A Bit on Pentagon Contractor’s Wiretapping Claim Over Hidden Date Recording by O’Keefe Media Group

First, a quick summary from today’s decision by Judge Amit Mehta (D.D.C.) in Mannina v. O’Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court’s treatment of plaintiff’s defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here’s what the court had to say about the wiretapping claim:

Plaintiff alleges that the statements made and recorded while on the dates and during the confrontation at the Wharf are oral communications intercepted for the purpose of committing a tortious act in violation of the D.C. and federal wiretapping statutes.

Under both statutes, it is unlawful to “intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept any wire or oral communication.” An “oral communication” is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

Even where that expectation is justified, both the D.C. and federal wiretapping statutes permit the interception of oral communications as long as one party to the communication has consented to the recording. But both also provide that this single-party consent rule does not apply if the communication is intercepted “for the purpose of committing any criminal or tortious act.”

Defendants first argue that Plaintiff has failed to plausibly allege that his expectation that his statements would not be intercepted was justified, because (1) [redacted] was a “new acquaintance” with whom he was meeting for the first time; (2) the dates were in public restaurants full of other people; (3) [redacted]’s use of a phone during the dates to send texts meant Plaintiff was on notice that was in possession of a recording device; and (4) recording devices were clearly used during the Wharf “ambush.” Defendants … mistakenly ask the court to draw inferences in their favor from the facts alleged in Plaintiff’s complaint. And the inferences they urge “call[] for the consideration of a host of intensely fact-bound circumstances.” So “[a]t this early stage of the proceedings, Plaintiff[‘s] allegations are sufficient to permit an inference that the communications at issue were made with a reasonable expectation that they would not be subject to interception.”

In a final effort, Defendants aver that the tortious-purpose exception is unconstitutional under the First Amendment, on its face and as applied. Defendants advanced the same arguments before the court in Democracy Partners v. Project Veritas Action Fund (Democracy Partners II) (D.D.C. 2020), which held that the wiretap statutes are constitutional because they are content neutral and clear intermediate scrutiny…. The court denies Defendants’ motions to dismiss on this issue but will not decide it now. This decision is currently on appeal, and the D.C. Circuit held oral arguments in January of this year. The court will revisit the issue on summary judgment, likely at that point with guidance from the Circuit. Permitting the wiretapping claims to proceed will not enlarge the scope of discovery, given that all claims rely on the same allegations.