Mixed Bag for Abortion Foe Behind Secret Videos

SAN FRANCISCO (CN) – A federal judge on Friday rejected an anti-abortion activist group’s request to halt discovery in a suit over secret videos, while a state court judge dropped a ban on other videos in a separate case.
The National Abortion Federation sued the Center for Medical Progress in late July, saying the CMP created a fake company to gain access to and secretly record federation meetings, despite having signed confidentiality agreements pledging not to disclose the information.
The CMP has released four secretly recorded videos of Planned Parenthood officials discussing the sale of fetal tissue in recent weeks, triggering a backlash of criticism against the nation’s largest abortion provider and leading to a failed attempt by some U.S. senators to defund the organization earlier this month.
U.S. District Judge William Orrick issued a temporary restraining order to stop CMP from releasing more secretly recorded videos of federation members until he rules on a request for preliminary injunction on Oct. 9.
When both parties appeared before the judge for a discovery hearing on Aug. 21, Orrick voiced some frustration with the “inadvertent noncompliance” of his orders to proceed with discovery.
“Instead of proceeding with discovery, defendant filled an anti-SLAPP motion,” Orrick said. “That argument has no merit.”
In its Aug. 18 motion to strike, the CMP argued that California’s anti-SLAPP law protects it from claims that restrict its right to free speech, especially in cases of reporting on issues of public interest. The group describes itself as “a group of citizen-journalists dedicated to monitoring and reporting on medical ethics and advances.”
“Where, as here, an anti-SLAPP motion is based solely on the adequacy of the pleadings, the filing of the motion also stays all pending discovery in federal court,” CMP stated in its 25-page motion to strike.
Orrick said the center’s motion to strike was “riddled with factual disputes,” and he refused to hear arguments on its request to stay discovery.
“In order for me to make the determination on these three very important motions on Oct. 9, I need that discovery,” Orrick said. “I need to know what happened to know where the interests of the First Amendment lie. I’m not going to stay anything.”
Attorney Carly Gammill, representing CMP’s co-defendant Troy Newman, asked the judge to also consider the privacy interests of unnamed defendants whose identities the plaintiffs seek to uncover through discovery.
“Similar to the types of threats that have been made in the past, there are similar threats that come against anti-abortion, pro-life advocates,” said Gammill. “There are significant concerns that those associated on that side, if their names are publicized, they could receive threats.”
Orrick replied by underscoring his commitment to protect the privacy of individuals, especially in “highly charged” cases like this one.
“There should be a way of protecting the individuals’ names and identifying information on behalf of the defendants that does not preclude the plaintiffs from making the case they’re trying to make,” Orrick said.
The judge also said names of federation members could be redacted from documents to protect their privacy as well but in a way that tracks each individual, such as referring to them as “Witness 1.”
The CMP also requested that video evidence be limited to attorney’s eyes only to protect the identities of individuals recorded on those videos, but the pro-abortion rights group disagreed.
“If there is a particular name, we can make it attorney’s eyes only but not prohibit the parties from viewing the video,” said federation attorney Christopher Robinson.
Orrick instructed both parties to work out those details for themselves in an attorneys’ conference and to proceed with discovery in advance of a preliminary injunction hearing scheduled for Oct. 9.
Meanwhile, an LA County Superior Court judge ruled in a separate case that CMP does have the First Amendment right to release secretly recorded videos – even though California law prohibits the unauthorized recording of private conversations.
Judge Joanne O’Donnell’s ruling, also on Friday, comes after Placerville, Calif.-based StemExpress sued to block CMP from releasing videos it had secretly recorded while pretending to be buyers from a human biologics company.
StemExpress provides human tissue, blood and other specimens to researchers and Planned Parenthood was one of its biggest suppliers of fetal tissue until the company severed ties earlier this month in the wake of the CMP video fallout.
O’Donnell acknowledged that StemExpress would likely prevail on its invasion of privacy claims, given the illegality of secretly recording confidential conversations – rejecting CMP’s argument that its recordings fell under an exemption of state privacy law by documenting what the group believe is criminal activity, namely partial-birth abortion.
But she said that barring the videos’ release would do more harm to CMP’s free-speech rights than StemExpress would suffer if they were released.
“This is true even where the speech is false, defamatory, violative of privacy rights or otherwise tortious in nature,” O’Donnell wrote in an 11-page order. “The harms plaintiffs assert in their moving papers are insufficient to counterbalance the constitutional harms that the injunction would cause defendants.”
An attorney for CMP told Courthouse News the group has already released a new short video with clips from “many of their investigations,” and expects to release the full video soon.

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