The U.S. Supreme Court this week dealt yet another blow to anti-choice mythmaker David Daleiden and his years-long smear campaign against Planned Parenthood.
You may recall that Daleiden burst onto the scene back in 2015, with explosive (and false) allegations that Planned Parenthood affiliates were “selling baby parts”: illegally profiting from fetal tissue donations. After Planned Parenthood Federation of America (PPFA) filed a federal lawsuit in northern California alleging that Daleiden, his anti-choice front group the Center for Medical Progress (CMP), and others had engaged in conspiracy and racketeering to smear the reproductive health-care provider, Daleiden cried foul and tried to wrap himself in the cloak of the First Amendment.
He argued that Planned Parenthood’s lawsuit was really a a strategic lawsuit against public participation, or SLAPP suit, intended to silence him about PPFA’s nefarious plot. (I wrote an explainer about SLAPP suits in California here—but generally, they are lawsuits that plaintiffs file in order to bully a defendant and make them less likely to exercise their constitutional right to freedom of speech.)
Daleiden’s nonsensical petition for writ of certiorari begged the Supreme Court to wallow into the weeds and review the way that the Ninth Circuit interpreted California’s anti-SLAPP statute in a unique procedural context that is unlikely to arise again. (It’s so in the weeds that taking the time to explain it would put us both to sleep.) The bottom line is that the Ninth Circuit rejected Daleiden’s attempts to have Planned Parenthood’s lawsuit tossed out of court, and the Supreme Court refused to intercede. Still, the news was a reminder that David Daleiden—the low-rent James O’Keefe that he is—still exists, and he is still pretending that he’s an investigative journalist shedding light on some sinister plot between Planned Parenthood and other titans of Big Abortion to sell fetal tissue on the Dark Web.
None of his allegations have been proven. In fact, no state investigation—of which there were many—has found that Planned Parenthood engaged in any illegal activity or improper fetal tissue donation. But facts don’t seem to matter when it comes to Daleiden’s crusade against Planned Parenthood. Daleiden has cast himself as a whistleblowing investigative journalist. But there are no whistles to blow. And in his zeal to solidify his anti-PPFA narrative, Daleiden didn’t behave like a journalist.
David Daleiden was not acting as a journalist when he infiltrated private meetings held by the National Abortion Federation (NAF), secretly recorded meeting attendees, and then heavily edited and published those recordings to make it seem like Planned Parenthood staff were haggling over the price of fetal tissue and using their ill-gotten gains from their black-market dealings to buy Lamborghinis and expensive wine. He was creating propaganda for an audience already primed to believe Daleiden’s tall tales. And Daleiden was not acting as a journalist when he created a fake tissue procurement company in order to score prime exhibit booth space at NAF’s annual meeting, which would put him close to the abortion providers he intended to entrap in his videos.
It’s not just me saying so.
Journalist Ted Andersen published an article in the Columbia Journalism Review painstakingly detailing all the ways in which Daleiden is not a journalist. A group of 18 preeminent journalists and journalism scholars filed an amicus brief in NAF’s lawsuit against Daleiden, and they all agreed that “accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society.”
Even the lower court judge handling Daleiden’s litigation with both NAF and Planned Parenthood—U.S. District Court Judge William Orrick—has said, nope, you’re not a journalist. What he actually said (in an order blocking Daleiden from publishing any more material gained from NAF’s private meetings) was that the videos, “thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions,” which is essentially the judicial version of the Nelson laugh.
And even if he were a journalist, journalists are not exempt from consequences when they break the law in pursuit of news. In 1991, the Supreme Court in Cohen v. Cowles Media Company ruled that journalists are not exempt from generally applicable laws. Such laws include basic contract law like signing nondisclosure agreements pledging not to record NAF meeting attendees and not to release to the public any information obtained at NAF meetings. Daleiden did so, and then he broke his contract with NAF by making illicit recordings and publishing them.
Ultimately, the ongoing saga of Daleiden’s so-called Human Capital Project has been an embarrassment for Daleiden, and the Supreme Court’s refusal to review his case is the latest loss in a string of losses. But the project has not been entirely ineffective. States across the country have been trying to defund Planned Parenthood in the wake of Daleiden’s propaganda. Sometimes they’ve succeeded: Damned if it didn’t work in Ohio, for example, where the full Sixth Circuit sitting en banc ruled last month that the state could defund Planned Parenthood. And the Trump administration has gleefully tried to do the same with federal family planning funding. If successful, 2.4 million patients would reportedly lose access to care.
So while Daleiden’s campaign has not been a rousing success, it has provided state anti-choice legislators with the ammunition they need to pursue their white whale: Planned Parenthood.