News Law and Policy

Federal Court Rules Center for Medical Progress and BioMax Can’t Plead the Fifth

Imani Gandy

A federal judge today handed a decisive loss to the Center for Medical Progress and BioMax, the two organizations embroiled in a lawsuit with the National Abortion Federation stemming from their smear campaign against Planned Parenthood.

See more of our coverage on the misleading Center for Medical Progress videos here.

A federal judge today handed a decisive loss to the Center for Medical Progress (CMP) and BioMax, the two organizations embroiled in a lawsuit with the National Abortion Federation (NAF) stemming from their smear campaign against Planned Parenthood, along with David Daleiden, the head of CMP.

Judge William Orrick of the U.S. District Court of Northern California in San Francisco ruled that Center for Medical Progress and BioMax as corporate defendants cannot plead the Fifth Amendment in order to avoid responding to NAF’s discovery requests.

NAF filed a lawsuit in late July alleging civil conspiracy, racketeering, fraud, and breach of contract, among other civil and criminal allegations, stemming from the release of video footage deceptively edited to suggest that NAF members, including Planned Parenthood, are engaged in illegal trafficking of fetal baby parts.

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NAF also sought a temporary restraining order blocking any further release of the attack videos.

Orrick issued the temporary restraining order, and ordered expedited discovery so that the National Abortion Federation could gather evidence to support its effort to obtain a preliminary injunction blocking CMP and Daleiden from releasing additional footage or other materials that NAF alleges the anti-choice front group fraudulently acquired. CMP and Daleiden used false identification cards to infiltrate NAF’s annual meetings in 2014 and 2015, according to NAF.

All defendants in the case, including the corporate defendants, informed the court last month that they planned to plead the Fifth Amendment in response to all of NAF’s discovery requests in order to avoid making any self-incriminatory statements.

No court in the country has ever permitted a corporation to plead the Fifth Amendment.

In an order issued on September 11, Orrick noted that “[t]here is no dispute that individual defendants, such as Daleiden and Newman, may invoke the Fifth Amendment, which may be asserted in civil proceedings in response to any official questions when the answers may incriminate the party who answers.”

However, during a hearing this morning, Orrick declined to extend the Fifth Amendment privilege to the corporate defendants, CMP and BioMax.

CMP has argued that none of the defendants should be required to provide responses to NAF’s discovery requests. It maintains that Orrick’s temporary restraining order is an unconstitutional prior restraint, or pre-publication censorship, on their First Amendment right to freedom of speech. It has also consistently claimed that NAF is unlikely to succeed in obtaining a preliminary injunction since prior restraints on speech are presumptively unconstitutional.

NAF claims that corporate defendants do not have testimonial privilege, and that in any event, the defendants waived their First Amendment rights when they knowingly and voluntarily signed confidentiality agreements prohibiting them from making public any video or audio recordings and materials of NAF educational meetings.

NAF says that it seeks to protect its members, many of whom are providers, from harassment from anti-choice extremists as a result of CMP releasing their names and identities to the public.

The battle as to whether or not the NAF is entitled to discovery has dragged on for weeks.

“It’s telling that the defendants have been very vocal in the media saying that they have nothing to hide, yet in Federal court they want to plead the Fifth,” NAF President and CEO Vicki Saporta said in a statement. “We are pleased with the results of today’s hearing, and are eager to move forward with the discovery process.”

Yesterday, the Ninth Circuit handed CMP a brief victory in the discovery battle when it issued an order blocking all discovery until the court has a chance to consider an emergency motion that CMP filed. The emergency motion asks the Ninth Circuit to forbid Orrick from allowing NAF to conduct discovery in support of its effort to obtain a preliminary injunction.

The emergency motion notes that CMP has filed several motions, including a motion to dismiss and an anti-SLAPP motion, which it claims obviates the need for CMP to provide any discovery whatsoever. (An anti-SLAPP motion is a special court document that a party to a lawsuit can file with a court when a complaint against that party arises from activity exercising the right of free speech. For an explainer of what an anti-SLAPP motion is in layperson’s terms, see this “lawsplainer” written by Ken White of Popehat.)

