Journalists in the Dock

There is much to be observed about this move on the part of Becerra, a former Democratic congressman from Los Angeles who was appointed to the state’s top law enforcement post after its previous Democratic occupant, Kamala Harris​—​who had begun the criminal investigation of Daleiden and Merritt—​was elected to the U.S. Senate. But one of the most salient observations is this: Becerra is one lucky prosecutor. Although nearly all states have anti-eavesdropping laws on their books that bar such devices as recorders and hidden cameras placed by third parties, in most of those states and in the District of Columbia people are free to record their own conversations with others without obtaining consent. California is one of only eleven states with a “two-party” anti-recording law. California requires “all parties to a confidential communication” to consent before the conversation can be filmed or recorded.

Becerra is also one aggressive prosecutor: Criminal prosecutions under that law appear to be relatively rare. Criminal prosecutions of journalists, whether they work for recognized media outlets or are self-described citizen-journalists like Daleiden and Merritt, appear to be rarer still. Nearly all the court rulings interpreting Section 632 involve civil lawsuits for damages brought by private individuals and corporations.

“It’s like criminal libel​—​the statutes exist, but prosecutions under them are very rare,” says Eugene Volokh, a University of California, Los Angeles, law professor whose specialty is the First Amendment’s protections for freedom of speech and religion. “There’s such a thing as prosecutorial discretion. The fact that government can do something doesn’t mean the government always does it.”

Daleiden, 28, is a veteran of the California-based anti-abortion organization Live Action, whose founder, Lila Rose, posed as a teenage abortion-seeker during the mid-2000s to uncover alleged legal violations at Planned Parenthood clinics in the Los Angeles area. He formed his own anti-abortion group, the Center for Medical Progress, in 2013 and embarked on an elaborate sting operation investigating the alleged selling of organs of aborted fetuses at Planned Parenthood clinics across the country. Planned Parenthood is America’s largest abortion provider, its clinics accounting for about a third of the 926,000 reported legal abortions performed in 2014.

In order to gain access to abortion providers’ conventions as well as street cred with Planned Parenthood executives, Daleiden created a fictitious fetal-tissue supply company, BioMax Procurement Services, complete with its own website, and obtained California driver’s licenses under the fictitious names he created for himself and Merritt, who is in her mid-60s. He learned the ins and outs of the fetal-tissue business by using a former employee’s password to access an email account of StemExpress Biomedical Supply, a Placerville, California, fetal-tissue supplier and then-partner of Planned Parenthood. Daleiden and Merritt set up a BioMax vendor’s booth at a National Abortion Federation convention in San Francisco in April 2014 and arranged meetings at restaurants with Planned Parenthood officials, who freely discussed abortion procedures and tissue-supply arrangements with their supposed would-be customers. Daleiden and Merritt secretly recorded the conversations.

In July 2015 the Center for Medical Progress started releasing the videos. Their contents, augmented by consented-to recordings of interviews with former Planned Parenthood and Stem-Express employees, were shocking. They revealed Planned Parenthood executives seemingly outlining special​—​and especially grisly​—​abortion techniques that would keep fetal organs intact while crushing limbs (raising ethical questions about informed patient consent) and seemingly haggling over appropriate reimbursement to Planned Parenthood clinics. In perhaps the most notorious of the tapes, Dr. Deborah Nucatola, then Planned Parenthood’s senior director for medical services, boasted, “We’ve been very good at getting heart, lung, liver,” while sipping wine and nibbling on a lunchtime salad. In another, Dr. Mary Gatter, a Los Angeles OB/GYN and president of Planned Parenthood’s medical directors’ council, joked, “I want a Lamborghini” when discussing the compensation Planned Parenthood ought to receive for processing and shipping the fetal body parts.

Planned Parenthood countered that the videotapes had been heavily and misleadingly edited. Daleiden later released the dozens of hours of unedited tapes, and while Fusion GPS, a Washington-based oppo-research team hired by Planned Parenthood to examine the edited videos, deemed them “useless” as evidence in legal proceedings, they concluded that the videos had not been tampered with manually and “analysis did not reveal widespread evidence of substantive video manipulation.” The idea that the tapes had been deceptively edited has nonetheless persisted in the Planned Parenthood-friendly liberal media.

