Democracy Partners, LLC v. James O'Keefe

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 15, 2026 Decided August 21, 2026 No. 25-7080 DEMOCRACY PARTNERS, LLC, ET AL., APPELLEES v. JAMES O’KEEFE AND ALLISON MAASS, APPELLANTS Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01047) Benjamin Barr argued the cause for appellants. With him on the briefs was Stephen R. Klein. Joseph E. Sandler argued the cause for appellees. With him on the brief was Christina E. Bustos. Before: HENDERSON and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge HENDERSON. Opinion concurring in part and dissenting in part filed by Circuit Judge WILKINS.  2 KAREN LECRAFT HENDERSON, Circuit Judge: The principal question in this appeal is whether the jury’s damages award violated the First Amendment by punishing the defendants for publishing a news story. We conclude that it did. The separate issue is whether, under D.C. law, one of the media defendants became the fiduciary of her own news target by tricking him into hiring her as an unpaid intern. We conclude that she did not. For these reasons, we reverse the denial of the defendants’ motion for judgment as a matter of law. I. BACKGROUND A. Factual Background James O’Keefe is the Founder and former CEO of Project Veritas, a non-profit media organization that gathers news “almost exclusively [through] undercover journalism.” Project Veritas v. Schmidt, 125 F4th 929, 937 (9th Cir. 2025) (en banc). “[T]o investigate matters of public concern,” Project Veritas deploys its journalists to public and private settings where they use “open and secret audiovisual recording” techniques to interact with sources. Id. In spring 2016, Project Veritas assigned one of its investigative reporters, Christian Hartsock, to find leads on a potential story about voter fraud schemes in the Wisconsin elections. Acting undercover, Hartsock infiltrated an election- watch party at a Milwaukee bar, where he met Scott Foval, a Democratic political consultant. Using a fake name and backstory, Hartsock convinced Foval that he worked for a fictitious political consultant group and that one of his clients was a “progressive philanthropist [with] a deep disdain for voter ID laws.” J.A. 374. Hartsock told Foval that he was working on a “surrogate voter scheme[],” J.A. 868, in which his client planned to open a shell company in Wisconsin, hire  3 out-of-state voters and illegal immigrants and issue them employer-IDs that would allow them to vote fraudulently in Wisconsin’s elections. Foval thought Hartsock’s scheme was “brilliant” and volunteered “all this advice” on “how to pull it off.” J.A. 374. He advised Hartsock to transport fraudulent voters to polling places with rentals or auctioned-off cars and he recommended expanding operations to Michigan and Illinois. Foval also suspected that Hartsock’s unnamed client (who did not, in fact, exist) was receiving advice on the voter fraud scheme from Bob Creamer, a Democratic consultant in D.C. Foval claimed that he “worked with Bob Creamer one-to-one all the time” and that Creamer was “somebody who hatches these ideas to people” on an “ongoing basis.” J.A. 942. “One of the things we do,” Foval told Hartsock, is “stage very authentic” protests at Republican rallying events using trained locals and “get them[] into a situation on tape . . . that we can use later.” J.A. 948. Hartsock secretly recorded his entire conversation with Foval. After the barroom conversation with Foval, Project Veritas turned its investigation to Creamer. Posing again as the fake consultant character, Hartsock persuaded Foval to arrange a meeting between Creamer and Hartsock’s fake client, a role played by Daniel Sandini—another Project Veritas reporter. According to an internal Project Veritas memo, a main goal of the meeting was to convince Creamer to advise Sandini on the fictitious voter fraud scheme. A secondary objective was to uncover more information about the staged protests at Republican rallying events. Sandini met with Creamer several times in summer 2016 and secretly recorded each conversation. As Hartsock had done with Foval, Sandini fed Creamer an elaborate backstory spun of whole cloth. He introduced himself to Creamer as  4 “Charles Roth,” a real-estate millionaire and son of a wealthy Hungarian immigrant who had made his fortune in America through urban development. Guilt-ridden that his father’s work had displaced minorities and immigrants, Sandini told Creamer that he wanted to use his wealth to prevent Donald Trump’s election to the Presidency. Believing Sandini to be an interested donor, Creamer asked him to finance several voter outreach initiatives headed by Americans United for Change (AUFC), a political consulting group and one of Creamer’s clients. To