely wrong.

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I don't know where they got it completely wrong.

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When I look at Cohen and some of this other material, it was within the range that they could have reached, and that's it.

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And there are lots of cases where folks come away saying, you know, but I don't really like the jury result, and I have a good argument, maybe,

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But if the jury did what it was supposed to do, and they were properly instructed, you lose.

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And here the jury didn't do what they were supposed to do.

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Cohen stands in tension with cases like New York Times' V. Sullivan and Hustler.

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Hustler reminds this court that- Cohen takes care of your so-called Hustler argument, and you have no answer for that.

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Well, the answer is twofold.

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One, that it shouldn't have gone to the jury as a matter of law.

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I understand you say that.

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Yeah.

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And this court, as a constitutional gatekeeper, has its own duty to review the whole record below and to see that the damages were tied to publication, not to the infiltration.

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Second, that we meet the highest... It's part of the instruction.

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Second, that we meet the highest standard here.

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That when we look at this timeline that I just walked through, this lines up perfectly with Food Lion.

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It lines up perfectly with Desnick.

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In other sister circuits, finding that where the evidence points towards a finding that the harm comes out of embarrassment from this publication, then we have a

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Hustler problem, food line problem, and the like.

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I see that my time is up.

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I don't know if you want me to address the fiduciary issue or wiretapping claims or save that for rebuttal.

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Well, it seemed that anything you want to say about that needs to be able to be responded to by the other side.

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OK, I'll keep it short.

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Your honor, yes.

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We turn to fiduciary duty and the finding of a fiduciary duty owed by Alison Moss to democracy partners.

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That, of course, is the predicate for the wiretapping claims here.

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Of course, in DC, it's an open-ended test.

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That doesn't mean a boundless test.

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What is the nature of the relationship, the promises made, the type of services or advice given, legitimate expectations of the parties.

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But the immediate problems here are that fiduciary obligations arise only in rare relationships of heightened trust, independence, where one party reposes a special confidence in the other, and the other accepts that sort of a meeting of the minds.

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Mouse was a temporary, unpaid intern, not an officer, not an advisor.

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She wasn't entrusted with managing any sort of affair.

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She had no contract, no confidentiality agreement, no decision-making power within the organization.

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Fact issue, right?

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Fact issue, right?

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Well, it's also, is it a fact issue?

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Yes, there is a fact issue.

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And there were instructions given to the jury and they were based on established law.

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And so the jury was instructed, here's the evidence, here's the law, here's what you have to decide.

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The jury decided it.

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Now, where was the jury wrong?

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Because you don't like the result.

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That's not the way we operate.

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Because the bar, the legal bar for fiduciary duty has been deliberately set very high.

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And where the constitutional issues, the First Amendment issues here are implicated, again, under Bose, this court has its own special duty to reserve that.

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We provided a survey of nationwide law and fiduciary status simply because fiduciary

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Case law is very sparse.

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Even mid-level managers usually don't have a fiduciary duty.

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Even exposing confidential information to an individual usually doesn't trigger any sort of fiduciary duty.

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That is correct, Your Honor.

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It's not the mere fact of anything in particular in the case.

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It depends on the circumstances as a whole.

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That's what the law is.

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And the things that the jury has to take into account, which as far as we have reasons to know they did, because they were instructed properly.

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And as a matter of law, there has to be clarity given to undercover journalists to be able to know in advance when they're able to record and when they are not.

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And when we introduce multifactorial tests, as we have here, cases like Citizens United before the Supreme Court warned against the inherent vagueness in this.

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inhibit a chill with journalists in terms of being able to figure out when they're able to do this and when they are not.

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But there is decided case law both in DC and throughout the country that this is a very high standard to me.

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It's very rarely met.

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CEOs, accountants, financial fund managers, not low-level interns.

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Now, the evidence below, there's

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There's an intern who works for a representative or a senator.

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Do they have a fiduciary relationship with the representative or senator?

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Well, we look at the tests that's available in DC, nature of the relationship that would tend to heighten the level of duty that we would find there.

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We'd have to examine what promises were made between the parties.

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There's a person in the situation raised by my colleague.

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With that person assume that it's perfectly permissible in that kind of a job situation, whatever its title, I can record everything that goes on here and share it with whomever I want to to my advantage.

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You think they wouldn't understand that's probably a problem of a serious sort?