Still, the tapes caused no end of embarrassment for Planned Parenthood and also for StemExpress, whose customers are typically university researchers. The Center for Medical Progress released, in August 2015, a video of another wine-sipping restaurant interview, this one with Cate Dyer, who founded StemExpress in 2010 and served as its CEO. Dyer noted that she could use another “50 livers a week” from a “volume institution” such as Planned Parenthood.

On August 14, 2015, StemExpress terminated its partnership with Planned Parenthood while insisting it had done nothing improper. On October 13, 2015, Planned Parenthood president Cecile Richards announced that her organization would stop taking money of any kind for fetal tissue and would simply donate the organs directly for research.

Trafficking in human body parts is a federal felony, but despite Daleiden’s efforts, it has so far proved impossible to make a legal case that Planned Parenthood clinics sold fetal organs for a profit, in contrast to receiving relatively modest reimbursements to cover their processing costs. Some 12 states, most of them headed by Republican governors, launched investigations prompted by the videos’ allegations. Nearly all came up empty-handed, although Florida uncovered instances of improper record-keeping concerning fetal remains, and three Planned Parenthood clinics in that state were fined for performing second-trimester abortions when it was licensed only for first-trimester abortions. Investigations in Arizona and Louisiana are apparently still ongoing.

An investigation ordered by Dan Patrick, Texas’s Republican lieutenant governor, went awry in January 2016, when a Harris County grand jury decided to take no action against Planned Parenthood and instead indict Daleiden and Merritt, charging them with felony tampering with government records (their fake driver’s licenses) and a misdemeanor count of illegally trafficking in human organs via BioMax. A judge threw out that latter charge in June 2016, and the following month the district attorney’s office withdrew the felony count on a legal technicality. That effectively ended the pair’s Texas prosecution.

Meanwhile Daleiden and Merritt have been the target of civil litigation by some of the taped parties. Stem-Express was the first to file, in July 2015, in an effort to obtain an injunction barring the release of the Dyer video. The suit alleged that the company had violated Section 632 in its undercover videotaping and had also interfered with StemExpress’s tissue-procurement business. A Los Angeles County superior court judge denied the injunction, citing the center’s free-speech rights under the First Amendment. In August 2015 the National Abortion Federation sued the center alleging violations of federal anti-racketeering statutes and related offenses in the federal district court in San Francisco, where the center’s videotaping at the 2014 convention had taken place. (Daleiden and Merritt had also videotaped conversations at the federation’s 2015 convention.) They also sought an injunction that would bar Daleiden from releasing the convention tapes. This time a federal judge upheld the injunction, pointing out that Daleiden had waived his First Amendment rights by signing a confidentiality agreement with the federation that barred the recording of any convention proceedings. On March 29, the day after Becerra filed his 15 felony charges, the famously liberal 9th U.S. Circuit Court of Appeals refused to dislodge that lower-court ruling, rejecting arguments by the center’s lawyers that the injunction amounted to an unconstitutional prior restraint on free speech.

The California prosecution will undoubtedly hinge on the factual question of whether the abortion providers were engaged in a “confidential communication” when they talked to Daleiden and Merritt. The statute defines “confidential communication” to exclude “a communication made in a public gathering,” so you might think Daleiden’s choice of public spaces for videotaping​—​restaurants and conventions​—​would spare him the brunt of the law.

Not necessarily so. Under the California supreme court’s leading decision interpreting Section 632, Flanagan v. Flanagan (2002), the standard is simply whether the recorded party “had an objectively reasonable expectation that the conversation is not being overheard or recorded,” period. That ruling is going to make it difficult, although perhaps not insurmountably difficult, for the two to mount a defense.

