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Brown's no-win cases

Secret recordings, one of ACORN, another by a former aide, put the attorney general in a tight spot.

November 18, 2009

California's attorney general and prospective Democratic gubernatorial candidate, Jerry Brown, is trapped in a political cage from which there will be no easy escape. When it comes to secretly recorded conversations, and a national scandal involving the housing advocacy group ACORN, Brown is going to find himself in trouble no matter what he does.

Brown's office is investigating two conservative filmmakers, James O'Keefe III and Hannah Giles, who last summer posed as a pimp and a prostitute and secretly videotaped employees at ACORN offices giving tax advice that was highly unethical if not illegal. Some of those offices were in California, which forbids secret electronic recordings of "confidential communication." Liberal activists are expecting Brown to throw the book at the filmmakers -- and conservatives are simultaneously pillorying him for a separate incident in which he gave his own spokesman a pass after he appeared to be breaking the same law. Although the controversy might well haunt Brown during his campaign for governor, the two cases are actually very different from a legal standpoint.

Scott Gerber, Brown's former communications director, resigned this month after admitting that he secretly recorded phone conversations with newspaper reporters, including from The Times. The attorney general's office closed its investigation into Gerber last week without filing charges. Its rationale was that no one should expect an on-the-record conversation between a news reporter and a source to be confidential, including the reporter. We strongly agree that that's the way the law should be interpreted, but opinions differ because the phrase "confidential communication" in the law is poorly defined. Brown has rightly called for an independent investigation into Gerber's activities.

Then there's the ACORN case. O'Keefe and Giles did not disclose that they were journalists -- in fact, they disguised themselves as underworld figures -- and entered private offices for consultations on tax matters, while secretly videotaping the proceedings. This couldn't possibly be interpreted as an on-the-record conversation with a reporter. Though we admire the filmmakers' chutzpah and think they performed a worthwhile public service, they certainly appear to have violated state law as it currently stands.

Into this minefield steps Brown, who will infuriate his liberal base if he declines to prosecute O'Keefe and Giles, and will open himself to charges of hypocrisy if he does. Yet the problem isn't of his making -- it stems from a vague and overly restrictive statute, one that the Legislature should revisit next year.

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