1st amendment doesn’t protect anti-abortion activists who recorded Planned Parenthood, 9th Circ says

In an opinion published Friday by Ninth Circuit Judge Ronald Gould said, “Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society.”

After secretly recording Planned Parenthood meetings for a year and a half, a group of anti-abortion activists in Northern California have been charged with fraud and conspiracy, and the First Amendment doesn’t protect them in this case, an appellate judge ruled.

In an opinion published Friday, Ninth Circuit Judge Ronald Gould said, “Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society.”

David Daleiden, a well-known anti-abortion activist who started the Center for Medical Progress, and several others started an undercover operation in 2013 with the goal of infiltrating organizations, especially Planned Parenthood, involved in procuring fetal tissue to expose alleged wrongdoing, according to the opinion. 

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To do so, they pretended to be a fetal tissue procurement company called BioMax. Daleiden acquired fake drivers’ licenses for those who ran the fake company and published a “smear campaign” when they released the videos on the CMP website in 2015, according to court documents.

As a result of publishing the videos, those shown on the footage received a variety of threats and Planned Parenthood provided body guards to protect the individuals, as well as relocated one of them and their families. Planned Parenthood sued Daleiden and his accomplices in 2016 and a jury later awarded Planned Parenthood $2.4 million. 

But Daleiden appealed the decision in 2020. And according to a statement from the CMP website Daleiden says he’ll continue to appeal “until the constitutional rights of reporters and the public prevail.”

Although the appellate court sided with Planned Parenthood and affirmed the district court’s decision, the court did reverse part of the ruling. The district court had ruled that Daleiden and his crew of violated the Federal Wiretap Act. The Act says that a person may record a conversation he or she is a part of unless there is criminal intent. The appellate court said that Planned Parenthood did not provide enough evidence to show there was criminal intent, according to the opinion. 

The original award of $2.4 million will be reduced by $90,000 as a result. 

The appellate court judge further emphasized in his opinion that investigative journalism is an important part of society and this decision should not impede that, but instead “we simply reaffirm the established principle that the pursuit of journalism does not give a license to break laws of general applicability.” 

“From the beginning of their scheme, appellants engaged in illegal conduct—including forging signatures, creating and procuring fake driver’s licenses, and breaching contracts—that the jury found so objectionable as to award Planned Parenthood punitive damages,” U.S. Judge Gould wrote.

Planned Parenthood vice president of Public Policy Litigation and Law said in a news release, “This was never about monetary gain; this was about exposing the fraudulent and illegal actions of Daleiden and those who conspired with him, and ensuring that Planned Parenthood providers are able to continue serving the 2.1 million patients who rely on them for high-quality health care every year.”

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