The Fight Back
Some liberals and progressives had quickly come to ACORN’s defense. In September, Daily Kos, a progressive blog, defended ACORN and condemned the congressional vote as a threat to free speech. In several cities ACORN’s supporters organized rallies, issued statements, and tried to counter the distortions in the media.
ACORN filed suit against O’Keefe and Giles for violating Maryland’s legal requirement of two-party consent to create sound recordings when they visited ACORN’s office in Baltimore. The multimillion dollar suit seeks damages from conservative activists including a columnist who posted the videos on his Web site. On October 1, a progressive coalition that included the NAACP, Leadership Conference on Civil Rights, Center for Community Change, and the Alliance for Justice, released a statement supporting ACORN. In that statement, Ben Jealous, president of the NAACP, said, “We are deeply troubled by the despicable ‘railroading’ strategy being employed by anti-democratic zealots to bring down [ACORN] and end their invaluable service to poor and disadvantaged communities.” But only one newspaper picked up the story.
On October 23, 2009, a coalition of two-dozen community organizers, labor leaders, and clergy rallied in Watts in support of ACORN. “It’s a witch hunt after a segment of the progressive populations,” Paul Zimmerman, director of the California Association of Non-Profit Housing, said. In November, the progressive filmmaker Robert Greenwald’s Brave New Films released an online campaign in support of ACORN.
On November 12, the Center for Constitutional Rights filed a lawsuit challenging Congress’s defunding of ACORN, charging Congress with violating the bill of attainder provision in the U.S. Constitution (a bill of attainder is something that singles out a group or individual for punishment without a trial, and is prohibited), the Fifth Amendment right to due process, and the First Amendment right to freedom of association by targeting affiliated and allied organizations.
Veteran foundation consultant and senior fellow in Georgetown Public Policy Institute’s Center for Public and Nonprofit Leadership, Pablo Eisenberg, while also criticizing ACORN’s past errors, questioned why more people had not come to the organization’s defense in a piece published in The Chronicle of Philanthropy:
“In the assault on ACORN, no lies have been spared, no accusations tempered by reason, and no acknowledgment has been made of the enormous good ACORN has done over the years. Behind the attacks are a deep hatred of liberals and progressives — especially those in the Obama administration — and a lack of concern and respect for poor and minority constituencies.”
In December 2009, facts exonerating ACORN began to emerge. On December 7 an independent report by the former Attorney General Scott Harshbarger cleared ACORN of any illegal conduct. The report found:
“While some of the advice and counsel given by ACORN employees and volunteers was clearly inappropriate and unprofessional, we did not find a pattern of intentional, illegal conduct by ACORN staff; in fact, there is no evidence that action, illegal or otherwise, was taken by any ACORN employee on behalf of the videographers.”
His report also noted that the videos were doctored and misleading.
The report reinforced criticism of the mainstream media’s handling of the story, including the way CNN played the “prostitution scandal” videotapes over and over again. As Joe Conason reported, the ACORN tapes amounted to “an exercise in propaganda, not journalism.”
But the mainstream press continued to botch the ACORN story. For example, the Associated Press story on the Harshbarger Report published in The Washington Post didn’t mention that the conservative videographers rebuffed attempts by Harshbarger to interview them and refused to permit him to review the unedited tapes so he could compare the raw footage with versions that were released. Most major news outlets did not even mention the report.
Five days later, on December 12, 2009, federal judge Nina Gershon blocked U.S. officials from enforcing the funding ban on ACORN. She ruled that Congress had violated the Constitution’s ban on bills of attainder. ACORN lawyers quoted several Republicans making unsubstantiated accusations about ACORN being a criminal organization that deserved to be punished.
Soon after Harshbarger refuted the charges of financial wrongdoing and voter fraud against ACORN, a nonpartisan Congressional Research Service report (CRS) released on December 22 found no evidence of voter fraud associated with ACORN and “no instances in which ACORN violated the terms of federal funding in the last five years.” Moreover, the report found that the two conservative activists who secretly videotaped conversations with ACORN workers and distributed those recordings on the Web without their consent violated laws in Maryland and California. CRS also noted that as of October 2009, ACORN had been subjected to at least 46 federal, state, and local investigations with only 11 still outstanding. Only one state, Nevada, had brought charges against ACORN under an ambiguous law that prohibited paying staff to register voters.
But it was too late. ACORN had been defamed and the positive news failed to undo the damage.