Free speech battles can make strange bedfellows. This month, People for the Ethical Treatment of Animals (PETA) joined with two other animal-rights groups in supporting pro-life undercover journalist David Daleiden, whose sting videos revealed Planned Parenthood officials’ attempts to sell aborted baby body parts. Planned Parenthood employees sued and a judge ordered Daleiden to pay them $15.8 million. Daleiden appealed, the Ninth Circuit Court of Appeals took up the case, and a broad array of advocacy groups and attorneys general have filed briefs in support of Daleiden.
PETA’s involvement may seem surprising, but the animal-rights groups rightly warn that the district court’s $15.8 million ruling against Daleiden endangers the freedom of speech. Animal-rights groups have long opposed agricultural-gag (or “ag-gag”) laws protecting the agriculture industry from investigative reporting aimed at exposing animal mistreatment. If Planned Parenthood can silence Daleiden, agriculture companies can silence PETA, or so the argument goes.
“The use of deception for undercover investigative reporting on matters of public concern is constitutionally protected speech. The U.S. Supreme Court has rejected the view that there is an exception to the First Amendment for ‘false statements.’ But the district court in this case ignored free speech principles and approved a near categorical common law right to punish persons who engage in deception-based investigations,” PETA and the other organizations warned in their amicus brief.
“If such a view stands, civil claimants leveraging misapplied generally applicable laws through litigation will accomplish exactly what this Court has said cannot be done through industry-specific legislation like agricultural-gag (ag-gag) statutes: namely, to quash investigative reporting speaking on matters of the highest public concern,” the organizations argued.
In the amicus brief, PETA joined with Animal Outlook, Mercy For Animals, Inc. (MFA), and the Government Accountability Project (GAP). The groups highlighted the importance of undercover reporting.
“From Mortimer Thompson’s firsthand accounts of the slave trade leading up to the Civil War, to Nellie Bly’s graphic translation of her time in Blackwell’s Island Insane Asylum, to Upton Sinclair’s exposé of the meat-packing industry, investigative reporting is responsible for bringing to public view some of the most pressing matters in the last 150 years,” they argued.
U.S. District Judge William Orrick III awarded Planned Parenthood employees $2.2 million in damages in order to pay for increased security costs in the RICO lawsuit, even though the Supreme Court has ruled that the First Amendment bars reputation damages for non-defamation claims. PETA argued that this essentially legal jiu jitsu will chill free speech.
“First, such costs serve as a stand-in for direct publication damages and could severely limit undercover reporting as a result. Second, to the extent, as the district court acknowledged, added security costs stem from public anger over the revealed conduct, these alleged harms are inseparable from the public’s response to the published information (underscoring that this is a matter of public concern). Third, allowing such claims for added security measures will provide future targets a roadmap for investigative subjects to deter undercover reporting,” the brief argues.
“Thus, the but-for motivation for the security is the constitutionally protected conduct,” and therefore the 9th Circuit should reverse the lower court’s ruling.
The PETA brief came amid a slew of amicus briefs filed on March 5, 2021, in the case Planned Parenthood Federation of America et al. v. Center for Medical Progress, et al. Americans United for Life, Live Action, Project Veritas and Project Veritas Action, and Judicial Watch also filed briefs supporting Daleiden.
“There are myriad reasons to reverse this civil judgement, including that Planned Parenthood admitted in court that Mr. Daleiden’s videos were authentic,” Peter Breen, vice president and senior counsel for the Thomas More Society, which represents Daleiden, said in a statement. “However, we were forbidden any defense based on the truth of what Daleiden’s investigation uncovered.”
In another key notable brief, the attorneys general of 20 different states — Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia — argued that the district court’s ruling rests on a crooked foundation.
In ruling against Daleiden, “the district court relied extensively on its assertion that the CMP Videos contain ‘no evidence of actual criminal wrongdoing.’ That not only is incorrect on its own merits but also employs the wrong test. The public policy defense is applicable to the claims presented, and its appropriate adjudication must assess the substantial law enforcement and policy consequences of the release of the CMP Videos.”
“Multiple congressional bodies, as well as state and local jurisdictions, investigated [Planned Parenthood] and other industry entities after the release of the CMP Videos,” the attorneys general wrote. “Texas terminated Planned Parenthood’s participation in its Medicaid program. The Orange County District Attorney prosecuted firms for the sale of fetal tissue which exclusively acquired such tissue from Planned Parenthood. The Arizona Attorney General investigated a firm which was a case study in the congressional report for how the fetal tissue transfer industry operates, and the Arizona Legislature ultimately proscribed most fetal tissue transfers.”
Noting that David Daleiden’s abortion sting videos made a big impact on America’s public policy debate would be an understatement. Like the undercover work of Upton Sinclair, Daleiden’s sting videos drew Americans’ attention to an important truth: the tiny human bodies that are the key byproduct of abortion.
The Planned Parenthood lawsuit is not the only attack on David Daleiden. In 2016, then-California Attorney General Kamala Harris, now Biden’s vice president, directed her office to search Daleiden’s home, seizing his video footage and preparing a legal case against him. In 2017, Harris’s successor, Xavier Becerra (another politician bankrolled by Planned Parenthood), filed 15 felony charges against CMP and Daleiden. The Thomas More Society is defending Daleiden in five different legal cases.
Daleiden deserves accolades, not a court judgment ordering him to pay $15.8 million to the very people whose horrific treatment of aborted babies he worked to expose. The attorneys general, pro-life groups, and animal rights groups like PETA are right to warn that this horrific verdict will chill undercover journalism. The 9th Circuit Court of Appeals should reverse this ruling, or, failing that, the Supreme Court should correct this egregious attack on free speech.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.