First Amendment won’t shield defendants in Planned Parenthood scandal

January 27, 2016

We journalists like to think we are special. We are cloaked in the First Amendment. We are a pillar of liberty. If Thomas Jefferson had been forced to choose between a government without newspapers or newspapers without a government, he’d have sided with us.

But we are not above the law.

On Monday, the Houston district attorney’s office announced a grand jury indictment against David Daleiden and Sandra Merritt, anti-abortion activists who secretly filmed officials at a Planned Parenthood office in Houston. Daleiden and Merritt stand accused of using phony California driver’s licenses to defraud the healthcare provider. As Reuters has reported, the pair posed as researchers in an attempt to obtain evidence Planned Parenthood was illicitly selling fetal tissue.

Daleiden’s group, the Center for Medical Progress, said in a statement Tuesday that he used “the same undercover techniques that investigative journalists have used for decades” and is protected by the First Amendment. One of his defense lawyers, Charles LiMandri of the Freedom of Conscience Defense Fund, issued a statement Wednesday reiterating that Daleiden and Merritt are “investigative journalists … using standard, and legal, undercover investigative techniques.” The law they are accused of breaking, LiMandri’s statement said, “was never intended to act as a means of preventing undercover journalists from doing their jobs. Rather, the law was intended to stop people like identity thieves from stealing Social Security checks from seniors.”

Those arguments won’t do Daleiden and Merritt much good as a matter of law, according to the experts I talked to Wednesday: First Amendment scholars Jane Kirtley of the University of Minnesota and Eugene Volokh of the University of California; Nicole Casarez, a lawyer and journalism professor at the University of St. Thomas in Houston; and George Freeman, a former New York Times assistant general counsel who is now executive director of the Media Law Resource Center.

“The law against fraud applies to everybody, whether you’re a journalist or not, Casarez said. “There’s no First Amendment right to fake a driver’s license.”

It is true, as Daleiden’s statement said, that some news organizations have used deception in undercover reporting. (Reuters explicitly forbids reporters to misrepresent ourselves, though our policy says that, in certain circumstances, “it may be appropriate” to allow an “assumption” about our identity to persist.) The most famous modern litigation over undercover reporting is probably a suit by the grocery chain Food Lion against ABC, which had sent Prime Time Live journalists to work under false identities in Food Lion stores.

A federal court jury found ABC liable for fraud and other wrongs. In 1999, the 4th U.S. Circuit Court of Appeals reversed the fraud judgment against the network but upheld trespass and breach of duty judgments against the reporters, citing the U.S. Supreme Court’s 1991 opinion in Cohen v. Cowles Media. (The Cohen case held that the First Amendment didn’t protect the Minneapolis Star from liability to a confidential source whose identity the newspaper revealed.) “We are convinced that the media can do its important job effectively without resort to the commission of run-of-the-mill torts,” the 4th Circuit said in the Food Lion case.

Daleiden and Merritt are accused of crimes, not torts, but in the 2000 case Lawrence Matthews v. U.S., the 4th Circuit said the First Amendment “provides no defense” for breaking the law to conduct journalistic research. A veteran broadcast journalist who had produced a radio expose on Internet child sex trafficking, set up a chatroom called SugarDad4yFem. Many of his conversations turned out to be with undercover federal agents, who accused him of sending or receiving more than 160 pornographic images of children.

Matthews said he was acting as a journalist, working with the FBI to infiltrate child porn rings. He argued that the law he was charged with violated his free speech rights because it did not require the government to show his “morally blameworthy” state of mind. The appeals court didn’t buy it, partly because of the deep public interest in protecting children.

Kirtley, the Minnesota professor, mentioned two other cases in which journalists were prosecuted for reporting tactics. Demetria Martinez was charged with helping two Salvadoran women enter the U.S. illegally. She asserted the First Amendment, arguing that she was reporting a piece on the sanctuary movement. The charges stood, although Martinez was acquitted in a jury trial in New Mexico in 1988.

Cincinnati Enquirer reporter Michael Gallagher, on the other hand, pleaded guilty in 1998 to illegally accessing Chiquita’s voicemail system. He had published an explosive series on the company’s business practices in South and Central America, claiming to have obtained voicemail recordings from a high-ranking Chiquita source. The newspaper ended up running a front-page apology to Chiquita and paying the company several millions of dollars.

Journalistic intentions, in other words, aren’t of much consequence under the law. They may, however, help Daleiden and Merritt at sentencing, if their case comes to that. UCLA professor Volokh, who has blogged about the Planned Parenthood indictment, said a Texas jury may be swayed by arguments about the activists’ motives. (In Texas state court, he said, juries decide sentences.)

Will the indictment of Daleiden and Merritt chill investigative reporting? It might, said Kirtley and Volokh, at the margins. “If these people are convicted there is a risk,” Kirtley said. “Anytime courts are given the opportunity to scrutinize the press … I worry about dicta.”

But Mark Horvit, executive director of the nonprofit Investigative Reporters & Editors, said he’s not concerned. “If the law is that you can’t create a fake government document, well, that is already the law,” he said. “In most newsrooms, that’s already something you can’t do … Generally speaking, it’s not a good idea for journalists to lie to people.”

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