Planned Parenthood Secret Video Recording Suit Victory Stands

Anti-abortion activists who misrepresented their identities to gain access to private Planned Parenthood events must pay over $2 million in damages to the abortion advocacy group and its related entities.

The US Court of Appeals for the Ninth Circuit on Friday upheld a lower court’s judgment finding David Daleiden and his colleagues at the Center for Medical Progress liable for violations of the federal Civil Racketeer Influenced and Corrupt Organizations Act, trespass, fraud, conspiracy, breach of contracts, and unlawful and fraudulent business practices.

The court rejected the defendants’ argument that they couldn’t be held liable for damages because were engaged in journalistic newsgathering when the allegedly unlawful acts took place. Even journalists must comply with laws of general applicability, the US Court of Appeals for the Ninth Circuit said.

“The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office,” Judge Ronald M. Gould’s opinion said. Journalists “have no special license to break laws of general applicability in pursuit of a headline,” it said.

The award included nearly $1 million in punitive damages.

The Ninth Circuit, however, vacated a statutory damages award under the federal wiretapping statute. The law allows people to record conversations in which they’re participants, unless the recording is made for criminal or tortious purposes. The exception didn’t apply here, the court said.

The defendants used fake driver’s licenses and a false company to infiltrate conferences hosted by Planned Parenthood Federation of America Inc. and other abortion advocacy groups. They used the same strategy to meet with Planned Parenthood staff and health clinics and to surreptitiously record the sessions.

The defendants produced videos using the recordings and released them on the internet. The videos, which Planned Parenthood said have been debunked, purported to show members of the group discussing selling fetal tissue. It damaged Planned Parenthood’s reputation and gave rise to threats that required it to increase security.

The damages award came after a six-week jury trial. The trial judge also entered an injunction that blocked the defendants from entering or trying to enter a Planned Parenthood conference, office, or health center in the future by misrepresenting their identity or purpose. The order also prohibits recording, without consent, any private meeting or other conversation.

The Ninth Circuit rejected the defendants’ other objections to the judgment in a separate unpublished opinion also released Friday.

Chief Judge Mary H. Murguia and Judge Nancy D. Freudenthal, of the US District Court for the District of Wyoming, sitting by designation, joined.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Arnold & Porter Kaye Scholer LLP, Planned Parenthood Federation of America, and Parker Law & Mediation represent the plaintiffs.

Heather Hacker of Austin, Texas, American Center for Law & Justice, Life Legal Defense Foundation, Michael Millen of Los Gatos, Calif., Mayall Hurley PC, Freedom of Conscience Defense Fund, Thomas More Society, Dhillon Law Group Inc., Law Office of Nic Cocis & Associates, and Liberty Counsel represent the defendants.

The case is Planned Parenthood Fed’n of Am., Inc. v. Newman, 9th Cir., No. 20-16068, 10/21/22.