Fiscally Conned, Socially Conned: The Con Game of Conservative Talking Points

Scott Swenson

As the reality of governing-by-deregulation-talking-points trickles down upon us, is it too much to hope that voters might see through social conservative talking points too?

As the reality of governance by fiscal conservative talking points about deregulation trickles down upon us, is it too much to hope that voters might see through social conservative talking points too? Neither set of talking points has changed in almost 30 years.

Conservative New York Times columnist David Brooks talks about it as the destruction within the Republican Party with respect to the economic stabilization plan:

House Republicans led the way and will get most of the blame. It
has been interesting to watch them on their single-minded mission to
destroy the Republican Party. Not long ago, they led an
anti-immigration crusade that drove away Hispanic support. Then, too,
they listened to the loudest and angriest voices in their party,
oblivious to the complicated anxieties that lurk in most American minds.

Now they have once again confused talk radio with reality. If this
economy slides, they will go down in history as the Smoot-Hawleys of
the 21st century. With this vote, they’ve taken responsibility for this
economy, and they will be held accountable. The short-term blows will
fall on John McCain, the long-term stress on the existence of the
G.O.P. as we know it.

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I’ve spoken with several House
Republicans over the past few days and most admirably believe in
free-market principles. What’s sad is that they still think it’s 1984.
They still think the biggest threat comes from socialism and Walter
Mondale liberalism.

Talk radio. Fear-mongering lying email forwards. Distortions of fact and outright misinformation have been the tools of the conservative movement.  At least the fiscal conservative talking points were based on an economic theory, however discredited it is. Social conservative talking points are, and always have been, total fiction.

These people truly put the "con" in conservative.

At least a couple of social conservative talking points are already punch lines that need no explanation:

  • Intelligent Design should be equated with science
  • Abstinence-only-until-marriage programs work

VIDEO: Comprehensive Sex Ed vs. Abstinence-OnlyVIDEO: Comprehensive Sex Ed vs. Abstinence-Only
Both of those concepts threaten the education of our youth, robbing many children of critical thinking skills, lessons about functioning in the real world, respect, and personal responsibility. As we are witnessing, those are important lessons to learn if you want to actually govern in the 21st Century.  In a culturally diverse and changing global economy dominated by math and science, these programs are the epitome of the dumbing down of America.

I say that as a Christian and an American, tired of seeing faith and patriotism demeaned by those who abuse both to gain and hold political power. Forgiveness is an important lesson many faiths teach, and important for us all to remember as the reality of conservative talking points hits the fan.

Another social conservative talking point, not yet as familiar to Americans not paying close attention:

  • Contraception is the same thing as abortion

VIDEO: Emergency Contraception is Not AbortionVIDEO: Emergency Contraception is Not Abortion
Within a few weeks, the Bush Administration may issue a ruling that allows individual doctors to determine that based solely on their personal beliefs, not medical facts. They have attacked contraception at home and abroad during two terms in office.

Giving the benefit of the doubt to people who truly believe that life begins at conception, as an article of faith, meaning that every sperm and egg is sacred, and every fertilized egg a person — I can see how some people believe this.  But that is a narrow belief and as such, is not something to be codified into law.  Social conservatives cannot abuse our democracy to pursue their personal faith. We’re not electing spiritual leaders, but someone to govern, with liberty and justice for all. It is important government leads from a place of respect for faith, based on core values culled from our diverse experiences, not political posturing dressed up in "value voter" drag. History hasn’t been kind to people who impose their belief, religious or political, on every other person. 

As a result of fiscal conservative policies, it is more important than ever that people plan their families. Out of work without disposable income, couples have lots of time on their hands. We should work to make contraception more, not less, accessible or prepare for  the Bush Bust Baby Boom, a fitting legacy.

Secretary Leavitt, why don’t you find an ounce of respect for the 98% of American women (and their partners) who use contraception at some point in their lives, and let their conscience be your guide?

