First Amendment Win—D.C. Circuit Overturns Verdict Against James O’Keefe, Protects Undercover Journalism

A federal appeals court on Friday overturned a $130,000 jury verdict against journalist James O’Keefe, ruling that the award violated the First Amendment by punishing the publication of a news story.

The U.S. Court of Appeals for the D.C. Circuit, in a 2-1 decision written by Judge Karen LeCraft Henderson, reversed the 2022 judgment in favor of Democratic consultant Robert Creamer and his firm Democracy Partners. The case stemmed from Project Veritas’s 2016 undercover videos titled “Rigging the Election,” which alleged that Creamer’s group and operative Scott Foval were involved in efforts to incite violence at rallies for then-candidate Donald Trump.

The jury had awarded $120,000 for lost contracts Creamer attributed to the videos plus $10,000 in stipulated wiretapping damages. The appeals court held that the damages mixed the consequences of protected speech with unprotected conduct and therefore could not stand. Citing Supreme Court precedent, the panel said that when protected speech is combined with unlawful activity, a plaintiff must prove the unprotected conduct—not the speech itself—was the dominant cause of the harm. Testimony indicated the public reaction to the published reporting, much of it gathered outside the firm’s offices, was the primary reason contracts were canceled.

The court agreed that footage obtained by reporter Allison Maass through a fraudulent unpaid internship inside Democracy Partners was not protected by the First Amendment because it was acquired by deception. O’Keefe therefore had no constitutional right to publish those specific internal segments. However, that finding did not salvage the overall award. The panel also reversed the wiretapping verdict. Judge Harry Edwards joined Henderson; Judge Robert Wilkins concurred in part and dissented in part.

O’Keefe, who left Project Veritas in 2023 and now operates O’Keefe Media Group, described the ruling as a significant validation of undercover journalism. Creamer’s attorney said his clients were disappointed and are weighing further options.

The decision draws a line between lawfully obtained reporting on matters of public concern and specific methods of gathering information that violate generally applicable laws. It does not grant journalists a blanket exemption from fraud or recording statutes, but it limits the ability of targets to recover damages that effectively punish the act of publication itself. The ruling is expected to influence other pending cases involving hidden-camera work.