SAN FRANCISCO (CN) – The Ninth Circuit on Friday gave little indication whether it would advance the bulk of Planned Parenthood's lawsuit accusing anti-abortion activists of interfering with access to abortion, or shrink the scope of claims the activists face over doctored videos purporting to show the reproductive health organization selling aborted fetal tissue.
The only hint of how the appeals court's three-judge panel may rule came from Circuit Judge Mary Murguia, who noted the California free speech law under which anti-abortion group Center for Medical Progress, its founder David Daleidan and his colleague Sandra Merritt seek to strike Planned Parenthood's 13 state claims may conflict with federal procedure, and that there is no standard for applying it.
Murguia's observation dovetailed with Planned Parenthood's argument that federal rules trump state law when conflicts arise.
"Courts are struggling with this," Murguia said.
Planned Parenthood sued Daleidan and Merritt last year, claiming it lost millions of dollars and endangered the safety of its doctors and patients after the pair set up a fake fetal tissue procurement company called BioMax to infiltrate abortion conferences and secretly record videos of themselves trying to buy fetal tissue from Planned Parenthood doctors.
The organization says the defendants edited the videos to create the impression Planned Parenthood sells the tissue. The videos led to a near-shutdown of Planned Parenthood in 2015, after GOP lawmakers threatened to pull its funding.
Planned Parenthood also says the videos caused a dramatic increase in threats, harassment and vandalism against abortion providers, culminating in a November 2015 shooting at a clinic in Colorado Springs.
Daleidan and Merritt separately moved to dismiss the suit and strike 13 state claims of fraud, trespass, invasion of privacy, nonconsensual taping and contract under California's anti-SLAPP statute. An acronym for "strategic lawsuit against public participation," anti-SLAPP laws are meant to curtail frivolous or malicious lawsuits with the potential to chill free speech.
The pair insist their activities as "investigative journalists" – which included using fake driver's licenses to gain access to the conferences – are protected by the First Amendment. They said Planned Parenthood failed to adequately plead its claims or marshal enough evidence under that law to support them.
But U.S. District Judge William Orrick III of San Francisco tossed all four motions last year, ruling that although the defendants had raised "serious arguments" regarding some of the claims, Planned Parenthood had pleaded them sufficiently.
On Friday, Daleiden's attorney Charles LiMandri of Freedom of Conscience Defense Fund urged the panel to reverse Orrick's denial of the anti-SLAPP motions, arguing the judge had shifted responsibility of proving the claims would fail to Daleiden. If the defendants prevail on appeal, they will face just two federal claims of racketeering and wiretapping.
Addressing Murguia's concern, LiMandri added Planned Parenthood could have remedied a conflict between state law and federal procedure by asking Orrick for discovery to bolster its claims.
"The plaintiffs are asking this panel to be the first court I'm aware of that would hold that the plaintiff does not have the burden of production and the defendant does," he said. "That is simply not how the statute and controlling authority reads."
Planned Parenthood attorney Amy Bomsy with Arnold & Porter said the Ninth Circuit hasn't addressed which party is responsible for producing evidence if an anti-SLAPP motion is limited to pleading deficiencies. But she noted the court had held in 2001's Metabolife Int’l v. Wornick and in an unpublished 2012 decision in Z.F. v. Ripon Unified School District the anti-SLAPP statute applies only when it doesn't clash with the federal rules.
"The district court's ruling was certainly not peculiar or novel," she said. "Indeed, it's the standard that numerous district courts have been applying in the last 18 years since the Rogers decision," referencing Rogers. v. Home Shopping Network, Inc., a libel suit decided in the Central District of California in 1999.
Planned Parenthood wants an injunction barring the defendants from entering its conferences and clinics without disclosing their true identities and recording private conversations with its staff without their consent. In March, a different Ninth Circuit panel upheld Orrick's injunction in a nearly identical lawsuit brought by the National Abortion Federation, an abortion providers' trade group, blocking the publication of videos the defendants filmed at its annual meeting.
In that case, Orrick ruled the pair waived their First Amendment rights when they signed confidentiality agreements to enter the meeting, an argument also made by Planned Parenthood. Orrick said he had found no evidence – after reviewing hundreds of hours of recordings – that abortion providers had agreed to sell fetal tissue.
Also in March, California prosecutors charged Daleiden and Merritt in San Francisco with 15 felony counts of conspiracy and invasion of privacy for surreptitiously recording more than a dozen people affiliated with Planned Parenthood.
Daleiden acknowledged creating fake driver's licenses and business cards to enter the conferences by using a stolen email password to access the confidential documents of a real medical company called StemExpress, according to an affidavit filed in the case.
He and Merritt used the materials to pose as exhibitors at conferences organized by the National Abortion Federation, according to the affidavit. They secretly recorded speakers and attendees, and set up supposedly private meetings at restaurants to record conversations with doctors and clinicians.
The pair were indicted in Texas on similar charges in January 2016. That case was later dropped.
Circuit Judge Ronald Gould and Chief U.S. District Judge Nancy Freudenthal, sitting by designation from the District of Wyoming, joined Murguia on the panel.
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