David Daleiden, the anti-choice activist behind the failed video campaign to smear Planned Parenthood as a “baby parts” vendor, won a small victory on Monday in his battle against a group of employees and scientists at a research lab at University of Washington (UW). A three-judge panel of the Ninth Circuit Court of Appeals ruled against the group, which is trying to block UW from giving Daleiden unredacted documents related to fetal tissue research—and including the names of the people involved—at the university’s Birth Defects Research (BDR) Laboratory.
The employees, suing on behalf of a class of plaintiffs, contend in their lawsuit that releasing their information would result in threats, harassment, and violence. The lower court granted them a temporary restraining order and, later, a preliminary injunction on that basis. The Ninth Circuit Court of Appeals agreed that disclosure might result in reprisals, but noted that the employees hadn’t made the case that each plaintiff was at risk.
So the Ninth Circuit, essentially, split the difference. It left in place the injunction blocking UW from disclosing the information, but ordered the lower court—and, by extension, the plaintiffs—to enter the necessary findings to support the injunction.
Daleiden filed a public records request under Washington’s Public Records Act along with Zachary Freeman, communications director of the anti-choice Family Policy Institute of Washington, requesting documents dating back to 2010. The documents that Daleiden and Freeman sought—purchase orders, invoices, emails, grant applications, contracts, and the like—included research lab staff and employees’ personal identifying information, and similar data about those with whom they corresponded.
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Concerned about threats and harassment that abortion clinic workers routinely face—violence that increased dramatically after Daleiden published the heavily edited Center for Medical Progress videos, as Rewire reported last August—staff, employees, and others with ties to the BDR Lab fetal research program wanted their identifying information redacted from the documents before UW turned them over. So a group of them, represented by attorney Janet Chung, filed a class action lawsuit against UW, Daleiden, and Freeman asking a federal court to block the release of the unredacted documents. (Due to the sensitive nature of the lawsuit, plaintiffs opted to sue anonymously—as John and Jane Does—rather than in their own names.)
In August 2016, U.S. District Court judge James L. Robart obliged. He granted a temporary restraining order (TRO) and in November 2016, converted that TRO into a preliminary injunction.
Judge Robart concluded that the research activity in which plaintiffs participated is a form of expression protected by the First Amendment, citing Dow Chemical Co. v. Allen. That Seventh Circuit ruling said, “Whatever constitutional protection is afforded by the First Amendment extends as readily to the scholar in the laboratory as to the teacher in the classroom.”
Even if the fetal tissue research were not protected by the First Amendment, Judge Robart explained, plaintiffs’ advocacy for the health and reproductive rights of women is protected—a point that Daleiden conceded, Robart noted.
“The Supreme Court has stated that those resisting government-required disclosure can prevail under the First Amendment if they can show a reasonable probability that the compelled disclosure of personal information will subject them to threats, harassment, or reprisals from either Government officials or private parties,” Robart wrote.
Robart based his ruling on numerous sworn affidavits from various plaintiffs detailing past and present harassment stemming from their ties with Planned Parenthood affiliates and research facilities.
But a three-judge panel of the Ninth Circuit Court of Appeals ruled that a more individualized inquiry was required.
“The district court relied on a blanket finding that the entire putative class was engaged in protected First Amendment activity—a class that the University says could be as large as 600 people, although notices were sent to only 156 people according to the record,” the court wrote in its order.
(In class action lawsuits, a person can be a member of a class without actually participating in the lawsuit. In a class action, a “named” plaintiff or group of plaintiffs represent the class of “unnamed” plaintiffs and all of that class’s interests.)
“To prevail on their First Amendment claim, the Doe Plaintiffs must show that particular individuals or groups of individuals were engaged in activity protected by the First Amendment and ‘show “a reasonable probability that the compelled disclosure of personal information will subject”‘ those individuals or groups of individuals ‘to threats, harassment, or reprisals’ that would have a chilling effect on that activity,” the appeals court said.
The Ninth Circuit pointed out that it agreed that redaction might ultimately be warranted, but that plaintiffs had not made their case in a specific enough manner.
“Although we agree with the district court that there may be a basis for redaction where disclosure would likely result in threats, harassment, and violence, the court’s order did not address how the Doe Plaintiffs have made the necessary clear showing with specificity as to the different individuals or groups of individuals who could be identified in the public records,” the court wrote.
“The district court also made no finding that specific individuals or groups of individuals were engaged in activity protected by the First Amendment and what that activity was,” the court continued.
The Ninth Circuit’s ruling leaves the preliminary injunction in place but instructs the lower court to “address how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups of individuals.”
The injunction will remain in place for 120 days. If the plaintiffs can make the individualized query the lower court is required to ask of them, the Ninth Circuit hinted that Daleiden is likely to lose the next round.