maintain appearances, Sandini made a $20,000 contribution to AUFC with funds supplied by Project Veritas. He also requested Creamer’s help with the surrogate voter fraud scheme in Wisconsin. Creamer politely declined. Undeterred, Project Veritas took steps to infiltrate Creamer’s political consulting firm, Democracy Partners. Project Veritas reporter Allison Maass was assigned to the task. Building on the Charles Roth storyline, Maass assumed the role of Roth’s imaginary niece, Angela Brandt, a 20-something- year-old with a budding interest in politics. Sandini, playing the Roth role, asked Creamer if he had any work for Maass and Creamer stated he was open to hiring her as an unpaid intern at Democracy Partners’ D.C. office. Creamer’s subsequent vetting of Maass was perfunctory. He did not ask her to produce any legal identification, a list of references or a resume. After a “modestly-lengthy” telephone interview, Creamer offered her the position. J.A. 247–48. When Democracy Partners eventually asked Maass for her resume to determine what projects to assign her, Maass submitted a fake one. The only work experience it listed was several years of bartending and a brief stint as a waitress at Applebee’s. And although Maass was told on her first day that she would be asked to sign a non-disclosure agreement, she was never presented with one.  5 Maass started her internship at Democracy Partners in late September 2016. She worked there for eight days. Her duties were what one would expect of an unpaid intern with no relevant work experience. She sat at the reception desk near the entrance and watched people come and go. One time, she delivered a package. Creamer also asked her to take an inventory of political signs. The only remotely substantive work Maass performed was searching the Internet and clipping together news footage of protests that Democracy Partners had organized as part of its “bracketing” initiative—a counter- messaging program coordinated by Democracy Partners on behalf of the Democratic National Committee (DNC) and the Hillary Clinton Presidential Campaign. Although only a temporary intern, Maass had access to Democracy Partners’ non-public information. Several times, she was invited to strategy calls between Democracy Partners, the DNC and the Clinton Campaign—during which future “bracketing” events were planned. She was allowed into the DNC building at one point, where she learned from a staffer that the DNC was planning to bus volunteers to upcoming bracketing events. On another day, Maass accompanied Democracy Partners staff to a closed-door meeting on polling strategy at the headquarters of the Communications Workers of America. Throughout her internship, Maass secretly recorded everything she saw and heard from a small camera attached to her shirt and sent Project Veritas daily reports of her observations. Maass abruptly left Democracy Partners in mid-October. Three days later, Project Veritas published the first of a three- part video series titled, “Rigging the Election.” Project Veritas Action, Rigging the Election - Video I: Clinton Campaign and DNC Incite Violence at Trump Rallies, https://www.youtube.com/watch?v=5IuJGHuIkzY  6 [https://perma.cc/TX73-LXAC] (YouTube, Oct. 17, 2016) (hereinafter Rigging the Election). The 16-minute piece opens with O’Keefe standing alone in a dimly lit room. “[T]here is a narrative,” he tells viewers, “that supporters at Trump rallies are violent and dangerous, looking to beat up protestors who don’t agree with them. But our undercover investigation into the Hillary Clinton Democratic Party machine reveals a very different story.” Id. at 2:03–2:18. “What you are about to see will make you uncomfortable and angry,” O’Keefe warns, “[i]t’s graphic[,] uncensored and disturbing. Our attorneys say there is strong evidence of criminality.” Id. at 00:57–1:08. 1 In the video, O’Keefe claims to have uncovered a “dark money conspiracy” to instigate violence at Trump rallies and other Republican-sponsored events. Id. at 4:50–4:54. The video implies that Foval, Creamer and Democracy Partners are implicated in the scheme. To set the stage, O’Keefe introduces Foval as AUFC’s national field director. Id. at 2:37–2:42. Creamer is portrayed as a powerful and connected political consultant, see id. at 4:00–4:10, and founder of Democracy Partners, “a private political consulting company with deep ties to Hillary Clinton, Barack Obama’s White House and the [DNC],” id. at 3:21–3:29. “Foval is Creamer’s attack dog,” O’Keefe claims in the video, “[he] and his people train . . . agitators to go to Trump rallies, and nothing is left to chance.” Id. at 7:08–7:19. The video then plays snippets of secretly recorded conversations 1 We describe what is seen and heard