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Ninth Circuit:
First Amendment Doesn’t Shield Surreptitious Videotaping
Planned Parenthood Loses Only $90,000 of $2.4 Million Award Against Pro-Life Group
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, spurning a First Amendment challenge, on Friday left intact all but a relatively negligible portion of the $2.4 million award in favor of Planned Parenthood Federation of America, Inc. and related entities that was based on members of the Center for Medical Progress, an anti-abortion group, secretly videotaping employees of the pro-choice organization and publicly releasing the edited videos.
Seeking to show that Planned Parenthood sells fetal tissue, the defendants infiltrated the organization and made the recordings over a period of about a year and a half, releasing edited versions in 2015. In reaction, Planned Parenthood expended funds for body guards, hiring security consultants and beefing up its security.
A three-judge panel, in an opinion by Judge Ronald M. Gould, affirmed the compensatory damages and punitive damages but reversed statutory damages under the Federal Wiretap Act. In his April 29, 2020 judgment, District Court Judge William H. Orrick of the Northern District of California made nine awards of $10,000 each based on such damages.
Gould noted that all of the compensatory damages awarded under that act were duplicative of damages that were affirmed. The $2,425,084 award was thus pared to $2,335,084.
Claimed Journalist Status
The defendants, portraying themselves as journalists, invoked the protection of the First Amendment, insisting they used the same techniques used by reporters for news shows 20/20 and Dateline. Gould responded:
“[J]ournalists must obey laws of general applicability. Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society. None of the laws Appellants violated was aimed specifically at journalists or those holding a particular viewpoint. The two categories of compensatory damages permitted by the district court, infiltration damages and security damages, were awarded by the jury to reimburse Planned Parenthood for losses caused by Appellants’ violations of generally applicable laws….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.”
He noted that Planned Parenthood would have been able to recover damages even if the videos had not been published because it would still have needed to increase its security after the infiltration had been realized.
Gould commented:
“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. 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.”
No Wiretap Violation
Planned Parenthood contended that the defendants surreptitiously recorded its employees on 42 occasions at conferences and lunches and at the clinics, in violation of the Federal Wiretap Act, 18 U.S.C. §2511(2)(d). The plaintiff also claimed civil violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) by engaging in a criminal conspiracy.
Gould said there is no valid claim under the Wiretap Act.
Sec. 2511(2)(d) provides that a person may record a conversation to which that person is a party unless the “communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” The jurist noted:
“This criminal or tortious purpose must be separate and independent from the act of the recording.”
He wrote:
“Planned Parenthood runs afoul of this requirement by reusing the same criminal purpose—furthering the civil RICO scheme to destroy Planned Parenthood—as both the purpose of the civil RICO claim and the independent criminal or tortious purpose of § 251l(2)(d). And, Planned Parenthood’s argument is circular: according to Planned Parenthood, the civil RICO conspiracy is furthered by the recordings, and the recordings themselves further the ongoing civil RICO conspiracy. Such reasoning is not permitted by § 2511(2)(d).”
In a separate memorandum opinion, the three-judge panel rejected other contentions by Center for Medical Progress. The panel was comprised of Gould, Chief Judge Mary H. Murguia, and Nancy D. Freudenthal, a District Court judge of the District of Wyoming, sitting by designation.
One of those contentions was that Orrick was remiss in refusing to recuse himself based on pro-choice advocacy by his wife, Caroline, and her attacks on the leader of the center, David Daleiden, and that Judge James Donato erred in finding no basis for a forced recusal. The defendants/appellants argued in their opening brief:
“[O]n multiple occasions, the district judge’s wife, using a photo of herself with the judge as her profile picture, publicly supported social media posts that applauded criminal charges against Daleiden and described Defendants’ work as ‘domestic terrorism’ and their published videos as ‘heavily edited videos by a sham organization run by extremists who will stop at nothing to deny women legal abortion services.’…She also expressed support for Planned Parenthood in a social media campaign to garner support amid the public scandal caused by the release of the videos….To be clear, this is not a situation in which a judge’s family member simply expressed views on a political issue related to a case. Here, the district judge’s wife publicly expressed views directly related to the merits of the case and the litigants before him, using the judge’s image in her statements. That creates an unacceptable appearance of bias.”
The panel said in Friday’s opinion:
“Judge Orrick did not abuse his discretion in refusing to disqualify himself, and Judge Donato did not abuse his discretion in determining that Judge Orrick need not recuse himself. A reasonable person would not ascribe the views of a judge’s spouse to the judge him or herself simply because the spouse’s profile picture included the judge….Nor would a reasonable person have questioned the impartiality of Judge Orrick given his former role at the Good Samaritan Family Resource Center.”
Helene Krasnoff, Planned Parenthood’s vice president for public policy litigation and law, commented:
“We are thrilled with today’s ruling. 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 multi-year campaign to advance their anti-abortion 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. 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.”
Heather Hacker, a member of the State Bar of California working at the Texas firm of Hacker Stephens, is the attorney for Center for Medical Progress. She remarked:
“We believe the ruling is wrong and are evaluating further options.”
The case is Planned Parenthood Federation v. Center for Medical Progress, 20-16068.
Yet to be decided is an appeal from Orrick’s’ order that the defendants pay Planned Parenthood $14,778,435.49 in attorney fees and costs.
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