ST LOUIS, MO – JUNE 04: A Planned Parenthood Reproductive Health Center on June 4, 2019 in St Louis, Missouri (Photo by Michael B. Thomas/Getty Images). Inset top: David Daleiden speaks to supporters outside the Harris County Criminal Courthouse on Feb. 4, 2016, in Houston (AP Photo/Bob Levey). Inset bottom: FILE – In this Feb. 3, 2016 file photo, Sandra Merritt, an anti-abortion activist, leaves a courtroom in Houston. (AP Photo/Pat Sullivan, File)
The anti-abortion group behind a debunked and misleading video that purported to prove that Planned Parenthood was selling aborted fetal tissue is now asking the United States Supreme Court to step in and shield it from paying $2.4 million in damages to the health services organization.
The Center for Medical Progress (CMP) filed its reply brief with the justices Tuesday in which it urged the Court to overturn a ruling by the U.S. Court of Appeals for the Ninth Circuit and find its conduct protected by the First Amendment. In its filing, CMP said nothing about the truth of the false video or the related false allegations against Planned Parenthood, but insisted that it should be protected as a group of "investigative journalists."
On its website, CMP also included a post entitled "BREAKING: Planned Parenthood Admits to U.S. Supreme Court that CMP's Undercover Videos Are True," in which it accused Planned Parenthood of making "a crucial admission" about having been "caught negotiating the harvesting and sale of aborted fetal body parts on undercover video" — and linked Planned Parenthood's reply brief is purported proof of its allegations.
A fake video, indictments, and a civil lawsuit
CMP made a deceptively edited video in 2016 by having anti-abortion activists pose as representatives from a fake tissue procurement company and attending lunch meetings and site visits with Planned Parenthood staff. The activists involved used false drivers licenses, pseudonyms, fake business cards, and hidden cameras to pull off their ruse.
Ultimately, CMP's founder, David Daleiden, and another employee, Sandra Merritt, were indicted for multiple felonies related to the making of the phony video.
Planned Parenthood also sued CMP as well as Daleiden and Merritt. After a six-week trial, the defendants were were found liable for trespass, fraud, conspiracy, breach of contracts, unlawful and fraudulent business practices, and for violating civil RICO and various federal and state wiretapping laws. A jury awarded Planned Parenthood $2.4 million in statutory, compensatory, and punitive damages, as well as injunctive relief.
CMP appealed and lost when a federal appellate court unanimously affirmed all but one of the jury findings.
Video makers look to the justices for help
CMP asked the Supreme Court in May to overturn the Ninth Circuit's ruling and allow the First Amendment to shield it from the multimillion dollar judgment. Despite the jury's finding that CMP committed a litany of dishonest and illegal acts, the organization doubled down on its own allegations against Planned Parenthood — and warned the justices that refusal to take the case would have "a profound impact on undercover journalism."
CMP's brief appears untethered to several core legal realities.
For example, in its filing, CMP asserts that, "[t]his case arises from Petitioners' investigation of illegal and unethical conduct in the abortion industry." Given that Planned Parenthood, the aggrieved party, started, proved, and won the lawsuit, a more accurate description of the case's origin would actually reference wrongdoing on the part of CMP.
Further, CMP also casts itself as a change-maker of sorts to the justices, boasting that the group's "publication of recorded conversations with [Planned Parenthood] executives sparked national debate, widespread policy changes, and criminal prosecutions."
That take is directly at odds with the Ninth Circuit's characterization, which said that from the start of CMP's "scheme," it "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." Furthermore, at least two of the "criminal prosecutions" to which CMP referred were of its own leaders.
CMP also took a swipe at Planned Parenthood for filing its lawsuit as a response to "a public-relations nightmare," but noted with great import that Planned Parenthood "alleg[ed] fourteen common-law and statutory claims (but not defamation)[.]"
The First Amendment connection, if any
Indeed, Planned Parenthood did not sue CMP for defamation. Such a claim would have required Planned Parenthood to plead and prove that CMP acted with "actual malice"— a difficult standard to meet that would require a showing that CMP acted with at least reckless disregard for the veracity of its statements.
Now, CMP looks to the lack of defamation claims against it as grounds to overturn those claims Planned Parenthood did bring (and win).
CMP casts itself as a "whistleblower" and warns that if the First Amendment is not used to protect it from paying out millions in fraud damages, the case will be used as a "blueprint" for "the powerful and wealthy in particular," to stymie journalists and other whistleblowers with threats of "ruinous judgments." CMP argued that it was the recipient of an unfair $16 million judgment "all for using the same undercover techniques journalists have used for 150 years."
Its argument is that when Planned Parenthood sued to recover what were deemed "infiltration" and "security" damages in its tort lawsuit, those labels were mere "euphemisms" used to avoid admitting that it was suing over CMP's speech. In reality, says CMP, its own actions amounted to "investigative journalism" and the justices must overturn the Ninth Circuit's ruling or risk chilling free speech and "undercover journalism on critical issues of public debate," or "issue[s] of profound national importance."
A three-judge panel of the Ninth Circuit already considered this argument and found CMP's position to lack merit. The court decided that no First Amendment scrutiny whatsoever applies when a tort claimant purportedly seeks only non-reputational "economic damages."
In its ruling, the panel discussed the nexus between journalism and illegal conduct:
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.
Though CMP petitioned, the full Ninth Circuit declined to hear the case.
Planned Parenthood filed its brief in opposition to CMP's appeal on Aug. 22, in which it argued that CMP's First Amendment argument was flatly inapplicable. The millions in damages assessed against CMP were not for speech-related harm, but were meant to compensate Planned Parenthood for economic harms caused by fraud, trespass, breach of contract, unlawful recording, and violations of the civil RICO statute, said the health organization.
In fact, Planned Parenthood noted, the Ninth Circuit found that it "could have recovered the same damages even if [CMP] had never published the videos" — thereby eviscerating any speech-based arguments about CMP's "journalism."
CMP's petition for certiorari has potential to set up an interesting battle at the Supreme Court. Prior to the Court's overturning of Roe v. Wade in 2022, both the right to abortion and free speech were guaranteed by the First Amendment. Now, of course, availability of abortions has been relegated to a matter of state law, but aspects of abortion (such as the availability of mifepristone, prosecution of women who have abortions, and the concept of fetal personhood) are still very much matters of concern for the justices, six of whom have shown to be hostile to abortion rights.
Likewise, the Supreme Court under Chief Justice John Roberts has exhibited an increased willingness to extend protections to individual behavior under the banner of "free speech." The Court has allowed a Christian web designer to refuse service to same-sex couples — just as it allowed a Christian baker to do a few terms earlier — and protected the right of a Christian football coach to lead on-field prayers during games at a public high school.
Law&Crime reached out to counsel for both CMP and Planned Parenthood for comment, but did not receive a response.
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