on the video merely to explain the record before us. The video’s allegations were never tested in court so we have no way of knowing whether they are accurate. Thus, nothing in our opinion should be taken as an endorsement of any of the accusations in the video or commentary pertaining to it.  7 between Foval and undercover reporters for Project Veritas. One conversation takes place at what appears to be a café. Over beverages, Foval tells the reporters that he has “a script of engagement” for staging altercations at the rallying events. Id. at 7:20–7:27. “The key is initiating the conflict . . . with people who are naturally psychotic,” he explains, “[h]onestly, it’s not hard to get some of these a[**]holes to pop off. It’s a matter of showing up . . . in a Planned Parenthood t-shirt. . . . You can message to draw them out, and draw them to punch you.” Id. at 7:47–8:20. “[W]e have mentally ill people that we pay to do sh[*]t, make no mistake,” Foval brags in another recorded conversation, “I’ve paid off a few homeless guys to do some crazy stuff.” Id. at 13:48–13:58. O’Keefe occasionally opines on Foval’s statements with narrative. “This Clinton dark machine is also prepared for the fallout from the violence they foment at the Trump rallies and other demonstrations,” he tells the audience at one point. Id. at 11:15–11:23. The segment then cuts to the recording of Foval at the café with the Project Veritas reporters: “[T]he one thing I’m never going to do,” Foval says, “is have some kid get punched out at a rally and then not have his doctor bill and his legal bill, if he gets arrested, paid for.” Id. at 11:23–11:32. O’Keefe then resumes, “Ultimately, the whole endeavor is to get negative press of Trump and his supporters in local and national media.” Id. at 11:32–11:39. The video then jumps to a clip of Foval talking to a Project Veritas journalist outside a restaurant: “It’s something that Bob [Creamer] and I obsess about,” Fovals states, “we’re not going to . . . do an event and not have anybody show up or not have it covered. We have to get coverage.” Id. at 11:39–11:50. “These guys have been doing their dirty tricks for some time,” O’Keefe comments, “even before Trump won the nomination.” Id. at 11:50–11:55. A clip is then shown of Foval’s conversation with Sandini at the Milwaukee bar. Foval asks Sandini if he heard of “the Iowa  8 state fair thing where [Governor] Scott Walker grabbed the sign out of the dude’s hand and then the dude gets kind of roughed up . . . right there on camera.” Id. at 12:04–12:15. “That was all us,” Foval reveals, “[t]he guy that got roughed up . . . works for Bob [Creamer].” Id. at 12:15–12:23. Several clips obtained from Maass’s secret camera are also used in the video. In one segment, Creamer gives Maass a brief rundown of Democracy Partners, the nature of its work and its clientele. Id. at 4:20–4:37. The conversation takes place in what appears to be his office. In another excerpt, Maass converses with a Democracy Partners staff member in the office hallway. “This guy is Aaron Black,” O’Keefe interjects, “he directs the spontaneous protests at Trump . . . events.” Id. at 9:17–9:26 (emphasis in original). “Nobody is really supposed to know about me,” Black chuckles in front of the camera. Id. at 9:31–9:33. All told, Maass’s infiltration footage accounts for only about two minutes of the video’s sixteen- minute duration. The fallout from the release of the Rigging the Election video was swift. Within days of the video’s publication, it was being reported “all over the news.” J.A. 538. AUFC fired Foval immediately. One of Creamer’s clients, the American Federation of State, County and Municipal Employees (AFSCME), also saw the video. That same day, AFSCME terminated its consulting and services agreements with Creamer’s firm, Strategic Consulting. AFSCME was also AUFC’s primary donor at the time and AFSCME’s then- president, Lee Saunders, served on AUFC’s board. After the video’s release, Saunders withdrew from the AUFC board and AFSCME revoked AUFC’s funding. With the loss of AFSCME’s financial support, AUFC could no longer operate and terminated its consulting agreement with Creamer.  