One of my personal favorite social conservative talking points is:

  • People "choose" to be gay


The irony? Even though they are wrong, finally social conservatives are pro-choice!

The hypocrisy? Social conservatives would likely use advances in genetic engineering and stem cell research, which they love to rail against, to "pray away the gay" scientifically, if they could. 

I’ve been gay all my life. I chose to be honest about it after working through the lies told by the far-right and accepting myself.  I also chose to be a Christian, and have had that choice tested by far-right hatred and condemnation.  The only time I was ever truly tested about my sexuality was with the woman I chose to be honest with about my life before engaging hers with mine. She is amazing and if it was nothing but a choice, would have made it very easy. Jesus is amazing too, and both she and he loved me exactly as I am, even in the face of such anti-Evangelism as is spewed from the far-right. But somehow the far-right during the election portrays their side as "victims" who are "threatened." Which leads to their next talking point:

  • America was founded as a Christian Nation

Wow.  It’s a not a big leap from dinosaurs and man walked the earth at the same time to this one, I suppose.  Technically, if this was true, we’d all be Anglicans. For all their schisms, at least Anglicans keep their food fights within their own lunchroom.  Or we could all be Iroquois, since our Constitution was modeled in part on the Iroquois Confederacy, tribes who understood deep faith, spirituality and respect for earth and all beings.

Why must these mega-televised-dominionist religions usurp a perfectly good democracy and run it into the ground with such bitter political division, resulting in the most socially conservative president in history unable to lead his own party during a time of fiscal crisis?  Could we get a little equal time for Buddha’s Four Noble Truths if every talk show host and pundit feels it necessary to run through the Baltimore Catechism, or if special interest lobbyists for the Catholic Conference of Bishops are going to have de facto veto power in Congress and state legislatures? Could we get more than an obligatory reference to Jewish Holy Days?  If Evangelical preachers get to moderate political debates, how about at least acknowledging peace loving Muslim-Americans instead of equating them all with terrorists?

America was founded on religious freedom because of people escaping religious persecution. Of all people, the social conservative descendants of Puritans, and the warped ideas about human sexuality that came with them, should know that.

But all social cons care about, they claim, is abortion.

  •  Abortion is …

VIDEO: Does Life Begin at Fertilization?VIDEO: Does Life Begin at Fertilization?
The truth is the anti-choice movement has a million abortion talking points and only one of them is true. Abortion can hurt. It hurts being stigmatized for having an abortion, for making the best choice for yourself or your family about an unintended pregnancy in a difficult moment. Not being able to get an abortion hurts too, women all over the world, and will again in the US if Roe is overturned and a federal abortion ban passed. Abortion hurts our democracy, making it impossible to govern, as we now see in the midst of a fiscal crisis — so wed to ideology and talking points are conservatives that they cannot imagine how to do anything but obstruct. 

We can disagree about abortion and live lives true to our individual values, working to reduce unintended pregnancy, without undermining our entire political system, but social conservatives will not rest until their talking points on abortion are imposed on every American.

New York Times columnist Thomas Friedman wrote about the division in Congress saying,

I always said to myself: Our government is so broken that it can only
work in response to a huge crisis. But now we’ve had a huge crisis, and
the system still doesn’t seem to work. Our leaders, Republicans and
Democrats, have gotten so out of practice of working together that even
in the face of this system-threatening meltdown they could not agree on
a rescue package, as if they lived on Mars and were just visiting us
for the week, with no stake in the outcome.


In the past two years some politicians have attempted to move beyond talking points toward common sense. Pro-choice members of both parties along with pro-life Democrats worked together to propose ideas like the Prevention First Act, the Responsible Education About Life Act, Access to Birth Control Act, the Unintended Pregnancy Reduction Act and other common sense ideas. The reality is, social conservatives have demonstrated as much interest in working on common sense policies to reduce unintended pregnancies, as fiscal conservatives have been willing to provide adequate oversight to the wild lending products that created this credit crisis. Not at all. They stuck to their talking points. In this election, social conservative talking points are on overdrive on talk radio, in emails, in misinformation and we see how shallow the talking points are.