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I think they would probably understand that, Your Honor.

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Right.

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Well, that's what we're looking at here.

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That's what the jury had to decide.

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The record below has three mentions of anything that can be considered close to this.

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No one at Democracy Partners mentioned an inherent role of confidentiality.

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There's nothing in the record below for that.

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These are the people to whom we work, with whom we work.

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and the kind of work we do, and you walk out of the room and say, good, I'm going to record everything I hear here, and I'll share it as I please.

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And then I can get away with it, because I'll say it's First Amendment protected.

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Oh, come on.

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Well, yes.

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No, Your Honor, absolutely yes.

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But that's what investigative journalists do, and that's why major reforms... They say they do, but sometimes they may take a chance.

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That's what this case is raising.

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It has to be within the law.

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It has to.

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But there may be a risk.

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We're not arguing any sort of special journalistic immunity.

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Right, because the Supreme Court has said you can't win on that.

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No, we can't.

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Absolutely not.

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But what we can win on is the fact that this is, again, related to publication damages and that the finding of a fiduciary standard here is absurd.

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Again, the record below, the DNC staffer, Jenna Price, she said that there was a bus tour

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That was kind of a secret.

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There was a teleconference call that discussed a secret war room used by Hillary Clinton.

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And Aaron Black said, no one is supposed to know about him.

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Aaron Black also said that there would be an NDA or something like that, maybe, given to Alison Moss, to which she said, OK, the terms of which were never known and was never produced.

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That doesn't suggest a situation in which confidentiality is guarded very well.

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It suggests a very porous and open... You're in a bad situation on the facts.

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I'm just thinking in terms of what the jury might be thinking.

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She recorded everything.

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with the intention to use it to my advantage as I see fit.

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That's what we're talking about here factually.

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Everything.

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It wasn't, I'm gonna pick and choose and so there could be a fight over a bus trip.

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That's not what's going on.

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I'm gonna tape everything and then I'll use it to my advantage.

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And the jury said, you obviously had to understand there was some fiduciary responsibility that you breached.

[00:19:52] Speaker 01:
Well, her advantage was to inform the American public about a newsworthy event, about bracketing events, putting individuals into campaign rallies to foment violence.

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This was viewed by 6.7 million viewers.

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It was very much a popular piece by Project Veritas.

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And you and I both know that's not dispositive.

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That doesn't answer the question.

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It speaks to the newsworthiness of the action.

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That doesn't answer the question.

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And that's what Cohen and other cases have made very clear.

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The news doesn't get a pass if you're otherwise in trouble with other pieces of the law that we value highly.

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So the question here, is there a breach of fiduciary relationship?

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Well, you knew that in this context, certain things were not meant to be shared or taken from here.

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And that's not unlawful.

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and you had reason to know that was the case and you breached that.

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There is no misrepresentation of who you are and what you're about.

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There is no evidence in the record, Your Honor, that she was told that this was to be kept confidential.

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That's simply not there.

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Let me ask you a question that, unless I'm misreading the record, whether this Ms.

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Maz was a fiduciary or not, and I don't think she was.

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If she was, then that's the end of.

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muckraking.

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But this video came from the people who talked to this guy named Fovall.

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They didn't use anything.

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Am I correct?

[00:21:29] Speaker 01:
That is correct, Your Honor.

[00:21:30] Speaker 01:
There's nothing from Ms.

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Moss included in this first video that's the subject of this litigation.

[00:21:39] Speaker 05:
Well, that seems to me to be pretty important.

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The injury was not caused by her undercover irrelevant reporting or recording and videoing and so forth.

[00:21:57] Speaker 01:
I think that's true, Your Honor.

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It's also noteworthy that it's democracy partners bringing this suit.

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She had no knowledge about the inner workings of ASME, a strategic consulting group of Americans United for Change.

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Those were downstream third party contracts.

[00:22:14] Speaker 05:
And the video here in question, as you noted, there is no- If you assume, which I do, if you conclude that it's the video that caused the harm, not the

[00:22:25] Speaker 05:
so-called infiltration.

[00:22:31] Speaker 05:
then what she did or didn't do is irrelevant.

[00:22:34] Speaker 05:
It's what this fellow, who was it?

[00:22:37] Speaker 05:
What was the guy who also had an alias, Hartsock or Heartstock?

