D.C. Circuit Overturns Damages Award for James O'Keefe's Undercover Journalism

The U.S. Court of Appeals for the D.C. Circuit on Friday vacated a $130,000 jury award against O'Keefe and Maass, ruling the damages violated the First Amendment by punishing publication of a news story.

• $120,000 of the award covered lost contracts; $10,000 covered wiretapping claims.
• 2-1 panel: Circuit Judges Henderson and Edwards formed the majority; Judge Wilkins dissented in part.
• Testimony showed the video's publication, not Maass's infiltration, drove AFSCME to cancel contracts.
• The court also ruled Maass never held enough authority at Democracy Partners to owe it a fiduciary duty.

Why it matters: Citing NAACP v. Claiborne Hardware (1982), the panel held that when protected speech is mixed with unprotected conduct, a plaintiff must show the unlawful conduct — not the speech — was the dominant cause of harm. The court found it was not.

• The ruling leaves intact the finding that some of Maass's recording methods were tortious and unprotected.
• Wilkins argued the panel should have affirmed liability and remitted damages to a nominal amount rather than wiping the award entirely.

How 5 sources split on this story

Where they split: The core dispute is whether the damages punished the publication itself — protected speech — or the fraudulent internship scheme that produced some of the footage.

What’s next: Creamer's attorney Joseph Sandler said his clients are evaluating next steps after the ruling.

• O'Keefe, now running O'Keefe Media Group, said the precedent strengthens his position in other pending suits.
• Whether Creamer and Democracy Partners will seek rehearing en banc or petition the Supreme Court.
• How broadly lower courts will apply this ruling to other undercover journalism cases involving mixed protected and unprotected conduct.