SAN FRANCISCO (CN) - Arguing that "smear" videos made abortion clinics targets of crime and threats, a lawyer urged a federal judge Wednesday to make those who helped create the "selectively edited" videos pay for Planned Parenthood's increased security costs.
"Their argument is 'We didn't break anything.' We say, ‘Oh yes, you broke the sense of security that all our staff have in going to work every day and attending conferences," Planned Parenthood attorney Amy Bombse, of Rogers Joseph O'Donnell in San Francisco, said.
Bombse made her case during a 2.5-hour hearing on dueling motions for summary judgment in a lawsuit seeking damages and injunctive relief against anti-abortion activist David Daleiden and his group, the Center for Medical Progress. Daleiden and his codefendants posed as a fake biomedical company to gain access to abortion providers' conferences and meetings in 2014 and 2015. They secretly recorded conversations and then released videos that a federal judge called "deceptively edited."
Bombse said the videos caused a spike in threats and crimes against Planned Parenthood clinics across the nation, including a 2015 shooting in Colorado Springs that killed three people and wounded nine others. The shooter, Robert Dear, called himself a "warrior for the babies."
"David Daleiden and his co-conspirators created a situation where Robert Dear or somebody like him was more likely," Bombse insisted.
Representing the defendants, attorney Catherine Short said U.S. District Judge William Orrick made the right call when he released a tentative ruling Tuesday stating his intention to exclude claims for damages based on "third parties’ reactions to the release of the video recordings." The First Amendment bars seeking damages for speech-related activity absent a defamation claim, Orrick said.
Short, of Life Legal Defense Foundation in Ojai, California, cited Planned Parenthood's demand to recover the cost of enhanced window enclosures at clinics as one example of an expense unrelated to the defendants' alleged conduct.
"It wouldn't seem there was any causal connection between defendants pretending to be a tissue procurement company and them putting in physical security enhancements like that," Short said.
Earlier this week, lead defense attorney Peter Breen, of the Thomas More Society in Chicago, released a statement saying Planned Parenthood should not recover a dime from Daleiden and his group because they were acting as undercover journalists. Their crusade to expose the "illegal and unethical" sale of fetal tissue for profit is protected by the First Amendment, Breen argued.
“In an era where cries to defund Planned Parenthood have rung out across America, the abortion merchandiser is trying to extract its alleged millions in losses from undercover journalists publishing the truth," Breen said.
Planned Parenthood was never prosecuted for illegal activity related to the sale of fetal tissue. Abortion providers are not allowed to profit from donating fetal tissue for research, but they can recover costs related to collecting tissue and facilitating the donation.
Orrick reviewed hundreds of hours of videos in a separate case and found no evidence of criminal wrongdoing. The judge concluded that Daleiden’s group misleadingly edited videos to make it appear as though abortion providers were breaking the law.
Daleiden’s attorneys dispute that, citing investigations by Republican-led congressional committees that found his group’s investigation “generally had merit,” and a $7.7 million settlement two bioscience companies reached with the Orange County District Attorney’s Office in December 2017 for allegedly selling fetal tissue for profit.
Planned Parenthood asked Orrick to rule against Daleiden's "unclean hands defense" because the legality of its fetal tissue donation program is "completely unrelated" to claims that the defendants conspired to commit fraud, invade people's privacy and breach signed confidentiality agreements.
After two and a half hours of debate, Orrick told both sides to assume he will stick with his tentative ruling as they prepare for trial.
In that tentative decision, Orrick said he was inclined to bar Daleiden's "unclean hands defense" at trial, but he refused to rule out other lines of defense related to claims that Daleiden was working as an undercover journalist to expose criminal wrongdoing.
A jury trial in the case is set to begin Sept. 30.
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