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Ninth Circuit Rejects Pro-Life Group’s Appeal of $2.4M Verdict Over Planned Parenthood Videos: ‘Journalism and Investigative Reporting Do Not Require Illegal Conduct’

 David Daleiden

David Daleiden, pictured on Feb. 4, 2016 in Houston outside the Harris County Courthouse.

The pro-life group behind misleading video about the purported sale of aborted fetal tissue lost its appeal of Planned Parenthood’s $2.4 million judgment against them, as a federal appellate court unanimously affirmed all but one of a jury’s findings.

A deceptively edited video made in 2016 by anti-abortion group the Center for Medical Progress claimed to demonstrate that Planned Parenthood financially profited from the illegal sale of fetal tissue following abortions conducted on its premises. Allegations of wrongdoing were summarily denied by Planned Parenthood, and have been dismissed multiple times by the Department of Justice; the video was discredited.

The video was pieced together using footage that the pro-life activists secretly obtained while posing as representatives from a fake tissue procurement company and attending lunch meetings and site visits with Planned Parenthood staff. The defendant activists involved used false drivers licenses, pseudonyms, and fake business cards, along with hidden cameras.

After the making of the video was investigated by law enforcement, Center for Medical Progress founder and pro-life activist David Daleiden faced charges in both Texas and California for his alleged role in the incident.

Planned Parenthood sued the Center for Medical progress as well as the individuals involved, and after a six-week trial, the defendants were were found liable for trespass, fraud, conspiracy, breach of contracts, unlawful and fraudulent business practices, violating civil RICO, and violating various federal and state wiretapping laws. Planned Parenthood was awarded $2.4 million in statutory, compensatory, and punitive damages, as well as injunctive relief.

The defendants appealed the verdict, and the U.S. Court of Appeals for the Ninth Circuit affirmed almost all of the lower court’s rulings on Friday. The appellate court reversed the jury’s verdict solely on the Federal Wiretap Act claim and related damages.

U.S. Circuit Judge Ronald Gould (a Bill Clinton appointee) wrote for the three-judge panel of the Ninth Circuit, rejecting the activists’ argument that their wrongdoing was protected First Amendment activity. Gould wrote that the right to free speech is an insufficient justification for illegal conduct. Chief Judge Mary H. Murguia and U.S. District Judge (sitting by designation) Nancy D. Freudenthal (both Barack Obama appointees), constituted the remainder of the panel:

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.

The panel noted that given the activists’ wrongdoing, Planned Parenthood would have been able to recover even if there had never been any publication of the secretly taped videos.

The one portion that the panel chose to overturn — the Federal Wiretap Act claim — accounted for less than $100,000 of the $2.4 million in damages assessed by the trial court. The panel found that under the law, recording by a party to a conversation is permissible. That part of the verdict accounted for less than $100,000 in damages.

In a statement posted online, the Center for Medical Progress reacted to the Ninth Circuit’s ruling by doubling down:

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. 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.

Planned Parenthood said in a statement that it was “thrilled” with the appellate court’s ruling:

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 9th U.S. 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 2.1 million patients who rely on them for high-quality health care every year.

[Image via Eric Kayne/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos