Injunction Against Release of Anti-Abortion Group’s Edited Videos Stands

SAN FRANCISCO (CN) — Rejecting arguments that a court order is crippling David Daleiden’s criminal defense, a federal judge Wednesday refused to lift an injunction banning the release of secretly taped videos of a National Abortion Federation meeting.

Attorneys for Daleiden, founder of the anti-abortion group Center for Medical Progress, told U.S. District Judge William Orrick III that his injunction is hindering Daleiden’s ability to defend himself against 15 state felony charges for conspiracy and invasion of privacy.

“When you have felony charges against your client, you have to be able to use everything for your client,” Daleiden’s attorney Peter Breen, with the Thomas Moore Society, told Orrick in court.

Orrick rejected that argument, finding the state court judge can admit parts of the enjoined videos as evidence if he deems it necessary in the interest of fairness and justice.

“If Judge [Christopher] Hite finds that some of the preliminary injunction material should be released, I’m not going to interfere with that, in order to protect the Fifth Amendment rights of Mr. Daleiden,” Orrick said.

Orrick banned release of videos in February 2016, finding it necessary to protect National Abortion Federation members from threats and harassment, and to enforce confidentiality agreements Daleiden and others signed while using fake aliases to infiltrate the group’s meetings.

Daleiden and his co-defendants claims their deception was an act of investigative journalism aimed at exposing criminal misconduct by abortion providers, whom they accused of illegally selling fetal tissue for profit.

But Orrick said he reviewed hundreds of hours of videos and found no evidence of criminal wrongdoing. Orrick concluded that Daleiden’s group had 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.

Daleiden and his co-defendants also asked Orrick to dismiss the National Abortion Federation’s complaint, or to strike allegations under California’s Anti-SLAPP statute, which prohibits lawsuits designed to chill free speech.

Orrick said the issues raised in that motion are similar to those in a separate case, Planned Parenthood v. Center for Medical Progress, in which the Ninth Circuit affirmed Orrick’s refusal to strike claims against the defendants in May.
Nonetheless, a defense attorney argued that the case should be dismissed because the federation is not one of the aggrieved parties in this litigation.

“The harm they refer to from disclosure of these videos all affect NAF members, not NAF,” defense attorney Paul Jonna, with the Law Offices of Charles LiMandri, argued.

The federation says it seeks damages caused by “defendants’ fraud, breach of contract, and illegal conspiracy,” not for reputational harm caused by the disclosure of videos.

Orrick asked Jonna: “With reputational damages excised, you don’t think that’s sufficient to establish jurisdiction?”

Jonna replied by citing numerous statements in which the federation said it had sued to protect its members’ reputations.

Citing the 1999 Fourth Circuit ruling in Food Lion v. Capital Cities/ABC, Jonna argued that because the federation did not sue for defamation, Orrick must assume the center’s allegations about the abortion providers are true.

In Food Lion, the Fourth Circuit found that with no claim for defamation, it was reasonable to conclude that Food Lion’s reputational harm resulted from statements made by its own employees about unsafe and unhealthy meat handling practices, not by the investigative journalists who lied to get jobs at the store.

Jonna said that Orrick should apply that same logic to this case. “You could say it was the NAF members’ statements themselves that caused the loss of reputation,” Jonna said.

Orrick did not appear swayed by the defendants’ arguments. Noting that many of those arguments already have been presented and rejected, Orrick quoted Yogi Berra: “It’s deja vu all over again.”

The Ninth Circuit in September heard oral arguments on the appeal of a nearly $200,000 contempt fine Orrick imposed on Daleiden and his attorneys for violating the injunction.

Orrick said he would issue  a written ruling on the defendants’ motions to dissolve or modify the injunction and to dismiss or strike the complaint in a few weeks. He set a case management conference for Dec. 11.

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