People should believe what they believe, and live their life in good conscience, but to govern the United States of America in the 21st Century by shallow talking points is frightening.

Washington is broken. It is time for those who broke it to accept personal responsibility.

We see what the politics of personal destruction, divided government, and fiscal conservative talking points can achieve, do we really want to overturn Roe v. Wade, make contraception illegal, subjugate women, continue discriminating against gay citizens, play on racial and ethnic fears, and teach Intelligent Design and abstinence-only-until-marriage — as official US government policy? Do we really need to experience more governance by social con ideology and talking points before we understand what it means to lose our individual liberty?

When will we put an end to the con game and stop governing by talking points and find common ground for policies that actually work in America’s pluralistic democracy? 

As soon as we stop electing people who govern by talking points.

Analysis Politics

Anti-Choice Democrats Employ ‘Dangerous,’ Contradictory Strategies

Ally Boguhn & Christine Grimaldi

Democrats for Life of America leaders, politicians, and rank-and-file supporters often contradict each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party's platform is newly committed to increasing abortion access for all.

The national organization for anti-choice Democrats last month brought a litany of arguments against abortion to the party’s convention. As a few dozen supporters gathered for an event honoring anti-choice Louisiana Gov. John Bel Edwards (D), the group ran into a consistent problem.

Democrats for Life of America (DFLA) leaders, politicians, and rank-and-file supporters often contradicted each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party’s platform is newly committed to increasing access to abortion care for all.

DFLA leaders and politicians attempted to distance themselves from the traditionally Republican anti-choice movement, but repeatedly invoked conservative falsehoods and medically unsupported science to make their arguments against abortion. One state-level lawmaker said she routinely sought guidance from the National Right to Life, while another claimed the Republican-allied group left anti-choice Democrats in his state to fend for themselves.

Over the course of multiple interviews, Rewire discovered that while the organization demanded that Democrats “open the big tent” for anti-choice party members in order to win political office, especially in the South, it lacked a coordinated strategy for making that happen and accomplishing its policy goals.

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Take, for example, 20-week abortion bans, which the organization’s website lists as a key legislative issue. When asked about why the group backed cutting off abortion care at that point in a pregnancy, DFLA Executive Director Kristen Day admitted that she didn’t “know what the rationale was.”

Janet Robert, the president of the group’s executive board, was considerably more forthcoming.

“Well, the group of pro-life people who came up with the 20-week ban felt that at 20 weeks, it’s pretty well established that a child can feel pain,” Robert claimed during an interview with Rewire. Pointing to the U.S. Supreme Court’s ruling in Roe v. Wade, which protected the right to legal abortion care before the point of fetal viability, Rogers suggested that “more and more we’re seeing that children, prenatal children, are viable around 20 to 22 weeks” of pregnancy.

Medical consensus, however, has found it “unlikely” that a fetus can feel pain until the third trimester, which begins around the 28th week of pregnancy. The doctors who testify otherwise in an effort to push through abortion restrictions are often discredited anti-choice activists. A 20-week fetus is “in no way shape or form” viable, according to Dr. Hal Lawrence, executive vice president of the American Congress of Obstetricians and Gynecologists.

When asked about scientific findings that fetuses do not feel pain at 20 weeks of pregnancy, Robert steadfastly claimed that “medical scientists do not agree on that issue.”

“There is clearly disagreement, and unfortunately, science has been manipulated by a lot of people to say one thing or another,” she continued.

While Robert parroted the very same medically unsupported fetal pain and viability lines often pushed by Republicans and anti-choice activists, she seemingly acknowledged that such restrictions were a way to work around the Supreme Court’s decision to make abortion legal.