9 B. Procedural Background Creamer, Democracy Partners and Strategic Consulting (collectively, Creamer) sued O’Keefe, Maass, Project Veritas and Project Veritas Action Fund (collectively, O’Keefe or the defendants) in federal district court under the court’s diversity and federal question jurisdiction. Creamer pressed three common law tort claims against Maass: fraudulent misrepresentation (for lying about her identity to get an internship at Democracy Partners), trespass (for gaining access to Democracy Partners’ office based on that lie), and breach of fiduciary duty (for secretly recording confidential discussions at Democracy Partners and relaying them to Project Veritas). Creamer also asserted a civil conspiracy claim against all of the defendants. And he asserted, against all of the defendants, claims of unlawful interception and disclosure of oral communications under the federal and D.C. wiretapping laws (the wiretapping claims). See 18 U.S.C. § 2511(1)(a)–(d); D.C. Code § 23-542(a). Creamer’s wiretapping claims asserted that Maass had secretly recorded her conversations with Democracy Partners staff for the “purpose” of breaching her fiduciary duty to Democracy Partners, triggering liability under the laws. 18 U.S.C. § 2511(1)(d); D.C. Code § 23-542(b)(3). For damages, Creamer sought the value of his lost contracts with ASFCME and AUFC. The district court granted O’Keefe summary judgment on Creamer’s trespass claim because Creamer could not prove exclusive possession of the office space used by Democracy Partners, and granted O’Keefe summary judgment on the breach of fiduciary duty claim because Democracy Partners could not prove it had suffered any damages as a result of Maass’s breach. Democracy Partners v. Project Veritas Action Fund, 453 F. Supp. 3d 261, 276–78, 283 (D.D.C. 2020). A five-day jury trial was held on the fraudulent misrepresentation  10 and wiretapping claims. At trial, Scott Frey—AFSCME’s then-government affairs director—explained why AFSCME decided to terminate its contracts with Creamer and cut financial ties with AUFC. Frey testified that the “major factor” in AFSCME’s decision, J.A. 594, was the “sense of scandal” and bad “optics” created by the Rigging the Election video, J.A. 543. Another “factor,” Frey testified, was that Creamer had unwittingly allowed an undercover journalist to infiltrate Democracy Partners’ office. J.A. 545. As for how AFSCME learned of the security breach, Frey stated that Creamer admitted to the oversight shortly after the video went public. But it was also “apparent that [the breach] had occurred,” J.A. 544, from the segments of the video showing Maass inside Democracy Partners, chatting with Creamer and his staff. After the close of evidence, O’Keefe moved for judgment as a matter of law on the fraudulent misrepresentation and wiretapping claims under Federal Rule of Civil Procedure 50(a). Defs.’ Mot. for J. as a Matter of L., Dkt. No. 179. With respect to the fraud claim, O’Keefe argued the First Amendment barred recovery because Frey’s testimony showed that the predominant cause of AFSCME’s contract cancellations and its revocation of AUFC’s funding was the protected content published in the Rigging the Election video. Id. at 11–12, 14–15. As for the wiretapping claims, O’Keefe argued the evidence failed to show that Maass was a fiduciary of Democracy Partners. Id. at 2–9. The district court deferred its ruling on O’Keefe’s motion and submitted the case to the jury, which found for Creamer on all claims. For the fraudulent misrepresentation claim, the jury awarded Creamer $120,000 in damages, representing the value of Creamer’s lost contracts with AFSCME and AUFC. On the wiretapping claims, the parties stipulated to $10,000 in statutory damages and the district court awarded Creamer this amount in a separate order.  11 The district court denied O’Keefe’s renewed motion for judgment as a matter of law and O’Keefe timely appealed. II. ANALYSIS “We review de novo a district court’s disposition of a motion for judgment as a matter of law, in the sense that we apply to the jury’s decision the same forgiving standard as did the district court.” Barbour v. Browner, 181 F.3d 1342, 1344 (D.C. Cir. 1999). Under this standard, we review the jury’s factual findings for clear error, Morrison v. Int’l Programs Consortium, Inc., 253 F.3d 5, 9 (D.C. Cir. 2001) (citations omitted), meaning “[t]he jury’s resolution of a factual dispute will stand if it is reasonably supported by the evidence,” Barbour, 181 F.3d at 1344–45. “Evidence supporting the verdict, however, must be more than merely colorable; it must be significantly probative.” Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001) (citation modified). Moreover, juries sometimes resolve questions that “require the application of a broad legal standard to particular facts.” Barbour, 181 F.3d at 1345. In the mine run of appeals, these “so-called ‘mixed questions of law and fact,’” id. (quoting Pullman–Standard v. Swint, 456 U.S. 273, 289 n. 19 (1982)), are not “deserving of specially probing review” and receive the same standard of review that applies to the jury’s resolution of pure fact issues, id. In rare cases, however, the mixed question may present “the risk of an erroneous trial level decision, or the need to clarify the governing law, or any other value secured by review de novo” significant enough to call for our independent review. Id. Mixed questions that arise in the First Amendment context is one such area where the Supreme Court has “repeatedly” recognized our duty of independent review. