SACRAMENTO (CN) — Controversy surrounding secretly recorded videos showing Planned Parenthood employees discussing fetal tissue sales has morphed into a California proposal that would punish media companies for reporting on certain undercover videos. But media groups say the bill, which is on the verge of clearing the Legislature, could have a "chilling effect" on free speech and set the state up for First Amendment court battles.
Born from the 2015 hidden-camera footage released by the anti-abortion Center for Medical Progress, Planned Parenthood is pushing Assembly Bill 1671 which it claims will protect abortion clinics and other health care providers from similar malicious sting operations.
The bill would criminalize publishing undercover video footage of "health care providers" and subject third parties, including journalists, to penalties for reporting and distributing the illegally recorded footage.
Under AB 1671, a journalist receiving and posting footage from an anonymous source could be punished by the state as well as be opened up to potential civil lawsuits. Whistleblowers would not be exempt from the proposal either, regardless of how they obtained the illegal footage.
First-time offenders could be fined up to $2,500 while repeat offenders could face up to a year in prison.
Led by Assemblyman Jimmy Gomez, D-Los Angeles, the "Planned Parenthood" bill must hurdle the state Senate by an Aug. 31 legislative deadline.
Gomez's office declined to speak with Courthouse News regarding AB 1671 and instead referred requests to the bill's sponsor Planned Parenthood.
Opponents of the bill agree that while the undercover Planned Parenthood videos were unethical and underhanded, AB 1671 could do more damage by preventing journalists from obtaining and reporting on issues of public interest.
A combination of media, civil rights groups and state Republicans are leading the fight against the proposal they say will weaken the First Amendment.
Nikki Moore, legal counsel for the California Newspaper Publishers Association, said the bill creates a dangerous liability for the distribution of footage and could unintentionally punish more people than intended. She said the publishers association has been working with Planned Parenthood since March to narrow the bill, but that the series of amendments have not gone far enough.
"The scenario that [Planned Parenthood] is trying to prevent is a very specific one," Moore said. "We've been trying to help them find a way to accomplish their goals while not infringing on the First Amendment or creating liabilities for media."
It is already illegal in California to record a private conversation without the consent of both parties, in person or on the phone.
"Existing law makes it a crime, subject to specified exemptions, for a person to intentionally eavesdrop upon or record a confidential communication by means of an electronic amplifying or recording device without the consent of all parties to the confidential communication," Government Code section 632 states.
Legal precedent exists regarding the publication of illegally recorded footage. In the 2001 U.S. Supreme Court case Bartnicki v. Vopper, the high court ruled that the First Amendment protects speech that was illegally intercepted as long as the party didn't participate in the recording.