“Now other legislatures are looking at 24 weeks—anything to get past the Supreme Court cut-off—because everybody know’s it’s a child … it’s all an arbitrary line,” she said, adding that “people use different rationales just to get around the stupid Supreme Court decision.”

Charles C. Camosy, a member of DFLA’s board, wrote in a May op-ed for the LA Times that a federal 20-week ban was “common-sense legislation.” Camosy encouraged Democratic lawmakers to help pass the abortion ban as “a carrot to get moderate Republicans on board” with paid family leave policies.

Robert also relied upon conservative talking points about fake clinics, also known as crisis pregnancy centers, which routinely lie to patients to persuade them not to have an abortion. Robert said DFLA doesn’t often interact with women facing unplanned pregnancies, but the group nonetheless views such organizations as “absolutely fabulous [be]cause they help the women.”

Those who say such fake clinics provide patients with misinformation and falsehoods about abortion care are relying on “propaganda by Planned Parenthood,” Robert claimed, adding that the reproductive health-care provider simply doesn’t want patients seeking care at fake clinics and wants to take away those clinics’ funding.

Politicians echoed similar themes at DFLA’s convention event. Edwards’ award acceptance speech revealed his approach to governing, which, to date, includes support for restrictive abortion laws that disproportionately hurt people with low incomes, even as he has expanded Medicaid in Louisiana.

Also present at the event was Louisiana state Rep. Katrina Jackson (D), responsible for a restrictive admitting privileges law that former Gov. Bobby Jindal (R) signed into law in 2014. Jackson readily admitted to Rewire that she takes her legislative cues from the National Right to Life. She also name-checked Dorinda Bordlee, senior counsel of the Bioethics Defense Fund, an allied organization of the Alliance Defending Freedom.

“They don’t just draft bills for me,” Jackson told Rewire in an interview. “What we do is sit down and talk before every session and see what the pressing issues are in the area of supporting life.”

Despite what Jackson described as a commitment to the constitutionality of her laws, the Supreme Court in March blocked admitting privileges from taking effect in Louisiana. Louisiana’s law is also nearly identical to the Texas version that the Court struck down in June’s Whole Woman’s Health v. Hellerstedt decision.

Jackson did not acknowledge the setback, speaking instead about how such measures protect the health of pregnant people and fetuses. She did not mention any legal strategy—only that she’s “very prayerful” that admitting privileges will remain law in her state.

Jackson said her “rewarding” work with National Right to Life encompasses issues beyond abortion care—in her words, “how you’re going to care for the baby from the time you choose life.”

She claimed she’s not the only Democrat to seek out the group’s guidance.

“I have a lot of Democratic colleagues in my state, in other states, who work closely with [National] Right to Life,” Jackson said. “I think the common misconception is, you see a lot of party leaders saying they’re pro-abortion, pro-choice, and you just generally assume that a lot of the state legislators are. And that’s not true. An overwhelming majority of the Democrat state legislators in our state and others are pro-life. But, we say it like this: We care about them from the womb to the tomb.”

The relationship between anti-choice Democrats and anti-choice groups couldn’t be more different in South Dakota, said state house Rep. Ray Ring (D), a Hillary Clinton supporter at DFLA’s convention event.

Ring said South Dakota is home to a “small, not terribly active” chapter of DFLA. The “very Republican, very conservative” South Dakota Right to Life drives most of the state’s anti-choice activity and doesn’t collaborate with anti-choice Democrats in the legislature, regardless of their voting records on abortion.

Democrats hold a dozen of the 70 seats in South Dakota’s house and eight of the 35 in the state senate. Five of the Democratic legislators had a mixed record on choice and ten had a pro-choice record in the most recent legislative session, according to NARAL Pro-Choice South Dakota Executive Director Samantha Spawn.

As a result, Ring and other anti-choice Democrats devote more of their legislative efforts toward policies such as Medicaid expansion, which they believe will reduce the number of pregnant people who seek abortion care. Ring acknowledged that restrictions on the procedure, such as a 20-week ban, “at best, make a very marginal difference”—a far cry not only from Republicans’ anti-choice playbook, but also DFLA’s position.

