SAN FRANCISCO (CN) – After two years of legal wrangling, a California judge will soon decide if there is enough evidence to try two anti-abortion activists who surreptitiously recorded Planned Parenthood staff supposedly arranging the sale of aborted fetal tissue, in a case some fear will hamstring journalists who go undercover to expose wrongdoing.
In 2017, state prosecutors charged Center for Medical Progress (CMP) activists David Daleiden and Sandra Merritt with 15 felony counts each of invasion of privacy over the covert recordings, which they shot at abortion-industry conferences and restaurants by posing as employees of a fake fetal-tissue procurement company. The pair then posted the videos online.
Planned Parenthood contends the footage was heavily edited to dupe viewers into believing it traffics in tissue obtained from late-term abortions, touching off a wave of violence by anti-abortion activists that culminated in the 2015 murder of three people at a Planned Parenthood clinic in Colorado Springs.
The pair’s attorneys and state prosecutors will finally square off in San Francisco County Superior Court on April 22, where for two weeks they will present evidence gathered so far to Judge Christopher Hite who will decide if a trial is warranted. None of the parties’ attorneys returned requests for comment on this story.
The case involves thorny questions over what journalists can and can’t legally do when conducting investigations in California, a tug-of-war between their First Amendment right to gather newsworthy information in the public interest and the right of Californians to be told they are being recorded. Experts predict Daleiden and Merritt will be convicted; an appeal of the conviction will help set precedent on these questions.
First Amendment attorney Matthew Strugar predicted a liberal San Francisco jury will convict Daleiden and Merritt even if the evidence comes out in their favor – greenlighting judges to chip away at the investigative tools available to journalists.
“CMP to me are despicable actors who seem to be grossly misstating what happened,” Strugar, who is not affiliated with the case, said by phone from Los Angeles. But he said the group’s undercover methods “are tried-and-true investigative techniques” long used by journalists in the United States to gather evidence of misconduct, from animal abuse on farms to auto mechanics ripping off customers.
“You’ve got to fight for the rule and the principle, even if you think the people doing it are scum,” Strugar said.
Daleiden and Merritt have cast the case as a First Amendment struggle, accusing the California Attorney General’s office in February of prosecuting them to suppress their free-speech rights.
But both a federal judge and the Ninth Circuit rejected similar arguments in a civil suit Planned Parenthood filed against the pair and its group in 2016, increasing the likelihood that Judge Hite and a jury will do the same.
“My guess is he’s probably going to be screwed,” Strugar said of Daleiden, adding neither a judge nor a jury would be “too brokenhearted about bending the rules” to punish such “politically unpopular” defendants.
“The rules” involve whether the people Daleiden and Merritt recorded had a “reasonable expectation” the conversations were private, even though they were recorded in semi-public places.
According to criminal defense and First Amendment attorney Greg Lipper, a reasonable expectation of privacy depends on the setting and the circumstances. A conversation in one’s bedroom confers a reasonable expectation of privacy, Lipper, of Clinton & Peed in Washington, said, while one in the middle of the street likely does not.
Semi-public places, like industry conferences and restaurants, however, occupy a murky middle ground.
“The more public it gets, the less reasonable expectation there is,” Lipper said by phone, forcing courts to consider additional factors to make a decision. For example, although there may have been hundreds of people within earshot of Daleiden and Merritt at the abortion conferences they attended, “closed, limited attendance-type conferences” are probably not public enough to override California’s eavesdropping law.
“The fact that they needed to lie their way into the conferences suggests they understood they wouldn’t be welcomed there under normal circumstances, and that this is not the same as the public square,” Lipper said. “[I]t does reinforce the reasonable expectation of privacy of the people there.”
California case law on privacy in restaurants is murkier still. An example is Safari Club International v. Rudolph, a lawsuit kept alive by the Ninth Circuit in 2017. In that case, former Safari Club president Lawrence Rudolph sought to strike the club’s invasion-of-privacy claim against him stemming from a restaurant conversation with then-Safari Club president John Whipple, which Rudolph recorded and then posted to YouTube to exonerate himself in a separate suit.
Rudolph told the Ninth Circuit the restaurant was a public setting and Whipple had no reasonable expectation of privacy there, an argument Daleiden and Merritt also make. While the panel agreed, it held a jury could find the conversation was recorded without Whipple’s consent and “in circumstances under which Whipple reasonably could expect his statements would not be overheard.” The case was settled in 2018.
There are no bright-line rules for courts to assess whether a person in a semi-public place has a reasonable expectation of privacy, such as a set distance a waiter or other diners must be from a table in a restaurant. But for Strugar, the case law including Safari supports the idea that a person within earshot of a conversation means no reasonable expectation of privacy. Nonetheless, he said, courts still review privacy cases under a “squishy standard” they are reluctant to define.
“They want to be able to change their minds depending on what side of the question these judges are on,” Strugar said, adding judicial progressives consider bright-line rules too reactionary to implement.
Lipper suggested courts could fashion a “newsworthiness” exception to eavesdropping laws in two-party consent states like California, such that a reasonable expectation of privacy wouldn’t extend to a semi-public place like a restaurant if the information collected is newsworthy and in the public interest.
But he doubted the outcome in the CMP case will impede journalists.
“The First Amendment has never given journalists the right to commit crimes to get the story,” Lipper, who is not affiliated with the case, said. “Concerns about journalism may inform where the lines are, how broadly or narrowly the statutes are interpreted. But at the end of the day, there’s some core activity that’s illegal, and just because you’re wearing your journalism hat doesn’t mean you can commit fraud or break into someone’s house.”
Both attorneys predicted an uphill battle for Daleiden and Merritt. Lipper surmised lying to gain access to conferences and the possible doctoring of the recordings will weaken their argument that they were providing a public service. Strugar worried the two will be convicted based on conservative ideology no matter what the videos reveal, opening a Pandora’s box of attacks on free speech that will be difficult to close again.
“This has all the trappings of a case set to make terrible law,” Strugar wrote in a recent tweet. “Courts love to screw up those cases.”