[00:22:42] Speaker 01:
Oh, Christian Hartsock, yes.

[00:22:44] Speaker 01:
He was the actor in the main video who went out to Wisconsin to record Scott Folwell talking about hiring the homeless to do awful things and foment violence.

[00:22:55] Speaker 01:
I take your point, Your Honor.

[00:22:56] Speaker 01:
Yes, it's absolutely important.

[00:22:58] Speaker 01:
And to your point,

[00:23:00] Speaker 01:
This does, this determination by this court decides whether undercover reporting can exist in the nation's capital moving forward, and we'd ask that you reverse and remand accordingly.

[00:23:13] Speaker 05:
I do have one question.

[00:23:14] Speaker 05:
Oh, yes, Your Honor.

[00:23:16] Speaker 05:
You agree that Creamer is a limited purpose public figure.

[00:23:23] Speaker 01:
Yes, Mr. Kramer's well-known, involved in political circles, is married to a former congressman from Chicago.

[00:23:32] Speaker 01:
I think that adequately meets New York Times' C. Sullivan public figure status test.

[00:23:39] Speaker 01:
Thank you.

[00:23:39] Speaker 05:
Thank you.

[00:23:40] Speaker 05:
We'll give you some time to reply.

[00:23:42] Speaker 05:
Mr. Stangelins?

[00:23:50] Speaker 00:
Please.

[00:23:51] Speaker 04:
Thank you, Judge Henderson, and may it please the court.

[00:23:55] Speaker 04:
Defendants claimed in their reply brief, and counsel alluded to it, that if the verdict in this case is allowed to stand, it would, quote, set a dangerous precedent, effectively ending undercover reporting and investigative journalism.

[00:24:09] Speaker 05:
Mr. Sandler, I'm very hard of hearing.

[00:24:11] Speaker 05:
Could you either get closer to the microphone or get it closer to you?

[00:24:20] Speaker 04:
Can you hear me now?

[00:24:21] Speaker 04:
That's better.

[00:24:22] Speaker 04:
Thank you.

[00:24:24] Speaker 04:
Defendants claim in their reply briefs that if the verdict in this case is allowed to stand, it would, quote, set a dangerous precedent, effectively ending undercover reporting and investigative journalism, end quotes.

[00:24:37] Speaker 04:
And leaving aside that this verdict has stood for more than three years with no noticeable effect on investigative reporting or journalism,

[00:24:44] Speaker 04:
That assertion is simply not true.

[00:24:47] Speaker 04:
And it's not true because, with respect to the fraudulent misrepresentation count, the district court, two different judges who presided over this case, indeed kept the First Amendment constraints, the hustler doctrine, top of mind, such that, in the words of the district court itself, that court quotes, only permitted plaintiffs to proceed to trial

[00:25:09] Speaker 04:
with claims predicated on harms caused by defendants' non-expressive conduct.

[00:25:15] Speaker 04:
In particular, the jury was carefully instructed to that effect, as the counsel's exchange with Judge Wilkins noted, and defendants do not challenge those instructions in this appeal.

[00:25:29] Speaker 04:
The non-expressive conduct

[00:25:32] Speaker 04:
that was found to be a proximate cause of the damages sustained by Mr. Kramer and his company was the infiltration by Ms.

[00:25:43] Speaker 04:
Moss of the offices of democracy partners.

[00:25:46] Speaker 04:
And that included not only access to the private offices in that company, but also inside the headquarters building of the Democratic National Committee and of a major labor union.

[00:25:57] Speaker 04:
The access was, evidence showed that the access was all made possible by an elaborate web of falsehoods and misrepresentations, and that in the course of that infiltration, Ms.

[00:26:07] Speaker 04:
Moss videoed literally everything she saw and heard all day long without regard to whether the person she was taping was the subject of any journalistic interest, just taping everything to see if anything interesting turned up, including people she didn't even know who they were when she started the day.

[00:26:24] Speaker 05:
And nothing did.

[00:26:25] Speaker 05:
Nothing that she recorded or taped or looked at or whatever was the subject of a publication.

[00:26:36] Speaker 04:
That is, yes, that is true.

[00:26:38] Speaker 04:
That is true.

[00:26:39] Speaker 04:
And

[00:26:42] Speaker 04:
That's right, the actual contents of the video were virtually entirely conversations with Mr. Fovall recorded in a bar with Mr. Kramer in a hotel lobby and in a restaurant.

