Pro-life activist heads to court to defend undercover videos

Next week, pro-life activist David Daleiden will go to court to defend his right to release undercover video footage taken at a national abortion conference. It’s a case his lawyers say could have broad implications for First Amendment protections for free speech and freedom of the press.

Daleiden, president of the Center for Medical Progress (CMP), faces two lawsuits related to his release of undercover video footage showing Planned Parenthood’s involvement in the fetal tissue trade.

In the first suit, filed by the tissue procurement company StemExpress, a California court dismissed a temporary restraining order that prevented Daleiden from releasing footage of StemExpress employees.

But in the suit filed by the National Abortion Federation (NAF), a temporary restraining order remains in place until District Court Judge William Orrick III hears arguments Dec. 18 on a preliminary injunction. Attorneys with Life Legal Defense Foundation and the Thomas More Society (TMS) are preparing to defend Daleiden’s First Amendment rights.

“It’s a major test of really fundamental First Amendment doctrines,” said Tom Brejcha, TMS president and chief counsel.

NAF’s lawsuit, filed July 31 in California district court, seeks a permanent injunction against videos released by CMP. Earlier that month, the pro-life group began releasing undercover videos that allege Planned Parenthood, with NAF support, illegally profited from selling aborted fetal tissue, a federal crime. Planned Parenthood denies the claim but has since announced it will no longer accept any money for tissue “donated” for scientific research.

In its lawsuit, NAF called Daleiden a “racketeer” who fraudulently accessed private NAF meetings and stole information.

Daleiden’s team of investigators posed as workers for BioMax Procurement Services LLC, a fictitious fetal tissue procurement company. NAF first learned about BioMax in 2013, and invited it to attend and exhibit at NAF’s 2014 Annual Meeting. To attend the meeting, Daleiden and some of his team signed non-disclosure contracts.

At the meeting, BioMax gained attention in the abortion industry by telling NAF members and staff that it would pay more than competitors for fetal tissue. From there, Daleiden gained his information legally and has the right to disseminate it to the public, his lawyers maintain.

Life Legal Defense Foundation (LLDF) contends NAF welcomed Daleiden and his team into its inner circle.

“NAF unwittingly rolled out the red carpet for BioMax because NAF believed they were illegal dealers in fetal tissue,” said Catherine Short, LLDF’s president and Daleiden’s lead counsel. “It’s time for the National Abortion Federation to admit the truth: they were completely taken in by a legitimate undercover investigation, and yes, they were uncovered.”

The contracts signed by Daleiden and his team don’t legally trump First Amendment rights, added Brejcha.

CMP employed tactics commonly used by investigative journalists to penetrate “the cloak of secrecy that often conceals matters of grave importance,” he said. CMP has the right to disseminate its evidence of criminal activity, and the public has the right to know, Brejcha added.

Though NAF has argued the information puts them at risk for retaliation similar to the recent shooting at a Colorado Springs, Colo., Planned Parenthood facility, Brejcha said speculation on a third party’s actions “can’t be used as the basis for suppressing free speech.”

While the NAF’s case has dragged on for nearly six months, the abortion group has not been able to prevent the videos taken at its meeting from being released. A conservative news site published the videos in October, claiming it obtained them from an anonymous congressional staffer who had access to the footage as part of lawmakers’ ongoing investigation into Planned Parenthood and the fetal tissue trade.