Ninth Circuit Advances Suit Over Anti-Abortion Foes’ Videos

If a defendant moves to strike on legal grounds, then the analysis must be made under rules 8 and 12 of the Federal Rules of Civil Procedure; if a defendant moves on factual grounds, the motion must be treated as though it were a motion for summary judgment and discovery permitted, the court concluded.

"A contrary reading of these anti-SLAPP provisions would lead to the stark collision of the state rules of procedure with the governing Federal Rules of Civil Procedure while in a federal district court," Gould wrote. "In this context, if there is a contest between a state procedural rule and the federal rules, the federal rules of procedure will prevail."

To succeed on their anti-SLAPP motion, the defendants had to show both that their claims rose from acts to further their First Amendment speech rights and that Planned Parenthood couldn't succeed on its claims. The panel affirmed Orrick's conclusion that the defendants failed to meet the second element.

In a separate, unpublished memorandum, it also affirmed Orrick's conclusion that Planned Parenthood sufficiently alleged its 15 causes of action.

"These defendants who were behind this fraud lied and broke the law in order to spread malicious lies about Planned Parenthood," Amy Bomse, Planned Parenthood's attorney with Arnold & Porter Kaye Scholer, said by email. "We're pleased that the Ninth Circuit has affirmed the sufficiency of all 15 claims and that our case can proceed to hold them accountable."

But Jeffrey Trissell, who represents the defendants, said he doesn't believe it would affect his clients' case.

"The Ninth Circuit came down on the side of the plaintiffs, deciding that they had no evidentiary burden at this stage of the litigation. From a pro-life and religious liberty perspective, I don’t believe this published opinion is of much note. From a SLAPP perspective, I think many attorneys who specialize in SLAPP law will find it a very important opinion," said Trissell, an attorney with the Freedom of Conscience Defense Fund, said in an email.

"For us, this is just another step in the case."

Gould, joined by U.S. Circuit Judge Mary Murguia, acknowledged Ninth Circuit precedent allows interlocutory appeals of a denial of an anti-SLAPP motion like this. But Gould wrote in a concurrence that that was error, potentially conflicts with federal procedural rules, and burdens federal courts.

He suggested the Ninth Circuit fix the error in its precedent by rehearing the appeal en banc.

"The allowance of an interlocutory appeal here leads to an absurd result: We review denials of anti-SLAPP motions but not grants of anti-SLAPP motions, although the grant of an anti-SLAPP motion is arguably a more final decision by a district court because it rids the case of the stricken claims," Gould wrote.

"Anti-SLAPP motions are hybrids of motions to dismiss and motions for summary judgment. The denial of either of these motions is generally unreviewable on interlocutory appeal. We should similarly hold here that we will not permit interlocutory appeals of denials of anti-SLAPP motions."

Planned Parenthood wants an injunction barring the defendants from entering its conferences and clinics without disclosing their true identities and recording private conversations with its staff without their consent. In March 2017, a different Ninth Circuit panel upheld Orrick’s injunction in a similar lawsuit brought by the National Abortion Federation, an abortion providers’ trade group, blocking the publication of videos the defendants filmed at its annual meeting.

In that case, Orrick ruled that the pair waived their First Amendment rights when they signed confidentiality agreements to enter the meeting, an argument also made by Planned Parenthood. Orrick said he found no evidence – after reviewing hundreds of hours of recordings – that abortion providers had agreed to sell fetal tissue.

That same month, California prosecutors charged Daleiden and Merritt in San Francisco with 15 felony counts of conspiracy and invasion of privacy for surreptitiously recording more than a dozen people affiliated with Planned Parenthood.

Daleiden acknowledged creating fake driver’s licenses and business cards to enter the conferences by using an email password to access the confidential documents of a real medical company called StemExpress, according to an affidavit filed in the case.

He and Merritt used the materials to pose as exhibitors at conferences organized by the National Abortion Federation, according to the affidavit. They secretly recorded speakers and attendees, and set up supposedly private meetings at restaurants to record conversations with doctors and clinicians.

Last month, the U.S. Supreme Court rejected a request by the defendants to publicly release the secret recordings they made at National Abortion Federation meetings in San Francisco and Baltimore.

In an emailed statement, Daleiden’s group said: "Since CMP released undercover videos of top-level Planned Parenthood abortion doctors casually discussing the sale of aborted baby body parts, two Congressional investigations issued nearly a dozen criminal referrals against the abortion giant, the Department of Justice announced their own investigation late last year, and CEO Cecile Richards resigned. If Planned Parenthood continues with their meritless litigation, they will answer questions on the record about their fetal body parts sales and they will incriminate themselves."

Chief U.S. District Judge Nancy Freudenthal, sitting by designation from the District of Wyoming, joined Gould and Murguia on the panel.

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