Ring and other anti-choice Democrats nevertheless tend to vote for Republican-sponsored abortion restrictions, falling in line with DFLA’s best practices. The group’s report, which it released at the event, implied that Democratic losses since 2008 are somehow tied to their party’s support for abortion rights, even though the turnover in state legislatures and the U.S. Congress can be attributed to a variety of factors, including gerrymandering to favor GOP victories.

Anecdotal evidence provides measured support for the inference.

Republican-leaning anti-choice groups targeted one of their own—Rep. Renee Ellmers (R-NC)—in her June primary for merely expressing concern that a congressional 20-week abortion ban would have required rape victims to formally report their assaults to the police in order to receive exemptions. Ellmers eventually voted last year for the U.S. House of Representatives’ “disgustingly cruel” ban, similarly onerous rape and incest exceptions included.

If anti-choice groups could prevail against such a consistent opponent of abortion rights, they could easily do the same against even vocal “Democrats for Life.”

Former Rep. Kathy Dalhkemper (D-PA) contends that’s what happened to her and other anti-choice Democrats in the 2010 midterm elections, which resulted in Republicans wresting control of the House.

“I believe that pro-life Democrats are the biggest threat to the Republicans, and that’s why we were targeted—and I’ll say harshly targeted—in 2010,” Dahlkemper said in an interview.

She alleged that anti-choice groups, often funded by Republicans, attacked her for supporting the Affordable Care Act. A 2010 Politico story describes how the Susan B. Anthony List funneled millions of dollars into equating the vote with support for abortion access, even though President Obama signed an executive order in the vein of the Hyde Amendment’s prohibition on federal funds for abortion care.

Dalhkemper advocated for perhaps the clearest strategy to counter the narrative that anti-choice Democrats somehow aren’t really opposed to abortion.

“What we need is support from our party at large, and we also need to band together, and we also need to continue to talk about that consistent life message that I think the vast majority of us believe in,” she said.

Self-described pro-choice Georgia House Minority Leader Rep. Stacey Abrams (D) rejected the narratives spun by DFLA to supporters. In an interview with Rewire at the convention, Abrams called the organization’s claim that Democrats should work to elect anti-choice politicians from within their ranks in order to win in places like the South a “dangerous” strategy that assumes “that the South is the same static place it was 50 or 100 years ago.”

“I think what they’re reacting to is … a very strong religious current that runs throughout the South,” that pushes people to discuss their values when it comes to abortion, Abrams said. “But we are capable of complexity. And that’s the problem I have. [Its strategy] assumes and reduces Democrats to a single issue, but more importantly, it reduces the decision to one that is a binary decision—yes or no.”

That strategy also doesn’t take into account the intersectional identities of Southern voters and instead only focuses on appealing to the sensibilities of white men, noted Abrams.

“We are only successful when we acknowledge that I can be a Black woman who may be raised religiously pro-life but believe that other women have the right to make a choice,” she continued. “And the extent to which we think about ourselves only in terms of white men and trying to convince that very and increasingly narrow population to be our saviors in elections, that’s when we face the likelihood of being obsolete.”

Understanding that nuances exist among Southern voters—even those who are opposed to abortion personally—is instead the key to reaching them, Abrams said.

“Most of the women and most of the voters, we are used to having complex conversations about what happens,” she said. “And I do believe that it is both reductive and it’s self-defeating for us to say that you can only win if you’re a pro-life Democrat.”

To Abrams, being pro-choice means allowing people to “decide their path.”

“The use of reproductive choice is endemic to how we as women can be involved in society: how we can go to work, how we can raise families, make choices about who we are. And so while I am sympathetic to the concern that you have to … cut against the national narrative, being pro-choice means exactly that,” Abrams continued. “If their path is pro-life, fine. If their path is to decide to make other choices, to have an abortion, they can do so.”