The Ninth Circuit issued an order granting CMP’s emergency motion in part. The Ninth Circuit’s order prohibits the district court from issuing “a preliminary injunction or requiring the defendants to produce any discoverable materials or to respond to interrogatories or inquiries, including whether they intend to invoke the Fifth Amendment as to specific questions or document requests.”

Such appellate orders staying discovery for a brief period of time are relatively commonplace in California. The stay simply places the litigation in a brief holding pattern while the appellate court has an opportunity to consider the arguments presented by the defendants, and the arguments presented by the plaintiff in response.

In a phone interview with Rewire, counsel for NAF, Derek Foran of Morrison & Foerster called Orrick’s refusal to permit the corporate defendants to plead the fifth “the big headline.”

“Pending a decision from the Ninth Circuit on the writ petition, the district court is ready to set an aggressive discovery schedule and a schedule on the preliminary injunction motion,” Foran said. “We’ve been fighting for several weeks to get access to critical discovery, including what information Defendants stole from NAF, but we appear to be on the threshold of obtaining discovery.”

“But we need to wait for the Ninth Circuit,” he added.

Analysis Law and Policy

After a Year, What Has the Smear Campaign Against Planned Parenthood Accomplished?

Jessica Mason Pieklo & Imani Gandy

One year after David Daleiden and the Center for Medical Progress released the first of a series of videos targeting Planned Parenthood, there is still no evidence of wrongdoing by the reproductive health-care provider.

See more of our coverage on the anti-choice front group, the Center for Medical Progress here.

One year ago, David Daleiden released the first in a series of videos that he claimed proved Planned Parenthood employees were unlawfully profiting from fetal tissue donation and violating the federal “partial-birth abortion” ban. With the backing and counsel of Operation Rescue President Troy Newman and the help of a woman named Sandra Merritt, among others, Daleiden had created a front group called the Center for Medical Progress (CMP).

He then disguised CMP as a legitimate biomedical research organization—despite overwhelming evidence, including CMP’s own corporate documents, to the contrary—and used it to gain access to abortion clinics and private meetings. The organization released 11 videos by the end of 2015; in a year’s time, Daleiden and CMP had released a total of 14 videos. All have been debunked as deceptively edited and misleading.

So what have those videos truly accomplished? Here’s a summary of the fallout, one year later.

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Lawmakers Mounted Attacks on Planned Parenthood

In response to CMP’s videos, more than a dozen conservative governors launched investigations into or tried to defund Planned Parenthood affiliates in their states. States like Arkansas, Kansas, and Utah had their attempts to defund the reproductive health-care centers blocked by federal court order. The Obama administration also warned states that continuing to try and strip Medicaid funding to Planned Parenthood centers violated federal law, though that did not stop such efforts throughout the country.

Additionally, congressional Republicans began their own investigations and defunding efforts, holding at least five separate hearings and as many defunding votes. Planned Parenthood Federation of America (PPFA) President Cecile Richards provided hours of congressional testimony on the lawful fetal tissue donation option available to some Planned Parenthood patients. Other affiliates do not offer such donation programs at all.

Not a single investigation at either the state or federal level has produced evidence of any wrongdoing. Still, many continue today. To date, Congress alone has spent almost $790,000 on the matter.

Violence Against Clinics Escalated

Just weeks after CMP released its first video, there was an act of arson at a Planned Parenthood health center in Aurora, Illinois. The following month, and after the release of three more smear videos, a car fire broke out behind a locked gate at Planned Parenthood in New Orleans. Abortion clinic staff and doctors around the country reported a significant uptick in threats of violence as Daleiden and CMP released the videos in a slow drip.

That violence spiked in November 2015, when Robert Lewis Dear Jr. was arrested for opening fire at a Colorado Springs Planned Parenthood, a siege that left three dead. Dear told investigating officers his violence was “for the babies” because Planned Parenthood was “selling baby parts.” A Colorado court has so far deemed Dear incompetent to stand trial. Dear’s siege was not the last incident of clinic violence apparently inspired by Daleiden and CMP, but it has, to date, been the most lethal.

Dear’s next competency hearing is currently scheduled for Aug. 11.

A Lot of Lawsuits Got Filed

The tissue procurement company StemExpress and the National Abortion Federation (NAF) filed suits in July of last year. In January 2016, Planned Parenthood did the same, alleging that Daleiden and CMP had engaged in conspiracy and racketeering, among other things.

