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Ninth Circuit finds abortion foe’s undercover tactics not protected by First Amendment

A Ninth Circuit panel upheld a jury verdict that found antiabortion activist David Daleiden substantially harmed Planned Parenthood by secretly recording abortion providers at industry conferences.

SAN FRANCISCO (CN) — The long-running legal fight between abortion foe David Daleiden and Planned Parenthood took another turn Friday, as a Ninth Circuit panel found Daleiden’s undercover videos are not entitled to First Amendment protections.

The panel’s ruling largely upheld a jury’s 2019 verdict finding Daleiden and his antiabortion group the Center for Medical Progress substantially harmed Planned Parenthood by recording secret videos of abortion providers and posting them online, and awarding Planned Parenthood more than $2 million in compensatory and statuary damages.

Using fake IDs to gain access, Daleiden and fellow activist Sandra Merritt used fake IDs an infiltrated abortion industry conferences from 2013 to 2015, by posing as exhibitors with a phony human tissue procurement company called BioMax.

Daleiden and Merritt maintained they were citizen journalists investigating “violent felonies” based on a belief that infants were being born alive at Planned Parenthood clinics and that Planned Parenthood was illegally profiting from the sale of fetal tissue for medical research.

While the panel said it had no view on whether the tactics were legitimate journalism or part of a smear campaign as Planned Parenthood contended, it was nonetheless illegal and the First Amendment does not preclude the award of damages to reimburse Planned Parenthood for security costs and changes to their vetting procedures.

"Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society,” U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, wrote for the unanimous panel. “Appellants have been held to the letter of the law, just like all other members of our society. Appellants have no special license to break laws of general applicability in pursuit of a headline.”

Gould noted that the decision does not chill investigative journalism, writing, “Our decision does not impose a new burden on journalists or undercover investigations using lawful means. From the beginning of their scheme, appellants engaged in illegal conduct — including forging signatures, creating and procuring fake driver’s licenses, and breaching contracts — that the jury found so objectionable as to award Planned Parenthood punitive damages.”

He continued, “Journalism and investigative reporting have long served a critical role in our society. But journalism and investigative reporting do not require illegal conduct. In affirming Planned Parenthood’s compensatory damages from appellants’ First Amendment challenge, we simply reaffirm the established principle that the pursuit of journalism does not give a license to break laws of general applicability.”

The panel reversed the jury's finding that Daleiden and his cohort violated the Federal Wiretap Act by recording Planned Parenthood staff 42 times at conferences, lunches, and health clinics without their consent. Planned Parenthood had claimed the recordings were made in furtherance of civil racketeering scheme to destroy the organization, but the panel found Planned Parenthood could not reuse the same criminal purpose to support a Federal Wiretap Act claim.

In a separate memorandum, the panel upheld U.S. District Judge William Orrick's ruling in favor of Planned Parenthood on its contract, trespass and racketeering claims.

Gould was joined by Chief U.S Circuit Judge Mary Murguia, a Barack Obama appointee, and U.S. Circuit Judge Nancy Freudenthal, an Obama appointee sitting by designation from the District of Wyoming.

"We are thrilled with today’s ruling," Helene Krasnoff, the vice president of public policy litigation and law at Planned Parenthood, said in a statement to Courthouse News Friday morning. "In 2019, a jury — with all of the facts fully presented to it — determined that David Daleiden and the Center for Medical Progress intentionally broke the law in a multiyear campaign to advance their antiabortion agenda and prevent Planned Parenthood from serving the patients who depend on us. Daleiden was ordered to pay millions of dollars in damages as a result. Today, the Ninth Circuit Court of Appeals affirmed those holdings, once again making clear that the only people who engaged in wrongdoing were those behind this malicious fraud."

Krasnoff added, "This was never about monetary gain; this was about exposing the fraudulent and illegal actions of Daleiden and those who conspired with him, and ensuring that Planned Parenthood providers are able to continue serving the 2.4 million patients who rely on us for high-quality health care every year."

Peter Breen, vice president and senior counsel for the Thomas More society who represented Daleiden at trial, said the panel’s decision reverses decades of precedent that enshrines constitutional protections for journalists. He compared Daleiden and Merritt to the reporters in Food Lion v. Capital Cities v. ABC who went undercover at a grocery store to investigate meat handling practices.

“This decision provides a roadmap for large corporations to shut down and bankrupt investigative journalists who would expose their wrongdoing. It would reverse nearly 30 years of consistent precedent protecting the First Amendment rights for journalists [Food Lion v ABC],” Breen said in a statement. “We will appeal this decision to the en banc full panel of judges of the Ninth Circuit. Every American should be disturbed by this decision, which stabs at the heart of the First Amendment, and the Thomas More Society will press on to defend Mr. Daleiden and his undercover reporting, which has so greatly benefited our nation."

Daleiden also vowed to fight on. "A Ninth Circuit panel decided with this ruling today that protecting Planned Parenthood's barbaric practices of partial-birth abortion and trafficking of aborted fetuses for government-sponsored experiments is more important than protecting the First Amendment rights of journalists and of the public. In order to do this, the panel had to contradict its own precedents about undercover reporting on any other topic, disregard other Circuits' en banc findings of wrongdoing by Planned Parenthood, and bless the increasing weaponization of the justice system against pro-life speech," Daleiden said in a statement through his spokesperson. "The tide of history is turning against the panel's obsolete pro-abortion exceptionalism, and we will appeal until the constitutional rights of reporters and the public prevail."

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