SAN FRANCISCO (CN) – The Ninth Circuit on Wednesday upheld a federal judge’s injunction blocking the publication of secretly taped anti-abortion videos.
The National Abortion Federation, an abortion providers’ trade group, sued anti-abortion activist David Daleiden and his group, the Center for Medical Progress, in July 2015, claiming they posed as a fake biomedical company to infiltrate and secretly record its meetings in violation of signed confidentiality agreements.
In February 2016, U.S. District Judge William Orrick III issued an injunction barring publication of the secret recordings, finding the safety and privacy of the federation’s members outweighs the center’s First Amendment right to disclose information obtained under false pretenses.
A panel of Ninth Circuit judges found Wednesday that Orrick “did not clearly err” in finding the anti-abortion activists waived their First Amendment rights when they signed secrecy agreements to gain access to the meetings.
In a statement issued Wednesday, the center called the injunction an attack on the First Amendment and constitutional separation of powers, saying the videos are “unquestionably information the public is entitled to.”
One member of the three-judge panel disagreed with part of the injunction that bars the center from turning over videos to law enforcement without a subpoena.
Orrick’s injunction requires Daleiden and the center to inform the federation when it receives a subpoena seeking the recordings so the federation can challenge such subpoenas in court.
“The injunction against defendants sharing information with law enforcement agencies should be vacated because the public policy in favor of allowing citizens to report matters to law enforcement agencies outweighs NAF’s right to enforce a contract,” Circuit Judge Consuelo Maria Callahan wrote in her dissent.
The two other panel members – Circuit Judge Andrew Hurwitz and visiting U.S. District Judge Donald Molloy of Montana – found the injunction places “no direct restriction” on law enforcement, but rather bars the center from disclosing information without a subpoena.
In issuing the injunction, Orrick said he reviewed hundreds of hours of recordings and found no evidence that abortion providers agreed to illegally sell fetal tissue for profit as the center claimed, despite a targeted effort to illicit such responses.
“Given the district court’s finding, which is supported by substantial evidence, that the tapes contain no evidence of criminal activity, and its recognition of several states’ ongoing ‘formal efforts to secure the NAF recordings,’ the preliminary injunction carefully balances the interests of NAF and law enforcement,” Hurwitz and Molloy wrote in their affirming opinion.
The federation’s attorney, Derek Foran of Morrison & Foerster, said he believes the circuit judges “got it right” and properly balanced his client’s right to privacy with the rights of law enforcement to conduct investigations.
“We’re not seeking to interfere in anyone’s investigation,” Foran said. “We’re simply seeking to preserve our client’s legal rights. That’s all we’ve ever wanted to do.”
Subpoenas for the secret recordings issued by Arizona and Louisiana were put on hold while the injunction was appealed, Foran said.
He added the federation still has concerns about videos being leaked to the public, given that three people were murdered at a Colorado Springs abortion clinic in November 2015 after videos turned over to Congress were leaked and published online.
In a statement issued Wednesday, the center described the videos as “key evidence” in the charges and defense of Daleiden and Sandra Merritt. The pair was charged with 15 felonies in California on Tuesday for secretly recording 14 people affiliated with Planned Parenthood.
“CMP will continue to fight this unconstitutional abuse of power and vindicate our First Amendment rights and those of all citizen journalists to speak and publish on matters of urgent public concern,” the center said.
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