StemExpress Sued Daleiden and CMP

StemExpress, one company to whom Planned Parenthood was supposedly selling tissue, sued CMP, Daleiden, and Merritt in California state court. StemExpress asked the court for an injunction blocking CMP from releasing any more videos that were surreptitiously recorded at meetings the pair of anti-choice activists had with StemExpress staff. The complaint also included allegations of conspiracy, invasion of privacy, and conversion of property (based upon Daleiden’s taking confidential information from a former StemExpress employee, including accessing her StemExpress email account after she was no longer employed at the company).

Although it issued a temporary restraining order (TRO), the court ultimately declined to convert that into an injunction, citing First Amendment concerns that to do so would constitute prior restraint, or pre-publication censorship, on Daleiden and Merritt’s right to free speech. In other words, Daleiden and Merritt are free—at least under this court order—to continue releasing videos involving StemExpress employees while the suit proceeds.

The case is set for trial in January 2017.

National Abortion Federation Sued Daleiden and CMP

About the same time that CMP and Daleiden were battling StemExpress in court, NAF filed suit in federal court in San Francisco, alleging civil conspiracy, racketeering, fraud, and breach of contract, among other claims. Like StemExpress, NAF sought a temporary restraining order blocking any further release of the attack videos. Judge William Orrick issued the TRO and later, after a protracted discovery battle, converted it into a preliminary injunction. Thus, CMP is prohibited from publishing any videos of footage taken at NAF’s annual meetings, which Daleiden and Merritt infiltrated in 2014 and 2015, while the suit proceeds.

As they had in their battle with StemExpress, Daleiden and CMP claimed that prohibiting publication of the videos constituted a prior restraint on speech, in violation of the First Amendment. But unlike StemExpress, which was trying to prohibit the publication of videos detailing conversations that took place in a restaurant, NAF sought to prohibit publication of video footage secretly recorded at meetings. Judge Orrick found that Daleiden had waived his First Amendment rights when he signed a confidentiality agreement at those meetings promising not to disclose any information he gained at them.

And, as in other court battles, one of the preeminent claims Daleiden and his cohorts raised to excuse his tactics—creating a fake tissue procurement company, assuming false identities through the use of false identification cards, getting people drunk in order to elicit damaging statements from them, and signing confidentiality agreements with no intention of following them—was that Daleiden is an investigative journalist.

Judge Orrick condemned this argument in strong terms: “Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project—achieved in large part from the infiltration—thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigatory journalism techniques.”

In an amicus brief in the same lawsuit, submitted to the Ninth Circuit Court of Appeals in early June, 18 of the country’s leading journalists and journalism scholars noted that “by calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so.”

“We believe 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,” the journalists and scholars continued.

Daleiden and CMP have appealed the preliminary injunction order to the Ninth Circuit Court of Appeals, where the case currently sits pending a decision.

Planned Parenthood Sued Daleiden and CMP

Six months after StemExpress and NAF filed their lawsuits against the orchestrators of the smear campaign, PPFA filed a whopping one of its own in California federal court, alleging civil conspiracy, racketeering, fraud, trespass, and breach of contract, among other civil and criminal allegations. PPFA was joined by several affiliates—including Planned Parenthood of the Rocky Mountains, where Dear was arrested for opening fire in November.

Daleiden has asked the court to dismiss Planned Parenthood’s claims. The court has so far declined to do so.

David Daleiden and Sandra Merritt Were Indicted on Felony Charges

Daleiden and his allies have not fared well in the civil lawsuits filed against them. But both Daleiden and Merritt also have pending criminal cases. After an investigation into Planned Parenthood Gulf Coast sparked by Daleiden’s claims, a Texas grand jury declined to indict the health-care organization for any criminal conduct. The grand jury instead returned an indictment against Daleiden and Merritt on a felony charge of tampering with a governmental record, related to their use of false California driver’s licenses in order to gain entrance into the clinic. Daleiden was additionally charged with a misdemeanor count related to the purchase or sale of human organs.