[00:26:56] Speaker 04:
We didn't challenge any of that.

[00:26:58] Speaker 04:
because it didn't, that wasn't, had we challenged that, say that was embarrassing and you selectively edited it, then we would have had to meet the hustler standard and show and try to, you know, pleaded it and tried it as a defamation case, but that wasn't the case here.

[00:27:16] Speaker 04:
The jury found that approximate cause was the infiltration itself and

[00:27:24] Speaker 04:
If the issue is whether a reasonable jury could have found, with all entrances resolved and claims favored, that is a substantial factor in the decision of AFSCME to cancel its contract with Mr. Kramer's company's student consultant.

[00:27:40] Speaker 05:
What do you do with Scott Frey's testimony, who was the director of government affairs, and he testified that he was separating his

[00:27:54] Speaker 05:
outfits from the story unfolding around the rigging of the election video.

[00:27:59] Speaker 05:
His main concern was with the optics of the video and the time that it came out.

[00:28:06] Speaker 05:
Something about intrusion or infiltration.

[00:28:10] Speaker 05:
Right, but he also said they didn't properly vet her.

[00:28:16] Speaker 05:
But Claiborne says if there's a First Amendment

[00:28:23] Speaker 05:
cause that is the dominant direct cause, that's it.

[00:28:28] Speaker 05:
If there are other things floating around, that's what you look at.

[00:28:32] Speaker 05:
Claiborne says that and that to me answers the question.

[00:28:37] Speaker 05:
I do have a question.

[00:28:39] Speaker 05:
Do you also agree that Creamer is a public figure, limited purpose public figure?

[00:28:44] Speaker ?:
Yes.

[00:28:45] Speaker 04:
agreed.

[00:28:46] Speaker 04:
But again, the jury was instructed and the issue was whether it was a proximate cause, not the only cause, or the principal cause of the damages.

[00:28:59] Speaker 04:
And Mr. Fray testified when I asked him, did you have a concern that Mr. Cramer created the opportunity for this video by allowing the operation to have occurred?

[00:29:09] Speaker 04:
We did have that concern.

[00:29:11] Speaker 04:
As you know, whether or not there was appropriate vetting of the staff, whether or not they had been thorough in their background review.

[00:29:17] Speaker 04:
Was the infiltration of democracy partners by Project Veritas operative a factor in your decision to terminate the relationship with Mr. Kramer?

[00:29:26] Speaker 04:
Yes.

[00:29:27] Speaker 04:
The fact that the... Do you think if the video had not come out,

[00:29:35] Speaker 05:
and that this Miss Ma's just had all this collected stuff and she either kept it or gave it to O'Keefe that this organization that Scott Fry heads up would even know about it would have any reason

[00:29:56] Speaker 05:
to cancel the contract.

[00:29:57] Speaker 04:
It would be speculative whether he would, whether Mr. Kramer would have mentioned the, well actually if the video had not come out, they wouldn't even know that the whole thing was a whole internship was a fake.

[00:30:14] Speaker 04:
But the mere fact that

[00:30:17] Speaker 04:
apps being learned about the infiltration from the video doesn't mean that that was expressive conduct that causes the damages.

[00:30:27] Speaker 04:
Just as in the Planned Parenthood versus Lumenkase in the Ninth Circuit, everyone learned of the infiltration from the video, but the damages as the Ninth Circuit found were caused by the infiltration itself, the cost of security measures.

[00:30:44] Speaker 04:
It's like saying, this is not a but for test under hustling.

[00:30:50] Speaker 04:
It's whether the damages flow from the contents of the publication made you look bad.

[00:30:55] Speaker 04:
It's a defamation case.

[00:30:57] Speaker 04:
It can't be the case that merely learning from it makes it expressive conduct.

[00:31:03] Speaker 04:
It's like saying if somebody broke into my house and recorded themselves and posted it on the internet, I couldn't go after them because I only learned it was them from the video, but I'm actually

[00:31:14] Speaker 04:
trying to recover damages for the break in itself.

[00:31:19] Speaker 03:
Turning to... Let me ask you one thing.

[00:31:22] Speaker 03:
If you were to lose on the fiduciary relationship question, are you still in play?

[00:31:29] Speaker 03:
And if so, on what terms?

