Urgent Appeal: More Important than Stupak

Scott Swenson

The Vatican is at it again, but now it's searching for life on other planets. Can progressives lead while the Vatican researches?

I know everyone is caught up in Stupak’s stupidity at the moment, but there is a more urgent communications challenge. The future, not just of health care reform but the entire galaxy, is at stake.

The Catholic Church has decided to look for life on other planets.

Progressives must immediately start using the term "Pro-Alien" before the Vatican does.  We must make sure their bogus messaging on social issues doen’t impact intergalactic relations. Just look how they treat God’s female and gay children.

Let’s make "we come in peace" mean something again.

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I don’t think it needs a focus group, but if you’re in the field you might as well tack on a question.

Commentary Law and Policy

For Its Orchestrators, Campaign to Attack Planned Parenthood More Legal Trouble Than It Was Worth

Imani Gandy

The actions of the "Human Capital" project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But for those behind the project, it may prove to be more legal trouble than it was worth.

Read more of our articles on the Colorado Springs Planned Parenthood shooting here.

After 30 months of effort, anti-choice activist David Daleiden claimed to have definitive proof that Planned Parenthood was in the grisly business of harvesting fetal “body parts” and profiting from their sale. This operation, which Daleiden dubbed the “Human Capital” project, was going to be what finally shut down the behemoth reproductive health-care provider. Conservative websites galore gloated that it would be the final nail in Big Abortion’s coffin.

On July 14, Daleiden released his first video, igniting a firestorm across social media. More than five months have now passed. The actions of the Human Capital project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But—in part because of these consequences—for those behind the project, it may prove to be more legal trouble than it was worth.

In Daleiden’s footage, actors posing as officers of a fake tissue procurement company he created called BioMax appear to be haggling with top Planned Parenthood officials regarding the cost of purchasing fetal tissue—or, as Daleiden put it, “baby parts.”

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There’s nothing illegal about fetal tissue donation programs. The law permits recouping reasonable costs associated with its transport, processing, preservation, quality control, and storage. And nothing in the videos demonstrated that Planned Parenthood was doing otherwise. But because they were heavily edited to make it look like Planned Parenthood officials are using the profits from fetal tissue to buy Lamborghinis and drink expensive wine—and because when it comes to abortion rights, sense and logic are often discarded in favor of inflammatory rhetoric—the videos immediately went viral. The hashtag #PPSellsBabyParts trended on Twitter for days. Lawmakers on a state and federal level rushed to attempt to defund Planned Parenthood, with senators most recently voting to do so last Thursday night as part of an Obamacare repeal. In addition, Planned Parenthood announced that it would no longer accept reimbursement for tissue donation.

As the scandal drags on, however, not a shred of evidence has been produced to suggest that Planned Parenthood broke any state or federal laws in connection with its fetal tissue donation programs.

None of the states that began investigations into Planned Parenthood have found any suggestion of nefarious activity. Federal lawmakers haven’t had much luck, either, despite multiple hearings conducted by different congressional committees. Though House Republicans announced in early October that they would be forming a Benghazi-like special committee to continue an investigation into Planned Parenthood, any possibility that the organization will be found to be in violation of policies regarding fetal tissue donation seems to be flickering out.

What remains, then, are questions about whether or not David Daleiden himself and the organizations he created—CMP and BioMax Procurement Services, the fake tissue procurement company—broke federal and state laws in connection with their crusade against Planned Parenthood, and who coordinated with Daleiden to perpetrate this alleged fraud.

These questions have been teed up in federal court in San Francisco, where a discovery battle has been raging between the National Abortion Federation (NAF) and Daleiden for several months.

“Discovery” is the process in litigation whereby parties to a lawsuit have to, essentially, lay their cards on the table and turn over information that the other side might need to support their claims or defense. And in the lawsuit that NAF filed against CMP, discovery is the process that could unravel a conspiracy involving multiple players all acting in concert to take down Planned Parenthood. Such players may include anti-choice extremists connected to groups like Live Action and Operation Rescue, in addition to some of the anti-choice politicians who jumped at the opportunity to hold congressional hearings and form investigative committees about Planned Parenthood’s supposed dastardly deeds.

