- The Washington Times - Tuesday, February 16, 2016

Journalism professor Mark Feldstein isn’t a fan of the pro-life Center for Medical Progress, but he is a staunch supporter of the First Amendment.

For that reason, he is troubled by the criminal charges filed against center investigators David Daleiden and Sandra Merritt stemming from their hidden-camera probe of Planned Parenthood Gulf Coast in Houston.

“Even though I support Planned Parenthood and do not share the politics of those going undercover, I think it’s unusual to prosecute when there’s a lack of intent to commit a crime, even when they’re not journalists,” said Mr. Feldstein, who teaches broadcast journalism at the University of Maryland’s Philip Merrill College of Journalism.

Mr. Feldstein isn’t alone. Other analysts, including some who support Planned Parenthood, have raised red flags about the Harris County grand jury’s indictments last month that touched off a brouhaha over whether investigators from the Center for Medical Progress should be considered journalists under the law — and whether that matters.

“[T]he criminal prosecution of Daleiden and Merritt, even if they did break the law, could chill undercover journalists and activists everywhere,” Cornell University law professors Sherry F. Colb and Michael C. Dorf said in a Jan. 29 op-ed on CNN.

Both identify themselves as pro-choice and say they support “the important work of Planned Parenthood,” but they find “the prosecution of these citizen journalists, however self-styled, deeply disturbing.”

“We decry the national campaign of defamation that Daleiden and his political allies have unleashed against Planned Parenthood,” said the professors. “But we also oppose efforts to criminalize undercover investigations, regardless of the investigators’ ultimate motives.”

The Center for Medical Progress investigators were indicted under Texas law on a felony count of tampering with a governmental record stemming from their use of fake driver’s licenses in their nearly three-year probe into Planned Parenthood’s link to fetal tissue sales from abortion.

Mr. Daleiden also was charged with attempting to procure human organs, namely fetal tissue, through a phony company, Bio Max.

In a statement released after the indictment, Mr. Daleiden argued that the center “uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press, and follows all applicable laws.”

Charles LiMandri, president of the Freedom of Conscience Defense Fund, is representing the Center for Medical Progress in a civil lawsuit filed by Stem Express. He insisted that Mr. Daleiden and Ms. Merritt were acting as journalists when they secretly videotaped Planned Parenthood officials.

“He did what other undercover journalists have done and are expected to do, and there’s never been to my knowledge any kind of indictment issued in this type of situation, nor should there be,” said Mr. LiMandri. “It’s really kind of amazing and audacious that they would indict him down there because of an investigation against Planned Parenthood.”

Criminals or journalists?

Planned Parenthood officials argue that Mr. Daleiden and Ms. Merritt are criminals, not journalists.

“Their defense just won’t fly. They didn’t document wrongdoing — they fabricated it,” Planned Parenthood spokesman Eric Ferrero said in a Feb. 4 statement. “We don’t know of any journalists who have engaged in wire fraud and mail fraud, lied to multiple government agencies, tampered with government documents, and broken laws in at least four states — only to lie about what they found. It’s hard to imagine anyone calling that ‘journalism.’”

Slate’s Dahlia Lithwick agreed that Mr. Daleiden and Ms. Merritt acted outside the bounds of traditional journalism in their undercover probe, which culminated in the release of undercover footage with Planned Parenthood officials and others starting in July.

“The difference between journalism and what CMP did is that journalists seek truth, while Daleiden seeks to show that somewhere in between the edited seams and faked voiceovers of his films there lies a truth he cannot quite prove but wants us to believe anyhow,” Ms. Lithwick said in a Feb. 2 article for Slate. “That can be called many things, but ‘journalism’ probably isn’t one of them.”

The center is fighting a series of lawsuits filed by the targets of the investigation, including Planned Parenthood, the National Abortion Federation and Stem Express, but it is the criminal case that has alarmed observers.

“We need journalists and activists to investigate,” the Cornell professors said in their op-ed.

