A legal history of exposés: From sausage-making to abortion

Later this week, a judge will hear arguments in a case against pro-life journalists brought by StemExpress, the company that until Friday contracted with abortion giant Planned Parenthood to harvest aborted babies’ body parts for scientific research. StemExpress claims the Center for Medical Progress violated California’s wiretapping laws when it took undercover videos of the company’s employees. But a California Superior Court judge last week said suppressing the videos’ release would be illegal prior restraint—censorship.

This case is just one in a long line of court challenges addressing the legality of undercover reporting by journalists.

Attorney Alan Chen represents animal-rights groups and journalists who made surreptitious videos of farm animals being abused in agricultural operations. Farm operators sued to stop the videos from being disseminated. But they lost last month, even though Idaho law made it illegal to surreptitiously make video recordings of agricultural operations.

“The judge in Idaho struck the law down as violating the First Amendment,” Chen said.

Judge Lynn Winmill cited the famous work of Upton Sinclair, who exposed the meat-packing industry in Chicago stockyards early last century. To do the reporting, Sinclair posed as a worker. His book The Jungle revealed terrible working conditions and unsanitary practices that led to current food-inspection laws.

In a more recent case, television reporters obtained jobs with the grocery chain Food Lion and then secretly recorded employees mishandling food.

“They bleached fish, put barbecue sauce on expired meat. They did lots of things that we would find unsavory if our grocers were doing them,” Chen said.

Food Lion sued in 1995, arguing reporters used false identities and told lies to get jobs. A jury handed Food Lion a win against the reporters—but after all the appeals were over, the grocer ended up getting only nominal damages “because Food Lion could not show it had suffered harm because reporters hired did their jobs while doing investigations.”

In other words, the reporters didn’t harm Food Lion; Food Lion harmed itself by engaging in practices the reporters brought to light. While false pretenses to gain employment may be wrong, the greater wrong was in deceiving the public about the food supply.

Although state laws differ, in general, no laws prohibit journalists from doing undercover investigations. It’s an area where technology is outpacing legal understanding.

“The average citizen can use his or her cellphone to make video recordings cheaply and upload to the Internet in the blink of an eye,” Chen said. “I think that’s going to present challenging issues in terms of promoting free speech and balancing that against the interests of privacy and property that are being compromised by people’s acts of recording.”

Attorneys with Alliance Defending Freedom (ADF) represent the Center for Medical Progress in two California cases. One involves StemExpress, and the other involves the National Abortion Federation. In both cases, undercover journalists shot video without consent.

For now, StemExpress appears to have lost its bid to prevent release of further videos. But in the other case, the National Abortion Federation won a temporary injunction against release of videos made at the group’s annual convention. The Center for Medical Progress rented a booth at the convention under a different name and claimed to be in the business of tissue procurement. That case is still pending.

“The public has the right to know what’s going on at Planned Parenthood facilities … because they’re funded with over $500 million per year,” ADF’s Tyson Langhoffer said. “They’ve been given over $4 billion of our money in the last decade. So, do they have the right to know that? Yes.”

On the political front, the Obama administration last week pushed back on behalf of Planned Parenthood. The White House warned states that have stopped Medicaid funding to Planned Parenthood they may be in violation of federal laws. Five states have now blocked such funding: Alabama, Arkansas, Louisiana, New Hampshire, and Pennsylvania.

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