[00:31:31] Speaker 03:
Is it only fiduciary duty?

[00:31:35] Speaker 03:
Mm-hmm.

[00:31:35] Speaker 03:
I'm sorry, fiduciary duty.

[00:31:37] Speaker 04:
Yes.

[00:31:37] Speaker 04:
Well, on that, defendants basically argued in effect for a bright line rule that an unpaid part-time intern.

[00:31:45] Speaker 03:
No, no, just, I mean, jump to the conclusion for me, for me, please.

[00:31:49] Speaker 03:
If you lose, if the court, if we were to say your arguments on there being a fiduciary relationship are not supported by law, they're wrong, we reverse.

[00:32:00] Speaker 03:
Are you still in play in the case's whole and in what terms?

[00:32:03] Speaker 04:
Yes, well, if the wire.

[00:32:06] Speaker 04:
Well, there were two separate counts.

[00:32:07] Speaker 04:
Yes, the wiretapping count depends on the existence of a fiduciary duty and required us to prove that there was a fiduciary duty and that she made the secret recordings for the purpose of reaching that duty.

[00:32:20] Speaker 04:
So if you were to find there was no duty, we would that count would be a verdict on that.

[00:32:25] Speaker 04:
And you would still be in play on fraudulent misrepresentation.

[00:32:31] Speaker 04:
which was a separate count based on the misrepresentations, again, causing the damage by using the infiltration.

[00:32:40] Speaker 04:
The bright line rule I just want to point out is not the law of D.C.

[00:32:47] Speaker 04:
and it doesn't make sense.

[00:32:50] Speaker 04:
Judge Wilkins alluded to congressional interns.

[00:32:52] Speaker 04:
The U.S.

[00:32:53] Speaker 04:
Attorney's Office here in D.C.

[00:32:54] Speaker 04:
offers unpaid part-time internships to undergraduate and law students and so do many state courts.

[00:33:01] Speaker 04:
Do those students, even in the absence of a non-disclosure agreement not owe a duty of confidentiality and loyalty

[00:33:08] Speaker 04:
that would prevent them from secretly recording and disclosing internal deliberations, discussions with the judge or with their supervisors, draft opinions and the like.

[00:33:17] Speaker 04:
Of course not.

[00:33:18] Speaker 04:
And again, the evidence.

[00:33:21] Speaker 05:
Can you explain?

[00:33:22] Speaker 05:
I think they said she had to sign

[00:33:25] Speaker 05:
a non-disclosure agreement.

[00:33:27] Speaker 05:
That was the end of it.

[00:33:28] Speaker 04:
They never presented it, but there was evidence on a number of occasions, and counsel alluded to some of them, where she understood that what she was being given access to was to be confidential.

[00:33:41] Speaker 04:
There was a secret war room that the eclipse she was doing would be seen by Hillary Clinton herself.

[00:33:50] Speaker 05:
Does the record show what she did with all this stuff she collected?

[00:33:55] Speaker 04:
Yes, the record show, what she did with all the videos, every night she... No, I mean, they weren't the video that...

[00:34:03] Speaker 05:
involved Fogel or whatever his name is, the video that actually was published.

[00:34:11] Speaker 04:
She transmitted all the videos she talked to her supervisors at Project Veritas and it was up to them what they put in the video.

[00:34:20] Speaker 04:
And what happened?

[00:34:21] Speaker 05:
Nothing happened as far as the record reveals.

[00:34:25] Speaker 04:
Yeah, well, that's true.

[00:34:26] Speaker 04:
The tapes that she made, again,

[00:34:30] Speaker 04:
It wasn't absolutely was not responding to the contents of that tape.

[00:34:35] Speaker 04:
They were responding to the fact they learned that democracy partners had been infiltrated and how could this happen?

[00:34:41] Speaker 04:
And that was the approximate cause.

[00:34:47] Speaker 05:
Any questions?

[00:34:48] Speaker 05:
Okay.

[00:34:49] Speaker 05:
Thank you.

[00:34:49] Speaker 04:
Thank you, Your Honor.

[00:34:52] Speaker 05:
Does counsel have any time left?

[00:34:55] Speaker 05:
All right.

[00:34:55] Speaker 05:
Why don't you take two minutes?

[00:35:12] Speaker 01:
Thank you, Your Honor.