They note that the charges against Mr. Daleiden and Ms. Merritt appear to arise “entirely out of their efforts to deceive Planned Parenthood officials in order to gain access.”

“The felony charge of tampering with government records relates to their alleged use of false IDs, and the misdemeanor charge of attempting to buy fetal remains seemingly overlooks the fact that Daleiden and Merritt were only posing as buyers to expose what they believed was illegal conduct by others,” said Ms. Colb and Mr. Dorf.

Their intent is crucial to the indictments, said Thomas More Society special counsel Peter Breen, a lawyer representing Mr. Daleiden.

“The point of the law with state governments and driver’s licenses is to prevent people from using them for unlawful activities,” Mr. Breen said. “Here, David Daleiden and Sandra Merritt were not using the driver’s licenses for unlawful activity; they were using them to expose and prevent unlawful activity. So it’s kind of a perversion of the law.”

Whether the pro-life activists also qualify as journalists may not be important, given that journalists have no special immunity from prosecution if they break the law during the course of an investigation.

“There is no inherent protection in the First Amendment that says you’re not subject to criminal laws because you’re claiming to be a journalist or claiming to engage in journalism,” said David Horowitz, executive director of the Media Coalition.

The First Amendment guarantees of a free press applies to nonreporters as well as reporters, Mr. Feldstein said.

“There are a couple of definitions to tease out. One is the whole question of, ‘Who is a journalist? And that’s murky, and rightly so, because the First Amendment effectively bars licensing of journalists or any other sort of official designation, as it should,” Mr. Feldstein said.

As far as he is concerned, Mr. Daleiden and Ms. Merritt are “clearly activists, not journalists” — but even so, “the First Amendment applies to them, as it does to everybody.”

Prosecutions rare

What bothers Mr. Feldstein and others is that prosecutors hardly ever charge those undertaking undercover investigations with such violations.

“De jure, they may be able to prosecute, but de facto, it’s exceedingly rare that this is done,” said Mr. Feldstein. “There have been other instances of undercover investigations, numerous ones, where these things happen and nobody was prosecuted.”

He cited the Chicago Sun-Times’ legendary 1978 sting operation in which the newspaper set up a fake bar, the Mirage, to expose city officials who were shaking down local businesses for bribes. More recently, two New York Daily News reporters used fake driver’s licenses for a story about whether bartenders could spot phony IDs.

“We know of no case where an undercover journalist has been prosecuted as if he were an 18-year-old trying to buy a beer illegally,” Mr. Breen said.

That doesn’t mean journalists are entirely comfortable with the idea of undercover investigations. Such probes should be undertaken only as a last resort, said Al Tompkins, senior faculty for broadcast and online journalism at the Poynter Institute.

“The Texas case involves deception,” Mr. Tompkins said in an email. “Journalists sometimes use deceptive tactics, but only as a last resort and with the full knowledge that if they break the law they will have to answer for that. Journalists should not seek immunity or protections not available to other citizens.”

The Sacramento Bee’s Joyce Terhaar said Mr. Daleiden was “far too casual about an ethical line taken seriously by journalists, particularly those from traditional print newsrooms.”

“It’s not routine for a reporter to pretend he or she is someone else, or to lie to a source. It’s not OK to make fraudulent documents to help with that pretense,” she said in a Jan. 30 column. “Beyond the legal issue is a practical concern — if the reporting approach is dishonest, how can anyone trust the final story?”

As far as Mr. Breen is concerned, the argument over whether Mr. Daleiden qualifies as a journalist is beside the point because he is not guilty either way.

“He is innocent of the charges brought against him, period, under the reading of the law,” said Mr. Breen. “And that’s being lost in all of this talk of journalism.”

On the felony count of using a fake government ID, he said Mr. Daleiden’s conduct falls under the Texas law’s exceptions. “In order to get to a felony, that has to be combined with an intent to defraud or harm, and that clearly is not present here,” Mr. Breen said.

The defense is planning to submit a motion to quash the indictments. The next hearing is scheduled for March 28 at the Harris County Courthouse in Houston.

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