U.S. District Judge William H. Orrick last year temporarily restrained the Center for Medical Progress and its founder David Daleiden from publishing videos taken secretly at NAF annual meetings.
“NAF alleged, and it has turned out to be true, that defendants secured false identification and set up a phony corporation to obtain surreptitious recordings in violation of agreements they had signed that acknowledge that the NAF information is confidential and agreed that they could be enjoined in the event of a breach. In light of those facts, because the subjects of videos that defendants had released in the previous two weeks had become victims of death threats and severe harassment, and in light of the well-documented history of violence against abortion providers, I issued the TRO,” Orrick wrote in his Feb. 5 ruling.
Daleiden and the CMP fought the order as an unconstitutional restraint of speech.
Orrick cited several facts to reject that argument.
“Critical to my decision are that the defendants agreed to injunctive relief if they breached the agreements and that, after the release of defendants’ first set of Human Capital Project videos and related information in July 2015, there has been a documented, dramatic increase in the volume and extent of threats to and harassment of NAF and its members.”
Orrick found the need to enforce confidentiality agreements and protect the safety and privacy of NAF members outweighs the CMP’s First Amendment right to disclose the information it obtained under false pretenses.
After reviewing the recordings, Orrick said he found no evidence that abortion providers agreed to illegally sell fetal tissue for profit, as alleged, despite a targeted effort to elicit such responses.
Citing previous testimony, Orrick wrote that before the meetings, “Daleiden told his associates that their ‘goal’ was to trap people into ‘saying something really like messed up, like yeah, like, I’ll give them, like, live everything for you. You know. If they say something like that it would be cool.'”
Daleiden also told his members to suggest that abortion providers employ “creative techniques” that could be “extremely financially profitable,” and allow abortion providers to turn a profit by selling fetal tissue for research.
But Orrick found the conversations cited to support that claim were either misstated or taken out of context.
“Having reviewed the records or transcripts in full and in context, I find that no NAF attendee admitted to engaging in, agreed to engage in, or expressed interest in engaging in potentially illegal sale of fetal tissue for profit,” the judge wrote. “The recordings tend to show an express rejection of Daleiden’s and his associates’ proposals or, at most, discussions of interest in being paid to recoup the costs incurred by clinics to facilitate collection of fetal tissue for scientific research, which NAF argues is legal.”
Orrick found all three factors to consider when ruling on a preliminary injunction – likelihood of success, irreparable harm and balance in favor – tip toward continuing to block the recordings from being disclosed.
Orrick found the Federation is likely to succeed on its claim that the CMP violated signed secrecy agreements, and that a spike in threats against abortion providers after the CMP released videos last year further supports the need for an injunction.
Two doctors submitted declarations saying they were afraid their conversations and statements made during panel discussions would be edited in misleading videos, taken out of context, and open them up to the same kind of harassment and intimidation that other doctors suffered after the CMP released its first batch of videos last year.
Orrick acknowledged the merit of the CMP’s argument that the information it obtained is of great public interest, but he found the value of that information does not outweigh the need to enforce signed contracts and protect the lives, safety and privacy of abortion providers.
Had the recordings actually exposed criminal wrongdoing, as alleged, Orrick said, the CMP might have a stronger case to support its request to deny the injunction.
“In rare circumstances, freedom of speech must be balanced against and give way to the protection of other compelling Constitutional rights, such as the First Amendment’s right to freedom of association, Fifth and Fourteenth Amendment’s protection of liberty interests and the right to privacy,” Orrick wrote in his 42-page ruling.
He also rejected arguments made by attorney generals from seven states who have issued subpoenas seeking records covered by the injunction.
A process requiring the CMP to inform the Federation of records it must hand over to the attorney generals in advance gives the Federation a chance to challenge the subpoenas in court and still allows authorities to pursue their investigations, Orrick said.
He restrained and enjoined the defendants and CMP members from disclosing any videos, recordings, photos or information obtained from the meetings; the dates or locations of future annual meetings; and the names and addresses of any members learned from the meetings.
On Jan. 29, Orrick barred the CMP from using the sealed videos as evidence in a U.S. Supreme Court case over state abortion regulations. The Supreme Court will hear arguments in March in Whole Woman’s Health v. Cole, a challenge to Texas House Bill 2 , which could have nationwide ramifications on clinic regulations.
In January, a Texas grand that was convened to consider criminal charges against Planned Parenthood instead indicted Daleiden on a felony county of tampering with a government record and a misdemeanor of offering to buy human organs.
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