The DC Circuit Court of Appeals is hearing a case involving James O’Keefe and Democracy Partners that could determine whether undercover journalism remains legal in Washington, D.C.

The issue at hand is whether reporters can be punished not for defamation, but for the act of going undercover and whether alleged “harm” can be blamed on the investigation itself rather than the publication, effectively sidestepping First Amendment protections.

Before a panel of three judges on the Federal Appeals Court Thursday were two issues.

Issue 1: Can an undercover reporter be accused of fraud for misrepresenting themselves during investigative journalism? We argue that any “harm” comes from the publication, not the investigation, and is fully protected by the First Amendment.

Issue 2: Can a fiduciary duty be imposed on a part-time, unpaid intern who never signed an NDA? We say no, such a duty cannot be unilaterally forced on someone in these circumstances.

“That’s what investigative journalists do. This determination by this court decides whether undercover reporting can exist in the nations capital moving forward.” – James O’Keefe’s Attorney Ben Barr