[00:35:16] Speaker 01:
To your point, Judge, we are asking a lot, I understand.

[00:35:20] Speaker 01:
This is a unique case.

[00:35:21] Speaker 01:
This is about the borderline of protecting First Amendment rights as constitutional gatekeeper under Bose.

[00:35:30] Speaker 01:
And to Judge Henderson's point, Claymore, Hussler both indicate

[00:35:35] Speaker 01:
Jury's getting passionate about these sorts of issues.

[00:35:39] Speaker 01:
They decide these issues wrong.

[00:35:40] Speaker 01:
And where the First Amendment is implicated, there is a role for this court to be involved different from almost any other case that would be before this court.

[00:35:50] Speaker 01:
I just want to...

[00:35:51] Speaker 01:
re-emphasize that here.

[00:35:53] Speaker 01:
The finding of a fiduciary duty here is incredibly difficult and absurd in comparison to what we have shown nationwide and within DC in terms of precedent.

[00:36:05] Speaker 01:
There is absolutely no evidence from the record below of direct instructions from democracy partners about confidentiality.

[00:36:13] Speaker 01:
There are sparse mentions about things that are kind of secret.

[00:36:17] Speaker 03:
Indulge me if you would.

[00:36:20] Speaker 03:
get what what is your in your view what is your principle argument on the fraudulent misrepresentation part of the case the harm the other part the fiduciary relationship i understand your yes that the intervening act of a publication from which harm stemmed

[00:36:40] Speaker 01:
means that they are evading New York Times v. Sullivan and that this court should deny that relief.

[00:36:48] Speaker 01:
New York Times v. Sullivan and Hustler act independently of Cohen.

[00:36:54] Speaker 01:
And so Cohen would say, if you can show that damages occurred in the infiltration, like they did at Newman, where there was a causal relationship and it was timely, it happened right then, then they would be able to bring damages.

[00:37:07] Speaker 01:
They didn't act right then.

[00:37:08] Speaker 01:
They spent the whole weekend to prevent the publication.

[00:37:11] Speaker 01:
This is the death of the First Amendment.

[00:37:14] Speaker 03:
There were several fights going on, but that doesn't mean that your conclusion is the right conclusion.

[00:37:21] Speaker 03:
We believe that.

[00:37:22] Speaker 03:
And especially if you have proper jury instructions, which explain to the jury damages can be only awarded on these terms.

[00:37:32] Speaker 03:
Have nothing to do with the publication.

[00:37:34] Speaker 01:
Shouldn't have gone to the jury.

[00:37:36] Speaker 01:
Juries get decisions wrong and in cases implicating the First Amendment where you were the evidence.

[00:37:42] Speaker 03:
Trying to make Bose the law in all circumstances, it clearly is not.

[00:37:48] Speaker 03:
It's a limited rule.

[00:37:51] Speaker 03:
And if you look it up, the courts do not routinely put all these First Amendment cases in the Boas category.

[00:37:59] Speaker 03:
That is not the law.

[00:38:01] Speaker 01:
And we are not suggesting, Your Honor, to lightly do this.

[00:38:06] Speaker 01:
We are suggesting that the record below shows that the damages here are all tied to publication, that there is almost no evidence showing that it occurred from any sort of infiltration.

[00:38:18] Speaker 03:
The real question is whether the jury in this circumstances could reasonably separate it out as instructed and understand no damages could be given

[00:38:27] Speaker 03:
based on what was published.

[00:38:30] Speaker 03:
It had to be on the breach of the misrepresentation.

[00:38:34] Speaker 03:
If they couldn't do that, they were instructed you couldn't do it, right?

[00:38:37] Speaker 01:
I think it's the first point.

[00:38:39] Speaker 01:
No, it shouldn't have gone to the jury.

[00:38:41] Speaker 01:
That's your second point.

[00:38:42] Speaker 03:
So you're assuming they couldn't do it.

[00:38:44] Speaker 03:
You shouldn't even assume there's a possibility.

[00:38:46] Speaker 03:
That's what your assumption is?

[00:38:47] Speaker 03:
Yes, Your Honor.

[00:38:48] Speaker 01:
But second, not reasonably that there would be clear and convincing evidence at that point.

[00:38:54] Speaker 01:
Thank you, Your Honor.

[00:38:55] Speaker 01:
We'd ask that you reverse and remove.