Court mostly upholds verdict against activists behind undercover Planned Parenthood videos

A federal court largely upheld a nearly $2.5-million jury verdict Friday against a group of antiabortion activists who secretly recorded Planned Parenthood employees and later edited the videos to suggest the organization was illegally profiting off the sale of fetal tissue.

The three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously rejected the notion, put forward by the activists, that they were acting as undercover investigative journalists and therefore shielded from paying such damages by the 1st Amendment and other publishing protections.

Rather, the court found, the activists were guilty of trespassing, fraud, conspiracy, breach of contract, unlawful and fraudulent business practices and other federal and state laws — which are applicable to everyone, including journalists.

“Journalism and investigative reporting have long served a critical role in our society,” Judge Ronald Gould, a Clinton appointee, wrote for the court. “But journalism and investigative reporting do not require illegal conduct.”

Gould was joined by Chief Judge Mary Murguia and Judge Nancy D. Freudenthal, a U.S. District Court judge in Wyoming who was sitting on the appellate panel by designation. Both are Obama appointees.

Attorneys for the activists did not immediately respond to a request for comment Friday.

Helene Krasnoff, vice president of public policy litigation and law for Planned Parenthood Federation of America, said in a statement that the organization was “thrilled” with the ruling in the case, which was filed in San Francisco in conjunction with various local Planned Parenthood affiliates, including seven in California.

Krasnoff said the appellate court had made clear, again, that “the only people who engaged in wrongdoing were those behind this malicious fraud.”

Krasnoff said the lawsuit was “never about monetary gain” but “exposing the fraudulent and illegal actions” of the activists and ensuring Planned Parenthood could continue serving its patients.

The undercover videos, which caused a political uproar in 2015, were fraudulently obtained by David Daleiden and fellow activists with the Center for Medical Progress. The activists obtained the videos by using fake driver’s licenses and creating a fake tissue procurement company to trick the Planned Parenthood employees into chatting at conferences, at a clinic and over lunches, sometimes as they encouraged the employees to consume alcohol.

As The Times and the Investigative Reporting Program at UC Berkeley have previously reported, the activists prepped for the conversations, intentionally sought to introduce inflammatory phrases such as “fully intact baby” into them, and used methods geared more toward political provocation than journalism.

The videos spurred multiple investigations, but none found wrongdoing by Planned Parenthood. One grand jury tasked with investigating the organization in Texas instead brought charges against the activists.

In the lower federal court, Planned Parenthood was awarded nearly $2.43 million in an assortment of damages, including $870,000 in punitive damages for claims of fraud, trespassing, and wiretapping violations. It was also awarded nearly $470,000 in compensatory damages to cover costs the organization incurred to prevent similar security breaches in the future and to provide its involved employees with security amid the political fallout.

The panel Friday affirmed those damages.

It did not rule entirely in Planned Parenthood’s favor, though.

The panel reversed a lower court decision granting the organization $90,000 in statutory damages related to the activists’ purported violation of federal wiretap law, finding claims that the videos were recorded for criminal or otherwise wrongful purposes were not proven.

In the opinion, Gould was careful to note that the court’s findings as to the activists’ actions, which he described as “subterfuge,” did not in any way “impose a new burden on journalists or undercover investigations using lawful means.”

Instead, he wrote, the court was simply reaffirming “the established principle that the pursuit of journalism does not give a license to break laws of general applicability.”