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984). The  12 most common example occurs if the jury finds the defendant liable under state tort law for something that he said. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (defamation); Snyder v. Phelps, 562 U.S. 443, 457 (2011) (intentional infliction of emotional distress); see also Miller v. California, 413 U.S. 15, 25 (1973) (criminal obscenity). The First Amendment “can serve as a defense” in such cases, Snyder, 562 U.S. at 451, and if the defendant preserves the argument that his speech was constitutionally protected, we have “an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression,” Bose Corp., 466 U.S. at 499 (citation modified). A related First Amendment concern arises if there is the risk that the jury based a damages award on the defendant’s protected speech. A jury can be called on to decide a defendant’s liability for unprotected “conduct [that] occur[red] in the context of constitutionally protected activity.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). In that case, “the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability.” Id. at 916–17. And if the defendant claims the jury’s verdict impermissibly “award[s] compensation for the consequences of [his] protected activity,” id. at 918, that claim “imposes a special obligation on this Court to examine critically the basis on which liability was imposed,” id. at 915. Here, the jury found the defendants liable for fraudulent misrepresentation based on the lies Maass told to secure an internship at Democracy Partners. Because O’Keefe does not argue Maass’s conduct was protected speech, we need not independently review the record to decide whether the jury’s finding complied with the First Amendment. O’Keefe does,  13 however, assert a First Amendment challenge to the jury award based on Creamer’s lost contracts with AFSCME and AUFC. In granting the award, the jury found that Maass’s infiltration of Democracy Partners caused AFSCME and AUFC to cancel their contracts with Creamer. According to O’Keefe, however, the contracts were cancelled because of the aftermath arising from the publication of the Rigging the Election video’s news story. We must therefore “carefully identify the impact of [Maass’s] unlawful conduct,” Claiborne, 458 U.S. at 933–34, to determine whether it is “constitutionally []adequate to support the damages judgment” in this case. Id. at 929. A. First Amendment Challenge The First Amendment question posed in this case is somewhat unusual. Ordinarily, if a civil defendant challenges an unfavorable verdict on First Amendment grounds, the issue is whether the jury impermissibly found the defendant liable for protected speech. See, e.g., Snyder, 562 U.S. at 451. But as mentioned, O’Keefe does not argue—understandably—that Creamer’s fraudulent misrepresentation claim fails because Maass had a First Amendment right to infiltrate Democracy Partners under false pretenses. Instead, he asserts that Creamer’s losses underlying the damages award for the fraud claim were proximately caused by the Rigging the Election video’s story that Creamer was part of a “dark money conspiracy” to deploy trained agitators to Republican rallying events. Rigging the Election at 4:50–4:55. And because the video’s contents are protected speech, O’Keefe maintains, the First Amendment bars the award unless Creamer satisfies the heightened burden of proof set forth in New York Times Co. v. Sullivan. Under that demanding standard—usually reserved for defamation suits—Creamer would have had to demonstrate that the content of the video’s was false and that O’Keefe published it with “actual malice.” New York Times, 376 U.S.  14 at 280. But it is undisputed that Creamer proved neither, O’Keefe continues, and thus the First Amendment bars recovery. We address first the extent to which the Rigging the Election video receives First Amendment protection under New York Times and move from there to the constitutionality of the damages award. 1. “The First Amendment has permitted restrictions upon the content of speech in a few limited areas”—defamatory speech being one example. Counterman v. Colorado, 600 U.S. 66, 73 (2023) (citation modified). Yet over the years the Supreme Court has “extended a measure of strategic protection to the defamatory falsehood,” to afford adequate “breathing space” for “speech that matters.