Frederick Burr Opper [Public domain], via Wikimedia Commons

November 19, 2019; San Francisco Chronicle

Back in 2015, Planned Parenthood was the target of a sting operation conducted by David Daleiden and the anti-abortion nonprofit called the Center for Medical Progress. Using false identities, the CMP released a video edited to make it appear as though Planned Parenthood was in the business of illegally selling fetal tissue. The release of this video intensified the sentiment that Planned Parenthood should no longer receive federal funds. A grand jury investigation and subsequent high-profile trial ended with Planned Parenthood cleared and Daleiden and CMP indicted. Daleiden was cleared of those charges, but the prospect of civil judgment remained.

Now, three years later, a San Francisco court has ruled that Daleiden, CMP, and a number of codefendants owe Planned Parenthood Federation more than $2 million in damages:

The jurors found that David Daleiden, his employee Sandra Merritt and their collaborators had violated state and federal laws against trespassing, fraud, clandestine recording and racketeering, as well as the nondisclosure agreements the two signed before entering the meetings. Jurors awarded Planned Parenthood more than $500,000 as compensation for the intrusions and $870,000 in punitive damages. Under federal racketeering law, most of the compensation will be tripled.

The jury deliberated for less than two days, after a six-week trial.

Supporters and nonprofit advocates on each side have chosen a particular frame to evaluate the story and the acts being punished. The National Abortion Federation sees it as a victory for pro-choice activism generally. Rev. Katherine Ragsdale, president and CEO, writes, “This jury verdict shows that the only people who committed any crime are David Daleiden and his co-conspirators, not abortion providers. It is time for elected officials to stop sopping for political points by bowing to anti-abortion extremists’ demands and treat them like the criminals that they are.” Acting Planned Parenthood President Alexis McGill Johnson said, “We are thrilled with today’s verdict. David Daleiden and the Center for Medical Progress intentionally waged a multi-year illegal effort to manufacture a malicious campaign against Planned Parenthood. The jury recognized today that those behind the campaign broke the law in order to advance their goals of banning safe, legal abortion in this country, and to prevent Planned Parenthood from serving the patients who depend on us.”

However, the religious community angle, as reflected in the press, seems to be that creating a nonexistent biotech company for the purposes of releasing a deceptively edited clip is a particularly overenthusiastic kind of undercover reporting, and has decried the judgment as an abridgment of journalistic freedom. A statement from Thomas More Society defense attorney Peter Breen says, “[Daleiden’s] investigation into criminal activity…utilized standard investigative journalism techniques, those applied regularly by news outlets across the country.” The CMP itself says, “This is a dangerous precedent for citizen journalism and First Amendment civil rights across the country, sending a message that speaking truth and facts to criticize the powerful is no longer protected by our institutions.”

According to Julia Cheever, writing for the Bay City News, “US District Judge William Orrick ruled before the trial, however, that journalism was not a defense against the claims of illegal acts including fraud, trespass and secret recording.” However, contrary to the NAF’s position that these “smear campaigns” also had material effects on abortion providers, “Orrick also ruled in advance that the defendants could not be held liable for any threats or violence against Planned Parenthood staff by third parties that allegedly resulted from the videos. He ruled the defendants could be held liable only for any costs to Planned Parenthood that they directly caused.”

Daleiden and Merritt still face felony charges, and they intend to appeal Orrick’s judgment.—Jason Schneiderman