Why The ACORN "Stings" Really Bother Me

The conservative media has spent the better part of the last few weeks heaping praise upon James O'Keefe and Hannah Giles--the two conservative activists who secretly recorded various ACORN employees and then posted the videos on the website of fellow conservative activist Andrew Breitbart--and treating them as if they are the modern incarnation of Woodward and Bernstein. Even the mainstream media has, to some extent, given positive coverage to their endeavors and indulged in the fantasy that they exposed some sort of significant criminal activity.

I suppose that's to be expected when the storyline is driven by footage of people saying very questionable things. Just play the video and move on. But there's something very problematic about how all this went down. Consider for a moment the premise of these "stings." O'Keefe and Giles, who look like they just walked out of a Young Republicans chapter meeting, walk into various ACORN offices dressed up as a pimp and prostitute (or at least as they imagine such people might look). They then ask a bunch of totally off-the-wall questions to unsuspecting (or in some cases suspecting) low-level ACORN employees and record the responses. As Jack Schafer correctly notes in his otherwise far-too-credulous piece at Slate, this is not a sting; it's the equivalent of a Sasha Baron Cohen sketch.

In a real undercover investigation, you catch people engaged in activity that, based on the circumstances, you can be confident they are inclined to commit on their own volition. In a prostitution sting, for example, an officer poses as a prostitute and arrests those who go out of their way to solicit her. In an undercover drug sting, you pose as a buyer or dealer and arrest those who take the initiative to engage in an illegal transaction with you. In both cases you can be fairly confident that the person you arrested would have attempted to buy sex or drugs from someone else if the police hadn't been there.

But you can't entrap people. You can't present them with unrealistic situations or go out of your way to get someone to do something that they might not otherwise do. You can't, for example, leave a $100 dollar bill on the ground and arrest people who, in a momentary lapse of judgment, take the money.

What O'Keefe and Giles are doing isn't quite entrapment, but it isn't remotely the equivalent of a sting either, unless you assume that ACORN employees are routinely confronted with fake-looking pimp and prostitute duos who come into the office asking for advice on how to set up a prostitution business. I'm going to go out on a limb and guess that real pimps and prostitutes don't usually wander into the offices of community services organizations and explicitly ask for help in setting up their illegal businesses. It's a safe bet that none of the employees filmed surreptitiously in these videos have ever encountered a situation like this before. So all these videos really show are people's instant reactions to a situation far removed from their everyday experience and training.

That's why the comparison to Sasha Baron Cohen is so apt. When confronted by very unusual behavior or unusual situations, people have a tendency to be agreeable and to play along. Most people don't like confrontation and will instinctively go to great lengths to avoid it. If you doubt this, go watch Borat or Bruno or any episode of the Ali G Show. It is this same human tendency that serves as the basis for all of Cohen's comedy. He specializes in getting people (often famous people) to say things that they would not normally say.

What you say on the spot, when confronted with an unusual request, is a very poor indicator of your overall judgment. It's just your instant reaction, and it is usually driven, more than anything else, by a desire to avoid an awkward situation or a confrontation. This is especially true when you are confronted with possible criminal activity; many people are understandably reluctant to confront criminals about their criminal activity to their face, especially when you are alone with them. Better to placate them and then figure out what to do after they are they are gone.

The people caught in these videos were not engaged in deliberative activity, they were merely reacting to unusual provocation. The real test of their judgment was not what they said on the fly but what they did afterward, when the filmmakers had left the premises and they finally had a moment to process the encounter. Unfortunately, that moment is not on the tapes. We do know, however, that at least one of the employees captured on the video reported the duo to the police after they left the office (he was fired anyway). In another instance, the two were actually asked to leave and a police report was filed. Others undoubtedly concluded that it was a prank, either during the encounter or after having the chance to think about it for a while, and therefore shrugged it off and took no further action.

During my time as a prosecutor, I had several unusual encounters with witnessess or a defendant's family members, encounters that made me very uncomfortable and to which I typically responded by trying to avoid confrontration and end the conversation as soon as possible. In one instance, a defendant called me up pretending to be a witness. As the conversation went on, it began to dawn on me that I was likely talking to the defendant, not a witness, which is very problematic (not only is it illegal to lie to a prosecutor, it is improper for a prosecutor to speak directly with a defendant who is represented by counsel). Not knowing quite what to do, I played along for a while and tried to end the conversation as quickly as possible. Once I hung up the phone, and had a chance to process what had just happened, I immediatley reported the encounter to my supervisor and we took appropriate action. I honestly don't remember exactly how the phone conversation went, but I'd bet that if it was played back without any context (such as without explaining what I did after the call), it could make me look bad. That's what's so problematic about judging people, much less an entire organization, based on such encounters.

The other point that is not being made, but should be, is that these ACORN workers had absolutely nothing to gain from helping out this pimp and prostitute duo. In a typical sting, the subject of the sting has some plausible motive for committing wrongdoing; they want drugs or sex or money, etc. In a sting directed at an company or organization, the goal is typically to catch employees engaged in illegal behavior that benefits that company or organization (such as bribing public officials or deceiving customers). That's not the case here. No conservative has bothered to even offer a theory as to why it would be in ACORN's interest to assist people in setting up prostitution rings. How would ACORN benefit from such activity? How would these individual employees benefit? What's in it for them?

ACORN employees are trained to help poor people (the vast majority of whom are not criminals) deal with common problems. So, at worst, what you have here are examples of employees who, eager to help whomever comes through the door, offered to help people whom they should not have (and without a promise of anything in return). There's no quid pro quo even alleged. And again, what's captured on film are not final decisions, but instant reactions.

But based on these "stings" a number of employees lost their jobs and an entire community service organization has been vilified to the point where its future as an organization is severely threatened. Everyone should find that troubling, because it could happen to any organization or company.

With disguises and hidden cameras, it's really not hard to get people to say embarrassing things or capture them acting in ways that--when edited and removed from all context--look really bad. It's not as if O'Keefe and Giles have demonstrated some amazing ability to ferret out the truth. Their videos are horribly amateur and their stings ham-handed in execution and conception. Any two schmucks with a camera could do the same thing.

And given the success of this endeavor at tarnishing an entire organization, it's just a matter of time before the very same techniques are applied to different targets. O'Keefe and Giles (and various copycats) are undoubtedly already planning and executing their next "sting."

And until the press realizes that this technique can be used to slime just about any organization or company, and starts ignoring it or exposing it for the nonsense that it is, they'll continue to do it, destroying people's lives and reputations in the process.