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341–342 (1974). The first step in that direction was the New York Times Co. v. Sullivan decision, in which the Court held that, for a defamation action “brought by a public official against critics of his official conduct,” 376 U.S. at 268, the First Amendment prohibits recovery unless the plaintiff proves the defendant’s statement was false and made with “actual malice”—in other words, “with knowledge that it was false or with reckless disregard for whether it was false or not,” id. at 280. The Court has since extended New York Times to defamation actions brought by non-governmental public figures, Curtis Publishing Co. v. Butts, 388 U.S. 130, 154–55 (1967), and (to a lesser extent) actions brought by private plaintiffs if the defamatory speech relates to a matter of public concern, Gertz, 418 U.S. at 347. Creamer agrees that he is a limited public figure for the purpose of this action. Oral Arg. at 28:44–28:40; see Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1292  15 (D.C. Cir. 1980) (explaining a “limited-purpose public figure is an individual (who) voluntarily injects himself or is drawn into a particular public controversy”) (citation modified). And he concedes further that a public-figure plaintiff cannot avoid New York Times’s requirements by pleading an ostensible defamation claim through a non-defamation tort, including fraudulent misrepresentation. See Food Lion, Inc. v. Cap. Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir. 1999); Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995). But he insists that New York Times does not apply to a case in which the plaintiff’s “damages are strictly economic”—here, the “loss of contracts.” Appellees’ Br. 27. The district court agreed, adding that Creamer abandoned his claim for “reputational damage[s]” early in the litigation. Democracy Partners, LLC v. Project Veritas Action Fund, No. 17-1047, 2025 WL 1088090, at *4 (D.D.C. Apr. 11, 2025). This view has gained some traction in the district court of our Circuit—the idea that, in a non-defamation suit involving a publication, a plaintiff can avoid the strictures of New York Times by pleading so-called “non-reputational” damages, such as “lost jobs and diminished employment prospects.” Steele v. Isikoff, 130 F. Supp. 2d 23, 29 (D.D.C. 2000). This view, we conclude, is based on a misreading of the Supreme Court’s post-New York Times decision in Cohen v. Cowles Media Co., 501 U.S. 663 (1991). See Steele, 130 F. Supp. at 29 (reading Cohen as “divid[ing] claims against the news media by categorizing the damages sought”). In Cohen, the Court addressed whether to apply New York Times to a lawsuit that involved a legal interest markedly different from one’s reputational right. 501 U.S. at 668. The plaintiff there asserted a promissory estoppel claim against a newspaper for breaching a gentleman’s agreement not to publish his identity as a confidential source and sought damages in the form of lost earnings (he was fired after the  16 newspaper disclosed his name). Id. at 665–66. In rejecting the defendant’s argument that the action triggered heightened First Amendment scrutiny under New York Times, the Court reasoned that the plaintiff was “seeking damages [not] for injury to his reputation or his state of mind” caused by a publication, but simply to vindicate a broken promise. Id. at 671. We do not read Cohen to turn on the type of damages sought, as Creamer would have us hold. The Court declined to apply New York Times because Cohen’s “injury”—the violation of his contractual right to control the publication of his own name—was not reputational or anything close. Id.; see also Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977) (“[T]he right of the individual to [license his publicity has] little to do with protecting feelings or reputation.”). Compare Zacchini, 433 U.S. at 571–76 (declining to apply New York Times to a right-to-publicity claim arising from a broadcast of proprietary information), with Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 57 (1988) (applying New York Times to an emotional distress claim arising from a satirical publication). Creamer’s reading of Cohen “wrongly conflates legal injury with . . . damages.” WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407, 417 (2018). An “injury,” broadly stated, is “the invasion of any legally protected interest of another,” Restatement (Second) of Torts § 7(1) (1965)—damages represent any monetary loss that follows, WesternGeco, 585 U.S. at 417. That the damages in Cohen were economic did not bear on whether the plaintiff’s injury was reputational. Damages flowing from reputational injury can be “strictly economic” as well, Appellees’ Br. 27, such as “lost sales,” Food Lion, 194 F.3d at 522, or “return of the sums . . . paid” on a rescinded contract, Compuware Corp. v. Moody’s