An attorney for David Daleiden and his anti-choice group responsible for heavily edited videos attacking Planned Parenthood said in court last week that there was no way to show that the videos had any connection to the uptick in violence directed toward the health-care organization this year.
Attorneys for the National Abortion Federation (NAF) on Friday squared off in court against the orchestrators of the Planned Parenthood attack campaign, arguing that Daleiden and the Center for Medical Progress (CMP) should remain blocked from releasing any video footage that NAF says CMP illegally acquired.
Daleiden and CMP violated multiple state and federal laws, and breached contracts when they published videos deceptively edited to suggest that Planned Parenthood was engaged in the criminal trafficking of fetal tissue, or “baby parts,” according to NAF’s allegation. The videos were cobbled together from more than 500 hours of footage surreptitiously recorded by Daleiden and a group of his associates at NAF’s private meetings in 2014 and 2015.
NAF had submitted to the court evidence that Dr. Savita Ginde, the director of the Planned Parenthood clinic in Colorado Springs, where three people were killed by the accused shooter who would later claim to be a “warrior for the babies,” had been subjected to picketing outside her home, including anti-choice protesters handing out fliers to neighbors labeling her a “baby killer.”
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NAF submitted evidence of Internet commenters calling for the death of Ginde and other NAF members featured in the CMP videos.
Catherine Short, the attorney for CMP, questioned the connection between the videos and the increase in hate speech and violence against NAF members.
Short noted that hate speech is not against the law and is not the sort of “irreparable injury” that will support a preliminary injunction barring the release of more footage.
Residential picketing is protected free speech and aside from “cherry-picking instances of hyperbolic comments online,” NAF had not submitted evidence of doctors having been directly threatened, Short said.
Acknowledging that the accused Colorado Springs shooter, Robert Lewis Dear Jr., said after the shooting to law enforcement, “no more baby parts,” Short argued that there was no way of knowing that the videos provided the impetus for the murderous act.
“We don’t know if he saw a video, and if so, which one,” Short said.
“I don’t think you’re going to make any headway on irreparable injury, but you can argue how you want to,” United States District Court Judge William Orrick said, interrupting Short’s argument and signaling his skepticism toward her claim that NAF had failed to prove irreparable injury.
With a nod to the film A Few Good Men, Short argued that by blocking the release of the videos, the judge is telling Americans, “You can’t handle the truth.” It is beyond dispute that the videos are vital to the public interest, Short said.
“They signed two agreements and had no intention of following any of them,” Orrick said of Daleiden and his associates, before asking for a line of reasoning that he should follow to not impose a preliminary injunction.
The agreements Daleiden signed were boilerplate agreements, the enforceability of which must be weighed against the public interest, Short argued. She said the defendants are not responsible if the public acts “irresponsibly” as a result of the information contained in the videos, calling Dear a “crazy person.”
Linda Shostak, counsel for NAF, said that the First Amendment is not absolute, and can be limited for policy reasons.
She pointed out that the video footage doesn’t prove any criminality, noting that Daleiden’s affidavit, which contains claims that NAF is part of a criminal enterprise, should not be given any weight since he is not a medical expert or a lawyer. Furthermore, she argued, Daleiden is not worthy of belief because he admitted to being untruthful and concealing his identity; she pointed to the lawsuit brought by a tissue procurement company tied to Planned Parenthood—StemExpress—against CMP and Daleiden.
The judge in that case said Daleiden’s testimony was less worthy of credence than the opposing witnesses’ testimony.
As for CMP and Daleiden’s attempt to distance themselves from the rash of clinic violence in the wake of the videos, Shostak pointed to the fact that a Washington state man, Scott Anthony Horton, had been arrested on criminal charges of directing threatening messages to a StemExpress employee. The FBI thinks there’s a connection between the anti-choice smear videos and the subsequent violence, she noted.
CMP and Daleiden would have been free to continue the dialogue about abortion rights and fetal tissue donation without putting NAF members at risk, violating contracts, and misrepresenting who they are, Shostak argued.
This case has always been about its members, said NAF President and CEO Vicki Saporta, who attended the hearing on Friday.
“Our interest all along has been the safety and security of our members and since the first video was released in early July, NAF has reported an unprecedented increase in hate speech, threats, and calls to action against abortion providers which resulted in three people being murdered and nine injured in Colorado Springs,” Saporta said in a statement following the hearing. “And I think the judge clearly understood that our members are and continue to be at risk.”
The judge did not immediately issue a ruling and took the matter under advisement.
Orrick noted that he was inclined to believe NAF had made the requisite showing of irreparable injury (a judge can issue a preliminary injunction only if the party seeking the injunction faces a “substantial threat of irreparable injury.”) Orrick pointed to the increase in hate speech against abortion providers, incidents of death threats, arson, and the deadly shooting at the Colorado Springs clinic.
After the first round of videos were released, the judge issued a temporary restraining order blocking the release of any further footage.
Daleiden maintains that the order constitutes prior restraint, or pre-publication censorship. He said it is a violation of his First Amendment rights. Daleiden also contends that NAF is trying to hide evidence of criminal activity.
NAF contends that Daleiden waived any First Amendment right he may have had to publish the videos when he signed a confidentiality agreement promising not to disclose any information he learned at NAF’s private meetings without obtaining consent from NAF. The confidentiality agreement is part of a strict security protocol followed by NAF in order to protect its members from harassment by anti-choice radicals and terrorists.
Orrick seemed skeptical of Daleiden’s claims. He said that he had read the transcript of the videos and didn’t see any evidence of illegal activity on Planned Parenthood’s part. Every state and federal investigation launched by GOP lawmakers this year has turned up no wrongdoing by the health-care provider.