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Ninth Circuit won’t revisit Planned Parenthood win over ‘citizen journalists’

The anti-abortion activists vowed to take their case to the U.S. Supreme Court after they failed to get an en banc rehearing at the Ninth Circuit.

(CN) — The Ninth Circuit declined to reconsider a panel's decision this past October upholding a jury verdict against a group of anti-abortion activists and purported citizen journalists who had secretly recorded Planned Parenthood staffers at conferences and health clinics.

The San Francisco-based court on Wednesday denied multiple requests by the activists to rehear their appeal before an en banc panel of the court, consisting of 11 justices. The customary three-judge panel had largely upheld the 2019 jury verdict that found the activists liable for recording secret videos of abortion providers and posting them online. The jury awarded Planned Parenthood more than $2 million in compensatory and statuary damages.

The petitions for an en banc hearing were circulated to the full court and no judge requested a vote on whether to hear the matter en banc, according to the court's order.

The decision doesn't quite put an end to the long-running legal fight between abortion foe David Daleiden and Planned Parenthood, however, as the appellants vowed to petition the U.S. Supreme Court.

"The Supreme Court is our next destination to undo the injustice of this case," said Mathew Staver, the founder and chairman of Liberty Council in Florida, which represents defendant Sandra Merritt. "The high court will have the final say. Every journalist and person who values free speech and a free press should be concerned with the implications of this case. We will fight for the free speech rights of all people."

Merritt claimed she participated in an undercover investigative project for Daleiden's Center for Medical Progress to expose what she said was fetal tissue trafficking in the abortion industry, according to her request for a Ninth Circuit rehearing. To gain access to abortion industry insiders, they posed as representatives of a tissue procurement company, and using a cover story they secured lunch meetings with Planned Parenthood doctors and attended conferences.

Daleiden and Merritt maintained they were citizen journalists investigating “violent felonies” based on a belief that fetuses 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 Ninth Circuit panel said in its October decision that it had no view on whether the tactics were legitimate journalism or part of a smear campaign as Planned Parenthood contended, the defendants' actions were 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.

"This is a great day for the plaintiffs’ bar," said Catherine Short with the Life Legal Defense Foundation, who represents Albin Rhomberg, one of the other defendants who appealed the jury verdict. "Based on the Ninth Circuit’s decision, a plaintiff who suffered no harm can be awarded damages for expenses he voluntarily incurs to prevent some hypothetical harm from a hypothetical tort in the future, committed by anyone, not just the defendant who has to pay."

According to Rhomberg's petition for a rehearing, while awards of compensatory damages are as old as the law itself, the Ninth Circuit's October decision panel broke with "ancient legal precedent" by affirming as compensatory damages money spent solely for upgrades to prevent future infiltrations by appellants and third parties.

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