Invs. Servs., Inc., 499 F.3d 520, 530 (6th Cir. 2007); see also Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 457  17 (D.C. Cir. 1990) (“A plaintiff . . . may recover for pecuniary loss resulting from the defamation.”). Here, any injury that Creamer suffered from the publication of the Rigging the Election video’s news story was reputational, thus triggering New York Times. Creamer did not claim to have any contractual, see Cohen, 501 U.S. at 670–71, or proprietary rights regarding the video’s publication, see Zacchini, 433 U.S. at 573. As he concedes, the only conceivable injury flowing from the video’s story was its potential to make him “look bad.” Appellees’ Br. 27. Again, the video claimed that Creamer was a key player in a covert scheme to stir violence at Republican rallying events; all agree the video “suggested or implied that Mr. Creamer had done something illegal or wrongful.” J.A. 542. That is a reputational injury. See Injury to Reputation, Black’s Law Dictionary (12th ed. 2024) (“A diminution in any manner or degree of the esteem, goodwill, or confidence that people place in a person, firm, or company, etc.”); accord Crane, 894 F.2d at 457. Our First Amendment inquiry is not quite over. Even if the Rigging the Election video received some measure of protection under New York Times, Creamer correctly observes that the First Amendment does not necessarily shield every piece of information used in a publication. No matter how newsworthy the story, published information must always “have been lawfully acquired.” Cohen, 501 U.S. at 669. And this rule does not bend for the press. Id. Although the First Amendment does not require a journalist “to wear kid gloves,” Desnick, 44 F.3d at 1354, a press badge is not a license to break the law. Thus, members of the media “may not with impunity break and enter an office or dwelling to gather news.” Cohen, 501 U.S. at 669. They can be held liable for breaching a promise not to publish a source’s name, id. at 670–71, for  18 recording and broadcasting copyrighted material without permission, see Zacchini, 433 U.S. at 575, and for intercepting and disclosing a private conversation, see 18 U.S.C. § 2511(1)(a)–(c). When generally applicable laws operate in this manner to restrict the publication of truthful, newsworthy information, they “do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen, 501 U.S. at 669. Applying this principle, we agree with Creamer that the First Amendment does not protect the video segments that O’Keefe procured through Maass’s fraud—namely, the portions of the video that show Maass inside Democracy Partners, speaking with Creamer and his staff. Maass obtained that footage by subterfuge and the jury found that her conduct amounted to fraud. 2 In addition, this is not a case in which the “publisher of information has obtained [it] in a [lawful] manner . . . but from a source who has obtained it unlawfully.” Bartnicki v. Vopper, 532 U.S. 514, 528 (2001). Maass infiltrated Democracy Partners on assignment from O’Keefe; just as she had no First Amendment right to gather this footage, he had no First Amendment right to publish it. Nonetheless, as Creamer concedes, “[m]ost of the contents of the [Rigging the Election] video did not even include or rely on any of Maass’s recordings.” Appellees’ Br. 31. The crux of the video’s story came through the footage of secretly 2 It is generally true that for a lie to constitute fraud, tangible harm must follow. See United States v. Alvarez, 567 U.S. 709, 718– 19 (2012) (plurality opinion); Desnick, 44 F.3d at 1355. It is undisputed that Maass’s lies at least partly contributed to Creamer’s harm. Whether that was enough to entitle Creamer to the damages award, we address infra at II.A.2.  19 recorded conversations between Foval and undercover Project Veritas reporters. And as far as we know, “no established rights [were] invaded in the process of creating” those segments. Desnick, 44 F.3d at 1355. “There was no eavesdropping on a private conversation; the [Project Veritas reporters] recorded their own conversations with [Foval].” Id. at 1353. There was no trespass—all of the Foval conversations were held in public locations. There was no theft of confidential business information—everything that Foval said in these conversations, he said willingly. And although the defendants lured Foval into these meetings based on an elaborate web of lies, Creamer does not claim that conduct amounted to fraud. Where does this leave us? Most of the contents of the Rigging the Election video, we conclude, were protected under the First Amendment given the nature of this suit and how Creamer chose to pursue it. Creamer concedes he is a limited public figure who sued for damages that, all agree, stemmed directly