Analysis

Free speech at stake in lawsuit against Center for Medical Progress

In July, the National Abortion Federation (NAF) sued the Center for Medical Progress (CMP) accusing CMP of using fake names, infiltration, and hidden cameras to obtain information about the abortion industry’s practices. San Francisco Judge William Orrick granted NAF a temporary restraining order to prevent the release of the tapes. Now, prior to Orrick’s issuing of a ruling in the case, he has stated that he believes the tapes “do not show criminal activity and could put the providers at risk,” according to the Associated Press. Orrick, in his comments, “cit[ed] the recent shooting at a Colorado Planned Parenthood clinic.”

While efforts to suppress the videos were making their way through the courts, GotNews.com somehow obtained the tapes and published them. And so far, no abortionist has been directly threatened as a result, said Catherine Short, CMP’s attorney…

Orrick… [said] doctors who have appeared in videos released by the center have received death threats. He also cited suspected arson at abortion clinics and the November shooting at the Colorado Springs Planned Parenthood clinic that left three people dead and nine wounded.

Catherine Short, an attorney for the Center for Medical Progress, said there was no evidence the Colorado shooter was motivated by the group’s videos or that doctors have been directly threatened. The release of the recordings is vital to furthering public discussion about topics such as whether the country’s abortion laws are too loosely written, she said. The center says in court documents its work is the equivalent of investigative journalism and protected by the First Amendment.

And, Short is correct, investigative journalism is not only protected by the First Amendment but the tactics used by CMP have been used by journalists in all sorts of investigations as Live Action News has detailed here. In fact, free speech issues in this case are so great that the U.S. Reporters’ Committee filed a ‘friend of the Court’ submission before the district court hearing NAF’s case:

We are compelled to write at this early juncture because any prior restraint on speech that is issued by a court has the potential to significantly affect the First Amendment rights of the news media and the public at large. The ramifications of having such a restraint in place go well beyond the unique facts of this dispute.

In their lawsuit, NAF claimed that CMP infiltrators “snuck into” their allegedly secure and supposedly private meetings to obtain video evidence that their members were buying fetal tissue. In response to the lawsuit, CMP claimed that their investigators conducted their investigation legally, and that NAF welcomed lead investigator David Daleiden and the other investigators as dealers in fetal tissue believing that Daleiden’s test company, BioMax, would pay abortion providers for fetal specimens. “NAF even provided Daleiden unsolicited information about the meeting’s agenda and location,” attorneys for CMP stated.

Pro-lifers who have viewed the leaked tapes say that the NAF lawsuit is equivalent to censorship because NAF does not want the public to know the truth about abortion. The videos show plenty of evidence that NAF members were not only involved in harvesting fetal tissue but were holding presentations about the process during their meetings. A sampling of a few of the recordings show:

  • Conference attendees applauding  horrific late-term abortion procedures
  • NAF held presentations on harvesting aborted baby parts
  • NAF members and a majority of the women they service know  they are killing a baby
  • Abortion clinics dispose  of preborn children in garbage disposals
  • Burning aborted babies for energy fuel  may really be happening
  • A cold and callous disregard for the dead
  • A Planned Parenthood abortionist and NAF attendee admitted being involved in fetal tissue research with, “independent/individual researchers”

Tom Brejcha, Thomas More Society President and Chief Counsel, which presented arguments against NAF in the case, agreed, and in a press release, accused NAF of working with Planned Parenthood to suppress Daleiden’s First Amendment rights, stating:

Equally as any other investigative journalist working for ABC, NBC, CBS, Fox News, or your local print or electronic media outlet may regularly resort to undercover journalism tactics to ferret out hidden crime, so too David Daleiden should have the right to penetrate the criminal underworld of America’s abortion providers and report all the evidence he has uncovered of criminal wrongdoing to law enforcement and to members of the public.

Also from the press release:

The brief that Thomas More Society and co-counsel have filed on behalf of Daleiden in opposition to NAF’s preliminary injunction includes:

Information about the precedent set by the recent Animal Legal Defense Fund v. Otter case, where the 9th Circuit ruled definitively that investigative journalism is not “fraud” and fully protected by the First Amendment.

Admissions from NAF and Planned Parenthood abortion providers about their criminal participation in trafficking in aborted baby body parts documented at NAF meetings, redacted from the public filing and prevented from release by court order.

The blatantly unconstitutional character of prior restraints on speech.

“If NAF wins this case, criminals will rejoice and journalists will weep,” Brejcha said.

Both sides are watching for the decision to be released.

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