After Anti-Choice Smear Campaign Against Planned Parenthood, California Could Pass A Bill Criminalizing Non-Consensual Recordings Of Health Care Providers

Anti-Choice CMP Has Released Multiple Deceptive Videos Attacking Planned Parenthood -- All of Which Have Been Debunked. In the summer of 2015, David Daleiden and his anti-choice group, the Center for Medical Progress (CMP), released a series of deceptively edited videos alleging Planned Parenthood profited from selling fetal tissue. Scores of media outlets have confirmed that the footage shows no illegal behavior by, or on behalf of, Planned Parenthood, and that the words of Planned Parenthood personnel who were secretly filmed have been “grossly [taken] out of context.” Similarly, a growing number of state investigations have cleared Planned Parenthood of any wrongdoing. [Media Matters, 8/31/15; 8/24/15]

Wash. Post: New California Bill Would “Make It A Crime … To Carry Out And Distribute Undercover Video Or Audio Stings Against Planned Parenthood.” After CMP’s attempted smear campaign against Planned Parenthood, California lawmakers developed legislation to offer health care providers greater protections against being recorded without their consent. The Washington Post reported in a September 1 article that lawmakers were poised to pass legislation “that would make it a crime, punishable by a jail sentence, to carry out and distribute undercover video or audio stings against Planned Parenthood and other health-care groups.” The Post noted that although “California law, like laws in other states, already bars use of an electronic device to listen in on or record people without their permission,” the new law would make the offense “punishable by a fine, a one-year jail term or both for a first offense.” [The Washington Post, 9/1/16]

Fox News Used A Segment About The Bill To Push The Misinformation That CMP’s Activities Were Journalism

Fox News: California Bill Would Punish “Whistleblowers” Like CMP For Doing “Excellent Medical” And “Journalistic Exposé[s]” Using Techniques “Other Journalists Have Been Celebrated For.” During the September 1 edition of Fox’s The Kelly File, guest host Shannon Bream and TheBlaze’s Dana Loesch used a segment about the California bill as an opportunity to push the misinformation that CMP’s activities constituted journalism. During the segment, Bream argued that if the California bill passed it would prevent “whistleblowers” or “anybody with an exposé” from “approach[ing] the press” with their findings. Loesch agreed, adding that the bill would protect Planned Parenthood from work like “David Daleiden’s excellent medical exposé, journalistic exposé on what they were doing with these [fetal] body parts.” To prove her point, Loesch cited allegations from a previously discredited smear campaign done by the anti-choice group Live Action. Bream added that Daleiden’s work -- and the types of things that would be punishable under the California law -- are examples of techniques that “other journalists have been celebrated for.” From The Kelly File (emphasis added):

SHANNON BREAM (HOST): New developments tonight on a California bill poised to outlaw the type of sting operation that made news last summer about some of Planned Parenthood's practices. If signed by California's governor, this new bill would make it illegal to go undercover and videotape Planned Parenthood or any other health care worker. Furthermore, it makes it illegal to distribute any recordings, meaning anybody with an exposé cannot approach the press. Critics are already calling the bill dangerous for whistleblowers especially with revelations, you'll remember, like this one:

[CLIP OF CMP VIDEO]

[...]

BREAM: This seems like a pretty brazen attack on the First Amendment. There are journalists who have gone undercover and won scores of awards for doing the same thing, but not when it was about abortion. Double standard?

DANA LOESCH: No, you're absolutely right. No, it is a double standard. Shannon, you are absolutely right. And the ACLU [American Civil Liberties Union] agrees with us on this. This story is so bizarre that it has made friends of the ACLU and people like me, and the LA Times. So that's when you know something's up. Like the LA Times came out against this. The ACLU did too because this would be one thing -- Shannon, this would be one thing -- if there were not already existing laws that protected patient privacy.

BREAM: Mhm.

LOESCH: But this isn't an issue about patient privacy. This is Planned Parenthood, who has been busted 11 different times in the past several years, talking about how to -- discussing with pimps how to evade the system.

They didn't report child abuse, and they actually got sued in Colorado because they didn't report child abuse involving a 13-year-old. There was another case in which they were videotaped hiding up sexual abuse with two 13-year-olds, one of which they were telling to go ahead and get an abortion. They didn't report that in, they refused to follow that mandatory reporting. There are so many instances, not including David Daleiden's excellent medical exposé, journalistic exposé on what they were doing with these body parts.

So they keep telling on themselves. And so that's the entire reason, and it's ridiculous because if Planned Parenthood was a private organization, then they might have a better case of arguing for, oh, we don't want people to record us. But this, Shannon, this is an organization that receives half a billion in taxpayer dollars, so they need to be held accountable. Or if they don't like to be held accountable, they can just not cash those checks.

