In a resounding disappointment, the Ninth Circuit affirmed most of a district court judgment against citizen journalist David Daleiden and others in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress. Planned Parenthood had sued Daleiden and his organization, the Center for Medical Progress, after he engaged in undercover journalism to investigate the abortionists’ alleged trafficking in aborted fetal tissue. The district court granted judgment against Daleiden and CMP for civil racketeering, federal wiretapping, and various state law claims of fraud, trespassing, and unauthorized eavesdropping, imposing over $1,500,000 in compensatory damages, $870,000 in punitive damages, and multiple millions more in attorneys’ fees and costs. Americans United for Life had filed a friend-of-the-court brief in the case, supporting Daleiden’s argument that the First Amendment protected his undercover journalism and thus precluded compensatory damages.
Overall the ruling was a letdown. The Ninth Circuit rejected the First Amendment argument, affirming each count except for the federal wiretapping issue and related statutory damages. The court held Daleiden’s actions did not have a sufficiently “criminal or tortious purpose” under the Federal Wiretap Act. Rather, “Planned Parenthood’s argument is circular: according to Planned Parenthood, the civil RICO conspiracy is furthered by the records, and the recordings themselves further the ongoing civil RICO conspiracy. Such reasoning is not permitted by [the statute].”
This ruling sets an ominous precedent for undercover journalism and pro-life advocacy. “It is predictable that in the State of California, which is ‘all in’ for abortion on demand, Planned Parenthood should find a receptive system of ‘justice,’” said AUL Chief Legal Officer Steven H. Aden. “But imposing millions of dollars in damages and expenses on individuals who sought only to expose Planned Parenthood’s crass profiteering in human body parts is an affront to the values of many millions of Americans who cherish life from its earliest stages. We call on the U.S. Supreme Court to accept review of Daleiden’s case and hold that the First Amendment prohibits the states from punishing citizen journalists who don’t happen to trumpet their party line.”