But NAF’s lawsuit is about more than CMP’s cynical effort to undermine rights by attacking one of the largest providers of reproductive health care. It is also about NAF’s members—Planned Parenthood affiliates and independent providers who battle incredible odds just to be able to provide a legal health-care service, and the professional association that takes seriously its job of providing a safe space where those providers can meet without fear of harassment.

As outlined in painstaking detail in NAF’s complaint, these providers, many of whom are under constant threat of domestic anti-choice terrorism, often rely on NAF to maintain a shroud of secrecy over its meetings and events so that these providers can feel safe there.

The necessity for such security measures has become obvious in the wake of Daleiden’s scheming. According to NAF court filings, reported incidents of harassment against Planned Parenthood clinics increased ninefold in July, as compared to June. Reported incidents of harassment were even more numerous in August. And in late November, Robert Lewis Dear Jr. was arrested for killing three people and wounding nine others at a Planned Parenthood clinic in Colorado Springs. “No more baby parts,” is what he reportedly said when interviewed after his capture.

Indeed, in September, the FBI warned that there would be “an uptick in attacks on reproductive health care facilities.” As reported by CBS, investigators have tied that uptick directly to CMP’s smear campaign.

So when CMP published footage accusing Planned Parenthood and other NAF members of trafficking in the sale of black-market “fetal body parts,” NAF set about stopping CMP from releasing any more videos that might prove dangerous for its members.

Thus far, NAF’s efforts have been successful.

Within weeks of the first video release, NAF filed a lawsuit in federal court against CMP, BioMax, David Daleiden, Troy Newman (the founder of radical anti-choice extremist group Operation Rescue), and a number of thus far unidentified alleged other parties. Among other civil and criminal allegations, the lawsuit alleges a conspiracy to defraud NAF, perpetrated for the purpose of intimidating and harassing abortion care providers.

Days after NAF filed its lawsuit, it won a temporary restraining order (TRO) blocking CMP from releasing additional footage or other materials that NAF alleges CMP fraudulently acquired at NAF meetings. The judge who issued the temporary restraining order, William Orrick, also ordered CMP and Daleiden to provide responses to NAF’s discovery requests: testimony, documents, and other evidence that NAF needs in order to prove its case that the temporary restraining order should be converted into a preliminary injunction continuing to block the video release.

The most important information sought by NAF is probably the video recordings themselves, many of which were surreptitiously recorded at private NAF events in violation of the explicit nondisclosure agreement that CMP members were required to sign before they could gain entrance into NAF’s annual meetings in 2014 and 2015. The confidentiality agreements are one piece of an extensive security protocol that NAF put in place to protect attendees from anti-choice terrorism.

Daleiden and CMP maintain that the TRO and any preliminary injunction that the court might issue constitutes “prior restraint,” or pre-publication censorship, in violation of the First Amendment. Daleiden believes that the confidentiality agreement that he signed is invalid because in his mind, NAF is an accomplice in Planned Parenthood’s baby parts trafficking scheme.

NAF has countered, and thus far Judge Orrick seems to agree, that First Amendment rights can be waived by contract, which is exactly what Daleiden did. And considering that no federal or state agency has found Planned Parenthood guilty of anything, Daleiden’s continued insistence that he’s an investigative journalist on a crusade to expose the illegal sale of aborted fetal tissue has begun to ring rather hollow.

If the only reason NAF was suing CMP and Daleiden was to make sure that no more video footage containing NAF’s sensitive information is released, Daleiden might be able to rest easy. Although his exposé has fallen apart, leaving a trail of anti-choice violence and tragic destruction in its wake, he and his cohorts might have been able to escape any criminal and civil liability by choosing to not publish any more videos.

But no such luck for him. NAF wants more than just the video footage.

NAF wants to know exactly how Daleiden and CMP perpetrated the operation: who was involved, who infiltrated NAF’s meetings, who funded the project, and who received reports on CMP’s activities. Daleiden and CMP have been desperately trying to avoid providing that information to NAF, which raises questions about what they are trying to hide or who they are trying to protect.

CMP and Daleiden have tried several gambits in their attempts to thwart NAF’s effort to obtain discovery, including pleading the Fifth Amendment as a blanket objection to the information requests. Judge Orrick has swatted them down at every turn, ordering for them to release the information.

