Appeals Court Voids $130K Verdict Against O'Keefe

A federal appeals court has thrown out the $130,000 damages award that Democratic consultant Robert Creamer and his firms won against conservative journalist James O'Keefe over a 2016 undercover video sting.

The U.S. Court of Appeals for the D.C. Circuit ruled Friday that the jury's award violated the First Amendment because it punished the defendants for publishing a news story.

The panel split 2-1 in the case, Democracy Partners, LLC v. O'Keefe.

What the court decided

The award had two parts: $120,000 for lost contracts and $10,000 on wiretapping claims. Both are now set aside.

Writing for the majority, Circuit Judge Karen LeCraft Henderson — joined by Judge Harry Edwards — leaned on the Supreme Court's 1982 decision in NAACP v. Claiborne Hardware. Under that precedent, when protected speech is mixed with unprotected conduct, a plaintiff must show the unlawful conduct, not the speech, was the dominant cause of the harm.

The panel found Creamer's side did not clear that bar. Testimony at trial showed it was the publication of the video — not the infiltration by Project Veritas operative Allison Maass — that led the union AFSCME to cancel its contracts.

The court also held that Maass never held enough authority inside Democracy Partners to owe the firm a fiduciary duty.

The ruling does not bless everything the operation did. The panel left intact the finding that some of Maass's recording methods were tortious and unprotected.