by Michael C. Dorf
Last week, a civil jury in federal district court in San Francisco sided with Planned Parenthood and against anti-abortion activist David Daleiden and his organization the Center for Medical Progress, with liability for compensatory and punitive damages totaling just over $2 million. I am ambivalent about the decision.
Readers will recall that Daleiden and his organization have waged a multi-year campaign to "expose" ostensible wrongdoing at Planned Parenthood facilities around the country. I use quotation marks around "expose" to indicate that an important part of that campaign involves misleadingly editing portions of conversations with Planned Parenthood officials to make it appear that it is engaged in the ghoulish business of selling fetal remains for profit.
The misleading editing and subsequent publicity for the charge of sale of fetal body parts amount to what Professor Sid Tarrow and I have called a "scam" by Daleiden and his associates. If the defendants in this case had been held liable for defamation for their claim--backed by doctored videos--that Planned Parenthood sells fetal body parts for profit, I would have no objection.
But that is not exactly what last week's verdict does. Instead, the verdict is based on what Prof Tarrow and I called (in the same article just linked) the "sting" phase of the operation: the deception the defendants used to gain access to the Planned Parenthood officials and the surreptitious recording of them. I could not find the jury instructions on a publicly available website, but I found them on WestLaw, and they appear to premise liability on the harm caused by the false pretenses used to gain entry onto Planned Parenthood premises and on surreptitious recording. It's true that the misleading editing of the videos contributed to the harm caused by the entry and recording, but as I read the jury charge, the jury could have found liability even if the harm arose entirely from the dissemination of wholly unedited video recordings.
As Professor Sherry Colb and I wrote in a January 2016 CNN.com op-ed, legal proscription of sting operations by self-styled journalist-activists risks chilling legitimate undercover reporting. In general, I agree with Professors Alan Chen and Justin Marceau, who wrote in a 2016 Columbia Law Review article that surreptitious recording should be protected by the First Amendment. The deception used to gain access to closed places is what they call in another article a "high-value lie."
Yet I am not entirely confident that the extant positive law reflects the view that Chen, Colb, Marceau, Tarrow, and I favor. At least where, as in the Daleiden case, a criminal or civil defendant is subject to (criminal or civil) liability on the basis of a statute or common law rule that does not specifically target him based on the content of his speech, existing First Amendment doctrine may not be violated. Accordingly, my uneasiness with the Planned Parenthood jury verdict is rooted in my normative views and my views about the best understanding of the First Amendment rather than First Amendment doctrine as it currently exists.
To be sure, my own view raises at least two difficult issues. First, I would not give absolute protection to investigators. A defense that an investigator used deception or surreptitiously recorded a conversation would only be available where there is a genuine public interest in the information sought and where there is not a substantial ground for keeping that information secret. Personal privacy in such matters as medical information, trade secrets, and genuine national security concerns are the sorts of interests that would warrant secrecy. In the Planned Parenthood case, for example, any disclosure of the identities of patients or staff would be permissibly proscribable under my view.
Second, in response to my op-ed with Prof Colb, a number of readers objected that Daleiden and his colleagues are not bona fide journalists. In the article with Prof Tarrow, we argue that the distinction between activists and journalists is untenable on historical and practical grounds. Journalism has been returning to its roots in activism. Modern technology--especially the ubiquity of mobile-phone video recording capacity and social media--make it impossible and pointless to distinguish among journalists, activists, and the public. We would protect the activity, not the actor, although who the actor is might under some circumstances be relevant to assessing the activity.
Bottom Line: As before, I support Planned Parenthood's work and decry the efforts to defame it; however, I remain very concerned about liability for activists who use necessary deception to uncover wrongdoing, whether those activists object to the ill treatment of animals, environmental harms, or abortion.