SAN FRANCISCO (CN) — A federal judge said on Monday afternoon that David Daleiden likely did not violate the permanent injunction blocking him from releasing surreptitious footage of National Abortion Federation meetings when he republished that footage on his social media accounts after a congressional hearing last month.
Senior U.S. District Judge William Orrick did not issue a ruling in the case, but he said he was reluctantly leaning toward Daleiden’s interpretation that he was allowed to repost clips of the nearly decade-old footage because it came from a public congressional hearing.
In 2014 and 2015, Daleiden and fellow activist Sandra Merrit posed as human tissue procurers for a fake company called BioMax to infiltrate conferences hosted by the National Abortion Federation, a nonprofit representing abortion providers. As exhibitors, they got an inside look at the private events, where they secretly recorded conversations they later posted online.
In 2015, the federation and Planned Parenthood each separately sued Daleiden and his company, the Center for Medical Progress, accusing him of trespassing, fraud and breach of contract.
The Planned Parenthood suit went to trial and ended in a $2 million jury verdict. The National Abortion Federation suit ended in a permanent injunction preventing Daleiden from publishing any materials related to the federation meetings in 2014 and 2015.
In March 2024, Daleiden appeared at a congressional hearing with Georgia Representative Marjorie Taylor Greene where she displayed edited clips from the footage illegally obtained by Daleiden and his associates during the 2014 and/or 2015 federation meetings.
At the hearing, the clips were edited in most cases to obscure the faces of those depicted in the footage and the abortion providers were not named. During the hearing, Daleiden provided additional information that he claimed to have learned at the 2014 and 2015 meetings that he infiltrated.
Two days later, Daleiden published the information from the congressional hearings on his website and social media accounts, and identified the abortion providers in the footage by name. The federation claimed that the publication of the footage violated the permanent injunction and put its workers in grave danger, but Daleiden’s legal team claimed that Daleiden did not violate the injunction because he was only posting footage from a public congressional hearing.
On Monday afternoon, Orrick said he was troubled by Daleiden’s conduct but he was not sure if he had the authority to stop Daleiden from publishing footage from public proceedings.
“I remain concerned about the personal safety issues that I’ve expressed throughout this litigation, and I don’t think time has assuaged my concern with respect to that. That said, I’m not aware of any control or authority that I have with respect to congressional conduct,” Orrick said.
Orrick noted that Congress has the right to investigate in public and he was wary of violating Daleiden’s First Amendment rights to free speech if he enforced the permanent injunction in this circumstance.
Orrick said he would allow for the redaction of the names of the abortion providers in court documents out of fear for their safety but he could not tell Daleiden to take down the identifying info elsewhere.
“I don’t believe I can stop Mr. Daleiden from identifying them because he has obtained the information about who those folks were independently of the videos and the circumstances that resulted in the permanent injunction in the first place,” Orrick said.
Christina Dierolf, counsel for the federation, said that Daleiden “took it a step further” when he published the clips after the hearing and identified the abortion providers, conduct that she said falls outside of the scope of the congressional hearing.
“The permanent injunction prevents him from publishing those clips, publishing information that was obtained at those meetings, regardless of the source of that information,” Dierolf argued.
Orrick asked her if she had any authority backing up her claims that barring re-publication of testimony at a public congressional hearing did not violate the First Amendment.
Dierolf said she did not have any cases on hand with her, but said that Daleiden clearly signed away his First Amendment rights when he signed a contract with the federation when he infiltrated the nonprofit nearly a decade ago. Orrick gave Dierolf one week to bring him any cases that were similar.
Daleiden’s attorney, Mark Meuser spoke only briefly and said, “We believe that the court properly analyzed the issues. We will wait for any subsequent filing by the other side and respond as necessary.”
Orrick warned Meuser, however, to tell Daleiden that this does not give Daleiden the authority to publish other federation info that was not shown at the congressional hearing. Meuser replied that he would make that clear to Daleiden.
Orrick also said he would like a warning in the future if Daleiden wants to publish information.
“It is far better, particularly in this case, if the defendant would seek authority or permission or provide notice or do something ahead of having fire drills as we did in this case,” Orrick said.
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