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Are the secret Planned Parenthood videos protected under the 1st Amendment?

Are the secret Planned Parenthood videos protected under the 1st Amendment?
Lawyers for David Daleidan argue that he did not break the law when he and his hired team secretly collected the footage of Planned Parenthood executives. (The Washington Post / The Washington Post/Getty Images)

A judge in San Francisco will hear arguments Friday on whether undercover videos showing Planned Parenthood executives talking candidly about the harvesting of fetal tissue represent undercover journalism protected by the 1st Amendment or an incitement to violence against abortion clinics nationwide.

An anti-abortion activist secretly recorded closed-door conferences of abortion providers and posted portions on the Internet last summer, prompting congressional hearings, state investigations into fetal tissue sales and a storm of negative publicity for Planned Parenthood.

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FOR THE RECORD:

Planned Parenthood videos: In the Dec. 18 California section, an article about legal arguments concerning undercover Planned Parenthood videos misspelled the last name of reporter Bo Kovitz as Kravitz. —
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Lawyers for abortion providers contend that the videos have contributed to an upsurge in attacks on clinics, including a shooting at a Colorado Springs, Colo., Planned Parenthood clinic last month that left three dead and nine injured.

At the request of the National Abortion Federation, an umbrella group of abortion providers, U.S. District Judge William H. Orrick in late July temporarily sealed the full 504 hours of footage. Lawyers for David Daleiden, the anti-abortion activist who created the videos, are trying to lift the seal.

Daleiden, 26, created a phony identity and a bogus medical research company to gain the confidence of the abortion community. On the footage released so far, Planned Parenthood executives attending conferences in California and Baltimore can be heard offering coarse descriptions of abortions and discussing whether abortion procedures might be altered to procure intact organs.

The abortion federation sued Daleiden, contending that the videos should be sealed indefinitely because providers could face physical harm and damage to their reputations if more footage were released.

Lawyers from two conservative legal foundations that have taken up Daleiden's defense argue that he broke no law — and that even if he did, the footage should be unsealed as a matter of public interest.

"It is clear people are upset hearing about providers talking about baby parts, whether they are selling them or not," said Catherine Short, a lawyer representing Daleiden. "They try to brush that aside."

The legal foundations have been joined by Republican attorneys general from seven states, with Arizona in the lead, who say law enforcement agencies need unfettered access to the recordings so they can investigate Daleiden's claim that abortion providers profit from the sale of fetal tissue.

On Friday, the judge will also consider whether Daleiden should be held in contempt for violating the seal by giving congressional committees copies of everything he produced, although the panels had subpoenaed only a portion.

Daleiden's cause has been taken up by the Reporters Committee for Freedom of the Press, which filed a brief arguing that the seal on Daleiden's material amounts to a prior restraint on free speech.

"A lot of this might get lost in the broader abortion politics, but this could potentially lead to some additional controversy and statements about what this means for who counts as media," said Paul Nolette, a political science professor at Marquette University in Wisconsin. "This is representative of larger issues about social media and how 1st Amendment law ties into that, which is very much unsettled at this point."

It is lawful to use fetal tissue for medical research, but not for abortion providers to profit from its sale. Tissue and isolated stem cells are used in research into AIDS, muscular dystrophy and Parkinson's disease, among other conditions.

Planned Parenthood says it has never profited from making fetal tissue available for research. Rather, the organization says, it has collected reimbursement for ensuring safe transfer of tissue and other expenses. After the outrage provoked by Daleiden's tapes, the organization said it would no longer accept reimbursement.

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The National Abortion Federation says the footage could expose now largely anonymous clinic workers to what federation lawyer Derek Foran called "ugly, ugly stuff." The federation cites an escalation in violence against abortion clinics since the partial release of the videos last July, including an arson attack in Thousand Oaks, as well as federal charges unsealed last week against a Seattle-area man who posted threats on a national news site against employees of a fetal tissue supplier shown in Daleiden's videos.

According to an FBI affidavit, the man began posting "kill the killers" messages two days after Daleiden's footage went viral. "Your lives don't matter nearly as much as your deaths do," he allegedly wrote in one post.

Investigators said another man, Robert Dear, accused in the November shooting at the Colorado Springs Planned Parenthood clinic, referred to "baby parts," a refrain in Daleiden's videos.

Daleiden has deplored violence against clinics, and his supporters say criminal acts by others cannot justify keeping the videos sealed.

"I don't think free speech can be held captive to the actions of a man who is mentally disturbed," Short said.

Daleiden, a graduate of Claremont McKenna College, declined to be interviewed for this article and has refused to identify his backers.

In court filings, Daleiden contends he hired independent contractors to assist his work, including an actress. Together, they posed as eager buyers of tissue and organs from aborted fetuses.

According to court records, Daleiden's team hid cameras in water bottles, ties and purses.

In one taped moment last May at a Northern California bistro, Daleiden spoke to executives of a medical research supply company who wanted to sell fetal tissue to his phony company. In the conversation, he suggested tampering with how doctors performed abortions.

Afterward, Daleiden joked on tape about the strained smiles of the executives when he made the macabre suggestion to ship tiny intact heads via FedEx. He said the executives nevertheless seemed willing to work with him, and he clapped in apparent glee.

His reaction was captured by his camera, disguised as a shirt button.

It is unclear what the as-yet-unreleased 494 hours of footage contain that the earlier videos do not, though logs filed in court show that the material includes discussions of late-term abortions and conversations recorded during cocktail receptions and at a bar.

Ted Andersen, Elizabeth Herman, Jenny Manrique, Jeremy Breningstall and Gabriel Sanchez contributed to this report. 

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About this story

This article was prepared in collaboration with the Investigative Reporting Program, a nonprofit newsroom at the UC Berkeley Graduate School of Journalism funded by foundations and individual donors.

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