Somewhere in those documents is information that CMP and Daleiden would prefer remain undisclosed, including the identity of CMP’s donors and the names of politicians, if any, with whom CMP may have colluded in its effort to take down Planned Parenthood, or who knew about the CMP operation months before the first video was published.

Also contained in the testimony and documents that CMP and Daleiden have been fighting to keep secret are the names of Daleiden’s associates and accomplices—the individuals who infiltrated NAF’s annual meetings under false pretenses. That information may lead to more juicy revelations about which, if any, anti-choice politicians, front groups, or political action committees can be tied to CMP’s smear campaign.

Several Republican politicians have copped to viewing some of the footage long before the videos were publicly released.

Rep. Trent Franks (R-AZ) admitted that he had first seen the video about a month before it was released. When asked why he did nothing about it at the time, he said, “The hope was to have as much information as possible so that the authorities could be notified effectively before the media.”

Rep. Tim Murphy (R-PA), who is a member of the House Pro-Life Caucus and chairman of the Energy and Commerce subcommittee that is investigating the videos, said in a press conference that he had seen the footage weeks prior to its release. After the press conference, CQ Roll Call asked Rep. Murphy why he had waited to mention the video’s existence. After fumbling for an answer, Murphy ended the interview, asked that he not be quoted, and said, “This interview didn’t happen.”

This in and of itself has raised some eyebrows: The fervor with which these politicians have decried the murder of “babies” and the “harvesting” of their “parts” would suggest that as soon as they became aware of Planned Parenthood committing such horrors in facilities around the country, they would have sprung into action.

But they didn’t.

Instead they waited until the Republicans could use a budget showdown as leverage to pursue their vendetta against Planned Parenthood.

If these politicians actively coordinated with Daleiden and CMP, who may have violated numerous federal and state laws, including creating fake identification and secret videotaping, they may not want their identities revealed in connection with NAF’s lawsuit. But NAF and its attorneys have been determined to ferret them out.

And they may have finally gotten their chance. After months of stalling, CMP and Daleiden were ordered to provide to NAF the identities of the “handful of supporters” that were “intimately involved in the planning and funding of the Center’s alleged conspiracy.” On Saturday evening, after their appeal was rejected by the Ninth Circuit and then the Supreme Court, CMP and Daleiden finally complied, according to sources at NAF. The information they gave is under protective order. The court may decide it should be public, but has not yet.

Given the ongoing troubles Daleiden and CMP face in federal court, it’s hard not to conclude that the Human Capital project may have been more trouble for them than it was worth.

Thus far, 11 videos have been released, and while they have riled up anti-choice advocates, so far, no government agency has been able to make any accusation against Planned Parenthood stick. Moreover, public opinion about Planned Parenthood actually improved after CMP began publishing its heavily edited videos.

Evidence suggests that even if CMP and Daleiden can manage to avoid being permanently blocked from releasing any more video footage recorded at NAF meetings, the footage won’t be the end of Planned Parenthood as they had hoped.

Despite the TRO, additional footage found its way on to the Internet thanks to Internet troll and disgraced blogger Chuck C. Johnson, and notorious hacker Andrew “Weev” Auernheimer. Johnson first claimed that the leak came from Congress, but then changed his story and claimed he received the footage from an anonymous person with the user name “patriotgeist.”

But those leaks don’t seem to be advancing the Human Capital project’s agenda, at least not with the current presidential administration in office. Earlier this month, the Senate, after multiple attempts, managed to pass a bill repealing the Affordable Care Act and defunding Planned Parenthood, but that will almost certainly be vetoed by President Obama. And each state that Planned Parenthood has sued after those states cut off the health-care organization’s funding has been ordered to reinstate the funding.

So ultimately, what was the point of this project? To inflame those who already hate Planned Parenthood? To rile up gullible people who think despite all evidence to the contrary, that Planned Parenthood is murdering babies for parts? If so, mission accomplished. But I imagine Daleiden had bigger hopes for this project—like destroying Planned Parenthood altogether. Thus far, those hopes are not panning out. And instead, Daleiden and others involved with CMP could face major consequences, including jail time.

All that remains to be seen is what Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.

We’ll have to wait and see when those names are made public.

Commentary Violence

How Anonymous Does More Harm Than Good for Sexual Assault Victims

Bridgette Dunlap

Women don’t need to be avenged by "white knights." We need the knowledge and the legal resources to vindicate our rights ourselves.

