Abortion foes largely lose $2.4 mln appeal over Planned Parenthood videos

A sign is pictured at the entrance to a Planned Parenthood building in New York
A sign is pictured at the entrance to a Planned Parenthood building in New York August 31, 2015. REUTERS/Lucas Jackson/File Photo
  • First Amendment does not shield illegal conduct, panel finds
  • Part of verdict related to federal wiretapping law overturned

(Reuters) - Anti-abortion group Center for Medical Progress, its founder David Daleiden and others on Friday lost most of their challenge to a $2.4 million judgment entered against them after a jury found they broke the law by secretly recording Planned Parenthood employees.

A unanimous panel of the 9th U.S. Circuit Court of Appeals rejected the defendants' argument that their scheme, which involved creating a fake company and fake identities to infiltrate Planned Parenthood conferences and secretly record employees, was journalism protected by the First Amendment of the U.S. Constitution.

Circuit Judge Ronald Gould wrote that the right to free speech cannot shield illegal conduct, such as forging signatures or breaking contracts. He said the decision did not impose any restrictions on journalistic speech but simply reaffirmed "the established principle that the pursuit of journalism does not give a license to break laws of general applicability."

The panel did overturn one part of the jury's verdict, which found that the defendants violated the Federal Wiretap Act by secretly recording their conversations with Planned Parenthood employees, writing that the law generally allows recording by a party to a conversation. That part of the verdict accounted for less than $100,000 in damages.

Gould was joined by Circuit Judge Mary Murguia and U.S. District Judge Nancy Freudenthal of Wyoming, sitting by designation.

"We believe the ruling is wrong and are evaluating further options," said Heather Hacker of Hacker Stephens, a lawyer for Daleiden and the Center for Medical Progress.

Planned Parenthood Vice President Helene Krasnoff, said: "We are thrilled with today’s ruling."

The Center for Medical Progress released videos in 2015 purporting to show Planned Parenthood employees illegally offering to sell fetal tissue, sparking outrage from abortion foes. The organization has denied the accusation, and congressional and state investigations have not substantiated the claim.

Planned Parenthood sued Daleiden, the California-based Center for Medical Progress and related individuals and entities in 2016 in San Francisco federal court, accusing them of conspiracy and wiretapping violations under federal law, as well as claims under California law for fraudulently gaining access to the conferences.

The defendants argued that their conduct was in line with what investigative television news programs had done and was protected by the First Amendment.

In 2019, a jury ordered the defendants to pay about $2 million in damages. U.S. District Judge William Orrick, who presided over the trial, later added statutory damages, bringing the amount to more than $2.4 million and awarded Planned Parenthood more than $13 million in fees, which are the subject of a separate appeal.

The case is Planned Parenthood Federation v. Center for Medical Progress, 9th U.S. Circuit Court of Appeals, No. 20-16068.

For Daleiden and the Center for Medical Progress: Heather Hacker of Hacker Stephens

For Planned Parenthood: William Perdue of Arnold & Porter Kaye Scholer

Read more:

Abortion foes appeal $2 mln verdict over secret Planned Parenthood videos

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.