“I’m a pro-choice woman who has strongly embraced the conversation and the option for women to choose whatever they want to choose,” Abrams said. “That is the best and, I think, most profound path we can take as legislators and as elected officials.”

Analysis Law and Policy

California Bill Aimed at Anti-Choice Videos Draws Free Speech Concerns

Amy Littlefield

“We wanted to make sure that we updated ... laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” California Assemblymember Jimmy Gomez said, adding that his legislation would also protect patient safety and access to abortion.

A California bill that would make it a crime to distribute secret recordings of health-care providers—like the ones David Daleiden used in his smear campaign against Planned Parenthood—has cleared a legislative hurdle, but faces opposition from media groups and civil liberties advocates, who say the legislation is overly broad.

It is already illegal in California to record, whether in audio or video form, a confidential communication without the consent of all parties involved. But California Assemblymember Jimmy Gomez, who introduced AB 1671, told Rewire that while current law specifically forbids the distribution of illegally recorded telephone calls, there is no similar protection for videos.

“We wanted to make sure that we updated those laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” Gomez said, adding that his legislation would also protect patient safety and access to abortion.

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AB 1671 makes it a crime if someone who violates California’s existing law against secret recordings “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet [websites] and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.”

Violators could be jailed for up to a year and fined up to $2,500, penalties similar to those already in place for making illegal recordings. But the new measure specifies that for both recording and distribution, the fines apply to each violation; that means someone like Daleiden, who circulated his videos widely, could quickly rack up heavy fines. Repeat offenders could face fines of up to $10,000 per violation.

The effort to pass the bill comes as abortion providers face a rising tide of threats and secret recordings. Besides Daleiden’s efforts, covertly recorded footage of clinic staff has cropped up in the documentary HUSH and in videos released by the anti-choice group Live Action. Planned Parenthood reported a ninefold increase in harassment at its health centers in July last year, when Daleiden began releasing the deceptively edited videos he claimed showed the organization was illegally profiting from fetal tissue donation. (Multiple federal and state investigations have found no wrongdoing by Planned Parenthood.) The National Abortion Federation recorded an “unprecedented” spike in hate speech and threats against abortion providers last year, peaking with the fatal shooting of three people at a Colorado Springs Planned Parenthood.

Increased Threats

“It was so alarming and so extensive that our staff that normally tracks threats and violence against providers could not keep up,” NAF President and CEO Vicki Saporta told Rewire. The organization was forced to hire an outside security firm.

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, told Rewire the new legislation is needed to protect the safety of abortion providers.

“If our providers aren’t safe, then they won’t provide, and we won’t have access to reproductive health care,” Parker said in a phone interview.

Daleiden’s group, the Center for Medical Progress, is based in California, and much of his covert recording took place there. Of the four lawsuits he and his group face over the recordings, three have been filed in federal court in California. Yet so far, the only criminal charges against Daleiden have been lodged in Texas, where a grand jury tasked with investigating Planned Parenthood instead indicted Daleiden and fellow anti-choice activist Sandra Merritt for purportedly using fake California driver’s licenses as part of their covert operation. The charges were later dropped for procedural reasons.

Last summer, California Attorney General Kamala Harris announced plans to review whether the Center for Medical Progress violated any laws, and in April, state investigators raided Daleiden’s apartment. Harris has not yet announced any charges. Daleiden has accused officials of seizing privileged information, a claim the attorney general’s office told Rewire it is working on resolving in court.

Harris, meanwhile is running for Senate; her campaign website describes her as “a champion for a woman’s right to choose.”

“We think there is an excellent case and the attorney general should have prosecuted,” Beth Parker of Planned Parenthood Affiliates of California told Rewire. “Daleiden did more than just publish the videos, as we know, I mean he falsified driver’s licenses, he falsified credit cards, he set up a fake company. I mean, we have, as you know, a major civil litigation against him and his conspirators. I just can’t answer to why the attorney general hasn’t prosecuted.”