from O’Keefe’s publication of the video. Because the vast share of the video’s contents was lawfully obtained—and any injury caused by this content was to Creamer’s reputation—the First Amendment prohibited Creamer from recovering damages “caused by [its] publication,” Hustler Mag., 485 U.S. at 50, unless he proved the contents were false and published with actual malice, New York Times, 376 U.S. at 279–80. Because Creamer has done neither, the First Amendment shields most of the video from liability and any harm its content caused falls “beyond the reach of a damages award.” Claiborne, 458 U.S. at 926. The same is not true for the few portions of the video depicting Maass’s secretly recorded conversations from within Democracy Partners. Because Maass’s infiltration footage is unprotected under the First Amendment, and because O’Keefe had no constitutional  20 right to publish it, any damages Creamer sustained because of Maass’s footage were recoverable. 2. We now turn to whether the jury’s damages award is consonant with the First Amendment. Because the damages were for the full value of Creamer’s lost contracts with AFSCME and AUFC, the constitutional validity of the award turns on what parts of the Rigging the Election video caused AFSCME and AUFC to cancel their contracts with Creamer. All agree that a contributing factor in AFSCME’s and AUFC’s decisions was the video’s scandalizing news story, as told through the constitutionally protected segments of the video. Democracy Partners, 453 F. Supp. 3d at 274. Nor do the parties dispute that a separate factor costing Creamer his contracts was the video’s publication of the footage that revealed Maass’s infiltration. In the ordinary case, this mixed record would likely hand Creamer the victory. Under our deferential standard of review in post-verdict appeals, an evidentiary wash is an evidentiary win for the plaintiff because we do not lightly second-guess a jury’s finding that his damages were caused by the defendant’s tortious conduct. See Barbour, 181 F.3d at 1344–45. But if, as here, it is undisputed the damages award is partly attributable to the defendant’s protected speech, “precision” of proof is demanded. Claiborne, 458 U.S. at 916 (citation modified). This principle was best put to practice in NAACP v. Claiborne Hardware. There, a group of merchants sued the organizers of a civil rights boycott via multiple tort claims, seeking to recover all of the business losses they sustained over a seven-year period due to the boycott’s success. Id. at 889– 93. Much of the boycott’s success, however, resulted from peaceful picketing, demonstrations and speeches—all  21 “activities ordinarily safeguarded by the First Amendment.” Id. at 909. In granting the merchants full recovery, the state court “relied on isolated acts of violence” that occurred during the boycott’s earlier stages. Id. at 924. The question in Claiborne was whether the violent incidents that punctuated the otherwise protected boycott were sufficient, constitutionally, to support the full award. Id. at 888–89. The Supreme Court reversed the damages award. Because protected speech furthered the boycott’s success, the Court reasoned, the First Amendment “impose[d] restraints,” id. at 916, on the power of the state court to award damages for the violent elements of the boycott: “Only those losses proximately caused by unlawful conduct [could] be recovered,” id. at 918. Applying that standard, the Court found the evidence could not constitutionally sustain the full award. Id. at 921. The Court distinguished the handful of violent acts in Claiborne with the “pervasive” violence that occurred in Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287 (1941), a First Amendment case in which the Court upheld an “injunction against both violent and nonviolent [picketing] activity.” Claiborne, 458 U.S. at 923. Those “special facts” were not present in Claiborne, id. at 923 n.64 (citation modified), because although violence “formed part of the boycott activity and contributed to” the merchant’s losses, id. at 921 (citation modified), the evidence did not show the boycott “succeeded solely through fear and intimidation,” id. at 922 (emphasis added). We think the lesson of Claiborne is clear: If it is uncontested that protected speech contributed to a damages award, the First Amendment imposes a heightened standard of proof on the plaintiff to show the defendant’s unprotected conduct was the proximate cause of his losses. Id. at 934 (“The burden of demonstrating that fear rather than protected conduct  22 was the dominant force in the movement is heavy.”). The standard is “not satisfied by evidence that [unprotected conduct] occurred or even that [it] contributed to” the plaintiff’s damages.