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Ninth Circuit keeps abortion foes’ secret videos under wraps

The panel also upheld civil contempt sanctions for violations of a lower court's preliminary injunction.

SAN FRANCISCO (CN) — A Ninth Circuit panel handed a loss to abortion foes who claim to have secretly recorded deals between themselves and abortion providers to purchase fetal tissue.

In a six-page unsigned ruling, the panel found a federal judge correctly granted summary judgment and an injunction in favor of the National Abortion Federation in its case against the Center for Medical Progress, Biomax Procurement Services and abortion foe David Daleiden. The federation claims the defendants set up a fake company that purportedly procures fetal tissue, then harassed the federation by making secret recordings of meetings in which they purportedly trapped staff into "selling" fetal tissue on camera.

The three defendants appealed the lower court's orders holding them in civil contempt for violating a preliminary injunction by releasing the videos. They also contested the amount of the sanctions.

Daleiden, who heads the Center for Medical Progress, has styled himself as a citizen journalist working undercover to expose the market for fetal tissue derived from abortions. He and fellow activist Sandra Merritt posed as human tissue procurers for a fake company called BioMax to infiltrate conferences hosted by the federation in 2014 and 2015. As exhibitors, they got an inside look at the private events, where they secretly recorded conversations they later posted online.

In 2019, a federal jury awarded Planned Parenthood nearly $2 million after finding Daleiden and Merritt caused the organization substantial harm. In 2021, U.S. District Judge William Orrick issued an order barring Daleiden from releasing the recordings and finding in the federation's favor on a claim for breach of contract, avoiding a second trial on the same facts as the Planned Parenthood case.

Lawyers for Daleiden told the Ninth Circuit panel during oral arguments this month that a confidentiality agreement Daleiden signed to be an exhibitor should not bar him from releasing the recordings. But U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, said Daleiden had willingly signed away his First Amendment rights when he signed confidentiality and exhibitor agreements — in line with what Orrick found.

“If he didn’t want to sign it, he could have left,” said McKeown. She said Orrick’s ruling appeared to meet the standard for speech in Janus v. AFSCME, where a waiver of First Amendment rights must be freely given and shown by clear and compelling evidence. 

"We have a specific waiver that he was asked to sign and basically the district court made the termination that he had intimate familiarity with nondisclosure agreements,” McKeown added.

Representing the federation, attorney Adam Sorensen with Morrison & Foerster said both contracts met the clear and compelling standard, but the exhibitor agreement specifically shows Daleiden's consent to NAF's rules. He also said the balance of interests weighs in favor of keeping the recordings private.

“On the one hand you have the defendant's limited interest in information that he lied to obtain and stole, and you have a limited public interest in that same information,” Sorenson said, adding that Orrick “went through these recordings very carefully and determined as a matter of fact that they showed no wrongdoing on the part of NAF and its members.”

On Friday, the panel found Daleiden had waived his First Amendment rights and the videos the defendants secretly recorded should not have been released.

“Defendants knowingly, voluntarily, and intelligently waived any First Amendment rights in disclosing the information they obtained at the NAF conferences by signing the agreements with NAF,” McKeown and U.S. Circuit Judges Sidney Thomas — also a Clinton appointee — and Richard Clifton, a George W. Bush appointee, found. “Daleiden voluntarily signed the agreements, and testified that he was familiar with the contents. The agreements unambiguously prohibited him from making records, disclosing recordings, and from disclosing any information he received from NAF.”

The panel also found Orrick did not abuse his discretion by denying defendants’ motion to disqualify himself or by holding Daleiden and CMP in contempt of the preliminary injunction. The panel said Daleiden’s team failed to demonstrate that a reasonable person would believe Orrick's impartiality could be questioned. 

The panel also wrote that Steven Cooley and Brentford Ferreira, who represented Daleiden in a related state court case, were bound by the preliminary injunction since they had received adequate notice and were apprised of the possibility of civil sanctions more than a month before the contempt hearing was held. 

“Shortly before the hearing, they were informed that the district judge was only considering civil sanctions,” the panel wrote. “The district court did not err in concluding that Cooley and Ferreira did not have an objectively reasonable basis for believing that the injunction did not apply to them.”

Neither Sorensen nor Daleiden's attorney Heather Hacker offered comment by press time Friday. 

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