In June, Harris County Criminal Court at Law Judge Diane Bull dismissed the misdemeanor charge. Daleiden and Merritt’s attorneys, who called the dismissal a victory for the anti-choice movement, are still trying to get the felony charged dismissed.

News Human Rights

Advocates Petition Court to Defend Privacy Rights of Undocumented Immigrants

Tina Vasquez

The action is about protecting the basic constitutional privacy rights of those who received three-year work authorization permits, according to the ACLU of Texas.

The National Immigration Law Center, the American Civil Liberties Union (ACLU), and the ACLU of Texas filed on Friday a petition for writ of mandamus before the Fifth Circuit Court of Appeals on behalf of four people affected by a court order requiring the Department of Justice (DOJ) to turn over the personal information of thousands of young, undocumented immigrants by June 10.

Marielena Hincapié, executive director of the National Immigration Law Center, expressed concern in a press release that this information would be “used against them” because the court order would place the personal information of thousands of undocumented young people directly in the hands of the state officials who oppose protections for undocumented immigrants.

U.S. District Judge Andrew Hanen, who issued the court order, led the charge on obstructing the implementation of DAPA (Deferred Action for Parents of Americans) and the expansion of Deferred Action for Childhood Arrivals (DACA), announced in 2014. In February of 2015, Hanen issued a temporary injunction to the 26 states challenging President Obama’s executive action on immigration in 2014, and in a later ruling denied the DOJ’s request for a stay of the preliminary injunction. Later, the DOJ petitioned the Supreme Court to take up the case after the U.S. Court of Appeals for the Fifth Circuit agreed with Hanen’s ruling. An opinion in that case, United States v. Texas, is expected this month.

Like DACA—which enables undocumented immigrants who entered the country before their 16th birthday and before June 2007 and who meet other requirements, to receive a renewable work permit and exemption from deportation for two yearsDAPA offers similar benefits to undocumented parents with U.S. citizen or legal permanent resident children. However, neither DACA nor DAPA offers a pathway to citizenship.

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The four DACA recipients who are the subject of the petition were able to remain in the country for two years when DACA was implemented in 2012. When their permissions were set to run out in the fall of 2014, they sought extensions at the same time the Obama administration announced its DACA expansion, which lengthened work authorization permits from two to three years. While DACA in its original form, as announced in 2012, is still in place, it is this expansion that is being contested in the Supreme Court case.

The four DACA recipients in the petition reapplied and received three-year extensions. They are just four of the estimated 108,000 young, undocumented immigrants who benefited nationwide from the DACA expansion between November 2014 and February 2015, before Hanen issued a preliminary injunction on both DAPA and the DACA expansion, ordering the government to rescind the three-year permits.

On May 19, Hanen ordered the Justice Department to disclose the names, addresses, and other identifiers of the estimated 50,000 DACA recipients residing in the 26 states involved in United States v. Texas and who benefited from the short-lived DACA expansion. The SCOTUSblog reports that the judge handed down this order last month “to punish the government for what [Hanen] found to be intentional ethical misconduct in his court by two Justice Department lawyers when the immigration case was before him earlier,” though the lawyers contend “the ethics dispute arose mainly from misunderstandings between the judge and the lawyers about just what was at stake, and not from a ploy by government lawyers to mislead the court.”

The judge said the list would remain sealed until the Supreme Court issues a decision, but afterwards states could request information on the list be given to authorities if they could prove the information “would minimize or prevent harm in that state.”

The writ of mandamus petition filed by the three civil rights organizations enables the DACA recipients affected by the order to request for a stay of the order. And as SCOTUSblog reported, “Since that data is supposed to be filed by next Friday, the four individuals asked that the Circuit Court decide on their challenges by Wednesday so that they ‘may seek further review if necessary’—apparently, an indication that they would go on to the Supreme Court if the Circuit Court were to turn them down.”

This action is about protecting the basic constitutional privacy rights of those who received three-year work authorization permits, according to the ACLU of Texas.

“The rights embodied in our Constitution were designed to protect the most vulnerable members of our society, including young immigrants who only know this country as their own,” Edgar Saldivar, senior staff attorney for the ACLU of Texas, said in a press release. “If their fundamental privacy protections can be nullified by the stroke of a judge’s pen in a case to which they are not parties, then everyone’s privacy rights are threatened.”