A recent New York Times Magazine article by Emily Bazelon asks whether activists involved with Anonymous—the “loose collective of agitators, hackers and pranksters”—are Internet saviors, “or just a different kind of curse.”

I am emphatically in the “they’re a curse” camp, and, at the risk of getting doxed, I’m going to argue that others with feminist and progressive commitments should be too.

The typical “white knight” campaign begins with an Anonymous activist determining from a news account that an alleged victim of sexual assault has been denied justice by the corruption and complacency of law enforcement. They then bring a storm of media attention and threats down on the accused, police, prosecutors, and the towns in which they live.

Anonymous is often credited with having helped to bring rapists to justice in the Maryville, Steubenville, and Rehtaeh Parsons cases despite a track record of making investigations already in progress more difficult, falsely accusing innocent people, and making other women collateral damage.

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Until reading Bazelon’s article, I was under the impression that Anonymous might have turned up some useful evidence in the case of Rehtaeh Parsons, who killed herself after pictures of her alleged rape were sent around by her peers. But it turns out, according to Bazelon, that Anonymous accused a person who some of its own activists had cleared of wrongdoing. And the evidence that turned the case around was not something Anonymous found, but rather a Facebook message one of the accused sent to Parsons’ mother, Leah Parsons, apologizing and implicating others.

Leah Parsons was ambivalent about “OpJustice4Rehtaeh,” but she was clear in an interview that she wanted the justice system, not the public, going after the boys who allegedly raped her daughter. Bazelon reports that Parsons’ rejection of Anonymous’ vigilante tactics came as an unexpected blow to Anonymous activists—I expect because it didn’t occur to them that they might not know what is best for a survivor or her family.

A similar dynamic was evident with Steubenville, when Anonymous turned a case the victim might have preferred be prosecuted quietly into a national story, in which multiple media outlets inadvertently disclosed her name. Anonymous dispensed endless unfounded rumors that were repeated by reputable news outlets with meager caveats. They accused an innocent teen of giving the high school girl in Steubenville a roofie, though toxicology reports showed otherwise, and released nude pictures of women found in the hacked email of another Anonymous target, thus victimizing more women.

But Anonymous’ most famous contribution to the case was the release of a video in which an apparently drunk and/or high student goes on a disgusting rant about Jane Doe being “so raped” in response to a video of her he has just viewed. It’s awful, and ultimately there was little reason to spread it around: The kid was not involved with the assault, and prosecutors already had the video before Anonymous made this further indignity against the victim go viral.

Anonymous acknowledged the harm it caused in Steubenville when launching #OpMaryville, assuring us that “efforts have been made to limit the amount of collateral damage in this operation.” They launched the campaign five minutes after reading one article about the contested reasons prosecutors dropped charges in the alleged rape of Daisy Coleman. The cybermob descended on Maryville, calling for the prosecutor in the case to lose his job, publicizing the names of the sheriff’s family members, harassing parents of the accused, and branding Maryville a “lawless hellhole.”

Anonymous was triumphant when a special prosecutor was appointed to reopen the investigation. However, the special prosecutor, a woman and a Democrat known as a strong advocate for sexual assault survivors, reached the same conclusion as the original white, male Republican prosecutor did: There wasn’t enough evidence for sexual assault charges, only misdemeanor child endangerment for leaving an intoxicated minor outside in the cold.

When accused of corruption, the original prosecutor explained he’d dropped the case due to lack of evidence and the Colemans’ refusal to cooperate. He first dropped the felony sexual assault charge because he couldn’t prove it, but tried to move forward with the misdemeanor, which carries a possible one-year sentence. The Colemans admit that they stopped cooperating after the felony charge was dropped, pleading the Fifth and failing to sign their depositions. The only thing that changed after the wrath of Anonymous coming to Maryville (besides the difficult level of attention Daisy experienced) was the Colemans’ willingness to cooperate on the misdemeanor charge, to which the accused ultimately plead guilty.

