A federal appeals court just handed James O’Keefe a major First Amendment victory, and the ruling reaches far beyond one journalist or one decade-old political investigation.

The U.S. Court of Appeals for the D.C. Circuit reversed a $130,000 judgment against O’Keefe and undercover reporter Allison Maass on Friday.

The court’s core conclusion was blunt: a jury cannot use an unprotected act as a back door to make journalists pay for the damage caused by publishing a protected news story.

That distinction could shape how courts handle undercover reporting for years to come.

The case began with Project Veritas’s 2016 “Rigging the Election” investigation.

ADVERTISEMENT

Undercover reporters used false identities while looking into Democratic political consultants and organizations working around Hillary Clinton’s presidential campaign.

Maass posed as the niece of a fictional donor and became an unpaid intern at Democracy Partners, a consulting firm run by Robert Creamer. She spent eight days inside the office and secretly recorded conversations before Project Veritas published a three-part video series.

The videos included allegations about activists staging confrontations at President Trump’s campaign rallies. The appeals court carefully noted that those allegations were never tested in the case and that its ruling should not be read as endorsing them.

That warning matters. The judges were not deciding whether every claim in the videos was correct.

They were deciding whether the First Amendment allowed a damages award tied largely to the consequences of publishing the videos.

The D.C. Circuit’s 38-page opinion shows why that line became decisive. A jury had awarded $120,000 on a fraudulent-misrepresentation claim and another $10,000 on wiretapping claims after clients and donors cut ties with Creamer’s organizations, creating a judgment that blended the alleged deception with the much larger impact of publication.

But the trial record showed that the published investigation and the scandal it created were the main reasons those relationships collapsed.

In other words, the money was not calculated around the cost of vetting or removing a dishonest intern. It reflected the public fallout from the story itself.

Circuit Judge Karen LeCraft Henderson, writing for the court, concluded that the First Amendment did not permit that result.

ADVERTISEMENT

The government can impose liability for unlawful conduct committed while gathering news. It cannot quietly turn that liability into compensation for the damage caused by protected publication.

The opinion applies that rule to the evidence the jury actually heard, including testimony about lost clients, lost donors and the reputational shock that followed the videos’ release.

The distinction is a constitutional firewall: an unpopular story cannot become the basis for crushing damages simply because the publication had consequences.

The panel also rejected the argument that Maass became Creamer’s fiduciary merely because she had talked her way into an unpaid internship.

Access to private information alone does not make someone a fiduciary. The relationship requires trust plus an expectation that the person will exercise judgment for another party’s benefit.

The court found that Maass’s minor duties did not create that relationship. She answered the door, delivered a package, clipped news coverage and inventoried signs.

She never signed the nondisclosure agreement that Democracy Partners said it intended to give her.

Without a fiduciary duty, the wiretapping theory built on an alleged breach of that duty also failed.

The decision was not a declaration that reporters may trespass, lie, record or break any law they please.

ADVERTISEMENT

Henderson explicitly separated the methods used to gather information from the constitutional protection attached to publication. One can create liability; the other cannot be used to inflate that liability beyond its lawful boundaries.

Senior Circuit Judge Harry Edwards joined the majority. Judge Robert Wilkins agreed with much of the analysis but dissented in part, arguing that the court should have preserved fraud liability while reducing the award to a nominal amount.

The majority went further and reversed the district court’s refusal to enter judgment for O’Keefe and Maass.

That wiped away the verdict rather than merely trimming it.

The Washington Examiner reported that O’Keefe celebrated the ruling by saying his faith in journalism and the courts had been restored. Its account traces the case from the 2016 videos through the 2022 jury award and Friday’s appellate decision, including Creamer’s withdrawal from campaign work after the recordings reached national coverage.

The report also captures the split inside the panel. Henderson and Edwards rejected the damages theory and the claimed fiduciary relationship, while Wilkins would have preserved fraud liability but reduced the award to a nominal amount.

That disagreement sharpens the ruling’s reach. All three judges recognized the need to separate constitutionally protected publication from any independently unlawful conduct used to obtain information; the majority concluded that the record could not support the judgment that had been entered.

The public appeals docket confirms that O’Keefe and Maass brought the case to the D.C. Circuit in May 2025. It records the parties’ briefing, the joint appendix filed that October and the court’s order setting oral argument for January 15, 2026.

Those entries matter because this was not a rushed emergency ruling or a political press release. The panel reviewed a mature civil record built through years of litigation, a five-day jury trial and post-trial motions before deciding the legal theories could not sustain the judgment.

ADVERTISEMENT

The August 21 decision follows a long appellate process and leaves O’Keefe and Maass holding the operative D.C. Circuit judgment. Democracy Partners can still evaluate any further legal options.

The larger stakes are impossible to miss.

Undercover journalism is supposed to make powerful people uncomfortable. It often depends on deception because a subject who knows a camera is rolling will not behave the same way.

That does not place reporters above the law.

It does mean judges must identify the actual injury caused by any unlawful newsgathering conduct and prevent juries from charging journalists for the political or financial consequences of telling the public what they found.

If courts blur that line, every hard-hitting investigation becomes vulnerable to a creative tort claim and a ruinous damages demand.

The D.C. Circuit refused to let that happen here.

O’Keefe won his appeal. More importantly, the court reinforced a principle every independent newsroom needs: the government cannot punish publication by calling it something else.

 

Join The Conversation. Leave a Comment.