So what is left? There is the question of selective prosecution. It’s clear that Becerra’s multiple felony charges are unusual in the world of Section 632 litigation. Flanagan v. Flanagan is typical of the case-law: It involved a domestic dispute in which the second wife of a rich man recorded phone conversations between her husband and a son by his first wife who was convinced that the second wife had tried to hasten the death of her cancer-stricken husband in order to collect an inheritance. Some of the court opinions interpreting Section 632 involve undercover recording by journalists, but they all seem to be civil cases. “I don’t know of any journalists being criminally charged,” says Michael E. Kraut, a veteran criminal-defense lawyer in Los Angeles. Kraut said that he’d represented defendants facing criminal counts alleging illegal recording under Section 632, but “they’re usually people involved in a family situation or a business dealing.”

Indeed, in 2014 and 2015 an animal-rights organization, Mercy for Animals, surreptitiously videotaped incidents of alleged cruelty to chickens and ducks on California poultry farms. There was never any thought of a criminal prosecution of the group; the ensuing investigations were directed at the farms in question.

Furthermore, Section 632 is a “wobbler” statute in criminal-law jargon, which means that the prosecutor can choose to treat violations as either misdemeanors or felonies. Becerra chose the latter and piled on the counts. For this reason, a surprising range of liberal media pundits—​Slate‘s Mark Joseph Stern, Mother Jones‘s Kevin Drum, and the Los Angeles Times editorial board​—​who have zero sympathy for anti-abortion activists and who believe with the fervor of religious converts that the Center for Medical Progress videos were deceptively edited have strongly criticized Becerra’s crusade, which implicitly threatens all undercover journalism. The Times called it “disturbing overreach.” Drum wrote: “This was a legitimate investigation, and no level of government should be in the business of chilling it.”

Nonetheless, while selective prosecution may resonate emotionally, it’s “not an argument you can make in court,” says UCLA’s Volokh. “It’s not a legal argument.”

That goes in spades for journalists. The First Amendment protects the dissemination of news but not necessarily its gathering. Still, there are First Amendment defenses that can be mounted. Matthew Heffron, an Omaha-based former federal prosecutor who is working on Daleiden and Merritt’s defense team for the nonprofit Thomas More Society, called Becerra’s prosecution a “political show trial” and said there is a First Amendment concept called “viewpoint discrimination” in which “criminally prosecuting some expressions of political points of view but not others” could be unconstitutional.

“There is at least some constitutional protection” for undercover journalists who might break laws, says Alan Chen, a University of Denver law professor who has represented animal-rights activists fighting an “ag-gag” law in Idaho that forbids undercover videotaping of animal conditions on Idaho farms. “The court ruled that there is a limited First Amendment right to record on issues of public significance,” Abortion is obviously one of those issues, Chen said, although he added the caveat that such factors as “misleading editing” and “contractual agreements” not to record could muddy the waters for Daleiden and Merritt.

On January 4 the House Select Investigative Panel on Infant Lives released a 487-page report on the fetal-tissue procurement industry​—​sharply disputed by the panel’s Democratic minority​—​that in many ways validated the revelations of the Center for Medical Progress videotapes. The report, the result of interviewing numerous witnesses and reviewing subpoenaed documents, found evidence to support the following: that some Planned Parenthood affiliates had illegally realized profits on organ transfers by padding their expense invoices, that Planned Parenthood doctors had altered their abortion techniques to meet demands from tissue-supply firms, that Planned Parenthood’s consent forms were vague and tended to lead patients to believe that fetal tissue offered semi-miraculous disease cures, and that StemExpress and other tissue-procurement firms were reselling harvested organs at sky-high markups. The committee also stated that StemExpress might have destroyed documents that were the subject of the committee’s inquiries. A week after the committee released its report, StemExpress dropped its lawsuit against Daleiden and Merritt.

But that was the Republican Congress. California is California, and right now the state, except for a few rural corners, is a wholly owned subsidiary of the Democratic party, with a veto-proof Democratic legislative majority. “I stand with Planned Parenthood” is the mantra of the state’s (Democratic) cultural moguls in Silicon Valley and Hollywood. In September 2016 California’s Democratic governor Jerry Brown signed into a law a bill making it illegal to distribute audio or video recordings of health care providers without their consent​—​a law designed to ensure that there will be no more Centers for Medical Progress. Good luck, David Daleiden and Sandra Merritt.

Charlotte Allen is a frequent contributor to The Weekly Standard.