Many people weren’t satisfied with this, but the reported facts indicate that the prosecutors were right—they could not prove sexual assault. Acquaintance rape, the most prevalent kind of rape in the United States, is inherently difficult to prove beyond a reasonable doubt, but in this case it would have been impossible because Matt Barnett, the accused rapist, says the sex was consensual, and Daisy Coleman cannot testify to what happened because she has no memory of it. Daisy’s friend says she wasn’t in the room to see what happened, while Matt’s friends say they took a video of Barnett and a not intoxicated Daisy kissing (which they deleted that night and police were unable to recover).  Daisy’s blood alcohol level the next morning is circumstantial evidence that she was too intoxicated to consent to sex, but the boys, who presumably would have testified, told police she drank heavily after returning from the room with Barnett.

The Missouri rape statute in place at the time requires proving the defendant did not “reasonably believe” the accuser didn’t consent or was too incapacitated. Asked if Barnett might have thought the sex was consensual, Daisy told investigators, “He was drinking too, so yeah, he could have.” Even on Daisy’s version of the facts, Barnett couldn’t be proven guilty of the felony charges. It would have be unethical for prosecutors to try.

Bringing attention to the problem of sexual assault and showing support for accusers is laudable and may bring solace to some survivors. However, as Samantha Jane Geimer, the woman Roman Polanski plead guilty to raping when she was a child, recently advised, we should refrain from jumping to conclusions about the guilt of people who haven’t been convicted of a crime and cognizant that public battles may not be in the service of survivors.

In an interview about her Times Magazine piece, Bazelon says we should judge each Anonymous “operation” individually and concludes that #OpMaryville was a good thing on balance and #OpJustice4Rehtaeh probably was as well, despite the false accusations. I think she’s wrong here. We should reject Anonymous’ actions for more fundamental reasons than individual activists’ mistakes in particular cases:

1. Anarchy is bad for women and marginalized people. The law may be inadequate and unevenly enforced, but we have fought hard to have it apply to us. We do not want to return to the days when rape accusations were handled without a trial. And we do not want to return the protection of women to the benevolence of private actors—especially not Anonymous, to whom some women (typically young, white, and pretty) are damsels in distress, while others are “land whales” or “whores.” If you’re deemed a whore, Anonymous may torment you at your darkest moment.

2. Due process matters. In a society with a wrongful conviction problem, where the poor and people of color are disproportionately targeted by the criminal law, we need to take the protections for the accused we have seriously. When Anonymous demands that accused persons apologize or face their fury, they are demanding they give up their Fifth Amendment right not to incriminate themselves. When they turn accused teens into famous rapists, they poison the jury pool, jeopardizing their right to a fair trial. You may feel in your heart he’s guilty, but the government still has to prove every element of the crime beyond a reasonable doubt.

3. Veracity is important. The feminist activist group UltraViolet sent an email immediately after news of the Maryville plea that not only dispensed with the term “alleged,” instead calling someone cleared by two different prosecutors a rapist, but also presented disputed information as fact. The group claimed, for example, that the Colemans’ home was “literally burned down” in retaliation for their accusations although insurers determined it was an electrical fire that started in the basement. UltraViolet is by no means alone in letting outrage overwhelm accuracy. We have to be careful about taking things to be fact just because the cybermob has repeated it enough.

4. Vilifying individuals obscures systemic problems. If the accused is pure evil, we are off the hook for our failure as a society to teach young men that they can’t touch anyone without consent. If prosecutors are all corrupt, we don’t have to address the underfunding of their offices or reform inadequate laws. If suicide is the inevitable response of fragile young women to bullies, we don’t have to provide mental health resources or educate them about their rights to make it stop.

5. We should empower victims to sue civilly. Anonymous tells us that the criminal justice system is horribly corrupt—probably deterring victims of sexual assault from reporting crimes—while also perpetuating the notion that there can be no justice without a criminal conviction. But victims have more control as a plaintiff in a civil lawsuit than as a witness in a criminal one. In a civil suit, a plaintiff can seek monetary damages, which may be more useful to her than a prison sentence if she has lost wages and medical needs, and doesn’t need to prove her claims beyond a reasonable doubt. Rape is a common-law battery in every state for which you can sue in tort. As to the problem of women having their pictures distributed without permission, sometimes after the best efforts of Anonymous fail, all it takes is a call from a lawyer to make it stop. I’m all for calling out cyberbullying and revenge porn and updating criminal laws to deal with it, but much of this is already illegal.

Women don’t need to be avenged by “white knights.” We need the knowledge and the legal resources to vindicate our rights ourselves.

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