Parker said AB 1671 could increase incentives for law enforcement to prosecute such cases.

“What we’ve heard as we’ve been working [on] the bill is that criminal law enforcement almost never prosecutes for the violation of illegal recording,” Parker said. “It’s just too small a crime in their view.”

Assemblymember Gomez also said he hopes his bill will facilitate the prosecution of people like Daleiden, and serve as a deterrent against people who want to use illegal recordings to “undermine the fact that people have this right to have control over their bodies.”

“That’s the hope, is that it actually does change that landscape, that DAs will be able to make a better case against individuals who illegally record and distribute,” Gomez said.

Vicki Saporta of the National Abortion Federation says the actions of law enforcement matter when it comes to the safety of abortion providers.

“There’s certainly a correlation between law enforcement’s response to criminal activity aimed at abortion providers and the escalation or de-escalation of that activity,” Saporta said, citing the federal government’s response to the murders of abortion providers in the 1990s, which included the deployment of federal marshals to guard providers and the formation of a task force by then-Attorney General Janet Reno. “We had more than a decade of decreases in extreme violence aimed at abortion providers, and that ended in 2009 with the murder of Dr. [George] Tiller.”

But media and civil liberties groups, including the Electronic Frontier Foundation and American Civil Liberties Union of California, have expressed concerns the bill could sweep up journalists and whistleblowers.

“The passing of this law is meant to chill speech, right, so that’s what they want to do,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, which opposes the legislation, said in an interview with Rewire. In addition to potential criminal penalties, the measure would create new civil liabilities that Moore says could make journalists hesitant to publish sensitive information.  

“A news organization is going to look at it and say, ‘Are we going to get sued for this? Well, there’s a potential, so we probably shouldn’t distribute it,’” Moore said.

As an example of the kind of journalism that could be affected by the bill, Moore cited a Los Angeles Times investigation that analyzed and helped debunk Daleiden’s footage.

“Planned Parenthood’s bill would criminalize that behavior, so it’s short-sighted of them if nothing else,” Moore said.

Assemblymember Gomez disagrees about the scope of the bill. “We have tailored it narrowly to basically say it applies to the person who illegally recorded the video and also is distributing that video, so it doesn’t apply to, say, a news agency that actually ends up getting the video,” he said.

Late last week, the California Senate Appropriations Committee released AB 1671 to the state senate floor on a vote of 5 to 2, with Republicans opposing it. The latest version has been amended to remove language that implicated “a person who aids and abets” the distribution of secret recordings, wording civil liberties groups said could be used to sweep in journalists and lawyers. The latest draft also makes an exception for recordings provided solely to law enforcement for investigations.

But the ACLU of California and the California Newspaper Publishers Association said they still oppose the bill. (The Electronic Frontier Foundation said it is still reviewing the changes.)

“The likelihood of a news organization being charged for aiding and abetting is certainly reduced” under the new language, Moore said. But provisions already exist in the California penal code to implicate those accused of aiding and abetting criminal behavior.

“You can imagine scenarios where perhaps the newspaper published it and it’s an anonymous source, and so now they’re aiding and abetting the distribution, and they’re the only person that the prosecutor knows might have been involved,” Moore says.

In letter of opposition sent in June to Assemblymember Gomez, Kevin Baker, legislative director of the ACLU of California, raised concerns about how the measure singles out the communications of health-care providers.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications —e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” Baker wrote.

Gomez said there could be further changes to the bill as talks aimed at resolving such opposition continue. An earlier version passed the assembly easily by a vote of 52 to 26. The latest draft faces an August 31 deadline to pass the senate and a concurrence vote in the assembly before the end of the session. After that, Gomez said he hopes California Gov. Jerry Brown (D) will sign it.

“If we can strike the right balance [between the rights of privacy and free speech], my hope is that it’s hard for him not to support it,” Gomez said. 


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