Democracy Partners, LLC v. James O'Keefe

Summary

The D.C. Circuit reversed the denial of the defendants' motion for judgment as a matter of law, holding that the jury's $120,000 fraudulent-misrepresentation damages award violated the First Amendment because the protected content of the 'Rigging the Election' video, not Allison Maass's tortious infiltration, was the principal cause of Creamer's lost contracts, and that under Claiborne Hardware a plaintiff whose damages are partly attributable to protected speech must show the unprotected conduct was the dominant force behind the loss. The court further held that a limited public figure cannot evade the New York Times actual-malice standard by pleading strictly economic damages when the underlying legal injury is reputational. Separately, it held that Maass, an unpaid intern with no delegated power, was not Democracy Partners' fiduciary, so her secret recordings lacked the tortious purpose required by the federal and D.C. wiretapping statutes. Circuit Judge Wilkins concurred in part and dissented in part: he agreed the award failed under Claiborne but would have affirmed liability and remitted damages to a nominal amount, and would have affirmed the wiretapping judgment under D.C.'s confidential-relationship tort.