- The Washington Times - Monday, July 22, 2019

A federal judge in San Francisco has ruled that pro-life activists who shot undercover video at Planned Parenthood clinics can defend their actions as journalism at their trial in September, greatly lessening any potential penalties under state and federal laws for posing as biomedical officials to secretly record interviews.

U.S. District Judge William H. Orrick wrote that “absent a defamation claim,” the First Amendment bars Planned Parenthood from suing for millions of dollars in damages for security upgrades to its facilities that followed from the publication of secretly recorded videos by David Daleiden and fellow self-styled “citizen journalists” at the Center for Medical Progress.

“These damages are the result of third-party behavior and reaction to the publication of the video recordings,” Judge Orrick wrote in a tentative ruling, issued July 16.

In its 2016 lawsuit filed in U.S. District Court for the Northern District of California, Planned Parenthood accused Mr. Daleiden’s group of fraud and intrusion for publishing videos of clinic employees discussing selling fetal tissue for profit in 2015.

Planned Parenthood’s attorneys had argued in court that subsequent security measures such as cameras, fencing and bulletproof glass installed at clinics could be billed to Mr. Daleiden, with potential damages running as high as $20 million.



Judge Orrick disagreed, dropping potential damages to “little as $100,000,” defendants said.

“Now that all the facts, evidence and testimony are in, even Planned Parenthood’s favorite judge refuses to buy into the abortion giant’s fake news and lies about the honest motives and protected speech of pro-life citizen journalists,” Mr. Daleiden said in a statement on CMP’s website.

Many of Planned Parenthood’s other claims, including illegal wiretapping, fraudulent misrepresentation, trespassing and breach of contract will go forward at a Sept. 30 trial.

Previously, Judge Orrick had ruled that Mr. Daleiden’s group, which posed as biomedical companies to gain access to abortion providers conferences, misrepresented interactions with employees in hundreds of hours of videos.

In court last week, attorneys for the plaintiffs pointed to a 2015 shooting in Colorado Springs that killed three people and wounded nine others at a Planned Parenthood clinic as a consequence of the CMP videos.

California law enforcement officials never prosecuted Planned Parenthood clinics for violating bans on the profit-making sale of fetal tissue. In 2017, Orange County prosecutors reached a $7.7 million settlement with two bioscience companies accused of selling fetal tissue for profit.

In late June, Mr. Daleiden sent out a fundraising email in which he said his legal fees were “perilously low” and called Planned Parenthood’s lawsuit against him the “single most important pro-life case since Roe v. Wade,” the 1973 Supreme Court decision that legalized abortion.

Earlier this year, the U.S. Court of Appeals for the 5th Circuit ruled that Mr. Daleiden’s videos recorded in Texas clinics were “authentic” and reason enough for Texas to drop Planned Parenthood from its Medicaid reimbursement rolls.

Judge Orrick also stated in his tentative ruling that he is inclined to bar Mr. Daleiden’s defense team from using the “unclean hands defense.” Both sides had sought summary judgment in the suit.

Last week, Planned Parenthood announced the resignation of its top leader, Dr. Leana Wen, following a disagreement on the Board of Directors over the direction of the health care organization. The organization’s numerous litigation efforts reportedly were part of mounting pressure on the group’s leadership.

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