A liberal federal judge barely salvaged First Amendment rights in a complicated decision involving secret videotapes, alleged racketeering, and the involvement of Planned Parenthood officials in the trade of body parts secured through abortions.
Many in the pro-life movement are understandably upset that District Judge William Orrick III of California assessed more than $1.5 million in damage payments against several pro-life activists who did an undercover video sting operation against Planned Parenthood. Orrick issued his decision on April 29, but the news received less coverage than one might have expected.
Closer examination, however, indicates Orrick’s decision was carefully calibrated. The actual monetary damages were ordered pursuant to jury verdicts finding the videographers guilty of violating the laws of multiple states and federal racketeering laws. For example, the videographers were found guilty of fraud for forging driver’s licenses and falsely signing attestations that they specifically would not videotape a specific conference of Planned Parenthood, the nation’s most active abortion provider.
I have no idea whether the jury trial was fairly conducted (although the fake IDs and false attestations appear indisputable), and I have serious doubts that the Racketeer Influenced and Corrupt Organizations Act was properly invoked. Still, considering those verdicts, the judge’s damage assessments did not appear outlandish. At issue in the main part of Orrick’s April 29 decision was the separate question of whether to issue an injunction barring the videographers from future activities and, if so, how broad the injunction should be.
Orrick essentially took the middle ground. While even a casual reader of the decision can easily detect real hostility from Orrick toward the pro-life cause, he actually slapped down Planned Parenthood on a considerable number of fronts. The abortionists had demanded an outrageously broad injunction amounting, in effect, to a ban on the videographers from recording Planned Parenthood almost anytime or anywhere. Orrick narrowed their requests considerably so that the ban would not apply in public forums and nationwide. Instead, it will apply only to recordings made either in “restricted areas” or that are obviously “private” and only to the jurisdictions or specific Planned Parenthood affiliates that were aggrieved by the original secret recording.
Again and again, Orrick declared Planned Parenthood’s legal citations in support of a broader injunction to be “inapposite” (not entirely relevant) and “overly expansive.” He said he was taking care to protect First Amendment protections (whether he protected them enough is open to question), and he made clear his order would not apply to certain circumstances in states that do not require that all parties consent to a recording.
Also, Orrick stressed that his decision absolutely refrained from an order that would “prevent defendants from recording anyone, at anytime, anywhere ‘in’ a ‘Planned Parenthood’ conference, office, or clinic.”
In sum, while Orrick and the jury have made these particular defendants big losers, they have not tried to protect abortionists from all “undercover” recordings attempting to show particular forms of perfidy beyond the abortions themselves. Journalists and even pro-life activists’ “sting” operations still might be allowable if they don’t break unambiguous laws while doing so.
This is thus not a total loss for pro-lifers or First Amendment rights. Not at all. And it cannot erase the opprobrium that should rain down on Planned Parenthood officials caught admitting on video that they perform partial-birth abortions to procure body parts for sale, even altering the way they conduct the procedure (at possible risk to the mother) to salvage those organs.
Abortions themselves are grisly enough. Some of these Planned Parenthood practices are ghoulish and ghastly as well. And entirely despicable.