BREAM: Yeah, $500 million, as you know, of our taxpayer money that we'd like some transparency there. By the way, a penalty here could include on the first violation, a fine and a jail term of one year or both, and potentially a greater fine if they get caught doing this more than once. The recordings, I mean multiple years in jail for doing something that other journalists have been celebrated for! [The Kelly File, Fox News Channel, 9/1/16]

Fox News Has A History Of Giving CMP A Platform And Promoting The Myth That Daleiden Is A Journalist

Media Matters Study: Fox News’ Evening Programs Routinely Shared Myths About Planned Parenthood While Giving CMP Founder A Platform For Misinformation. In a recent study, Media Matters analyzed 14 months of abortion-related discussions on Fox News’ evening programs and found that during this time, Fox frequently gave Daleiden’s false allegations against Planned Parenthood an uncritical platform. Beyond consistently claiming that Planned Parenthood was “harvesting,” or “profiting” from the sale of fetal tissue, Fox News programs had Daleiden on as a guest seven times from July 15, 2015, through September 4, 2015. These appearances also included an hour-long special dedicated to repeating CMP’s baseless allegations. [Media Matters, 6/2/16; 6/1/16]

Bill O'Reilly: If Daleiden Is Charged, “All Of 60 Minutes Would Be In Jail, Because They Did Stings All The Time.” During the April 6 edition of Fox News’ The O’Reilly Factor, host Bill O’Reilly speculated that the California attorney general’s warrant authorizing a search of Daleiden’s home was “a political thing.” According to O’Reilly, if authorities were to charge Daleiden for the use of false identification in “exposing” Planned Parenthood, then “all of 60 Minutes would be in jail, because they did stings all the time.” Fox contributor Eboni Williams affirmed O’Reilly’s comments about the credibility of CMP’s work, calling it “investigative”:

BILL O'REILLY (HOST): This comes from the California attorney general. Why? Why was his house raided?

EBONI WILLIAMS: Yeah. Ms. Kamala, the A.G. in Cali, she disposed of 11 agents, which was pretty aggressive for the nature of the crime.

O'REILLY: Eleven agents went into the guy's house.

WILLIAMS: Eleven California agents went into the home to confiscate -- primarily, they wanted evidence. They wanted hard drives, computers and information, and of course those IDs you talked about. Rather low level felonies, but felonies indeed. What was interesting to me, Bill, and I'm looking at the search warrant right here, and I went through it with a fine tooth comb. They were looking for very low level stuff, so the 11 agents seem as bit aggressive. Now, normally when you have got 11 agents, drugs, arms, millions of dollars worth of property.

O'REILLY: Sure, a big thing. So what are they after Daleiden for doing? Portraying himself --

WILLIAMS: -- Fraudulent, yeah fraudulent identifications, fake drivers licenses.

O'REILLY: But then if that were the case, all of 60 Minutes would be in jail, because they did stings all the time.

WILLIAMS: It's investigative.

O'REILLY: I did them. I’ve done them, so we’d all be in prison.

[...]

MONICA CROWLEY: The timing is very suspicious.

O'REILLY: This is a political thing. [Fox News, The O’Reilly Factor, 4/6/16]

Fox Co-Host Kimberly Guilfoyle: CMP Videos Are “Investigatory Journalism.” During the January 19 edition of The O’Reilly Factor, Fox News co-host Kimberly Guilfoyle lauded CMP’s deceptively edited footage of Planned Parenthood officials as “investigatory journalism.” During the segment, Guilfoyle and Fox legal analyst Lis Wiehl discussed Planned Parenthood’s lawsuit against CMP for breaking federal and state laws concerning privacy and recording. Guilfoyle criticized the lawsuit, arguing that CMP was within its constitutional rights “and they were doing investigative journalism getting to the heart of the matter”:

KIMBERLY GUILFOYLE (CO-HOST): So, they’re suing the Center for Medical Progress -- which did 11 videos, if you recall last year -- showing this abhorrent practice. So what they’ve done is file a lawsuit Thursday in San Francisco alleging that, under civil rights law, saying RICO [Racketeering Influenced and Corrupt Organizations Act] violation -- that they used fraud -- to be able to get in and gain access and make these videos. That they should be stopped from doing so --

BILL O’REILLY (HOST): This is a federal lawsuit?

GUILFOYLE: Correct. That they should be stopped from doing so, that they should give the true identity and therefore these videos should be banned, and they should -- and they’re requesting damages.

O’REILLY: So this is B.S. This is just B.S.

LIS WIEHL: Well, no. There’s --

O’REILLY: A RICO statute?

WIEHL: Well the RICO is definitely a stretch --

O’REILLY: But that’s what they’re bringing it under!

WIEHL: But also mail fraud, saying you sent these emails and interstate mail. Pretending to be something you’re not --

[CROSSTALK]

GUILFOYLE: But they’re saying that this is within their First Amendment rights -- I believe that it is -- they were doing investigatory journalism getting to the heart of the matter. [Fox News, The O’Reilly Factor, 1/19/16]

Fox’s Megyn Kelly and Andrew Napolitano Defended CMP “Sting,” Worrying Texas Indictment Was A “Political Hit Job” Against The “Journalists” Involved. On January 25, a Houston grand jury indicted Daleiden and a CMP associate and cleared Planned Parenthood of any wrongdoing. Although the indictment was later dismissed on a technicality, on that evening’s edition of Fox’s The Kelly File, Megyn Kelly hosted Fox senior judicial analyst Judge Andrew Napolitano to discuss the grand jury’s decision. Both Kelly and Napolitano defended CMP’s “sting” operation and speculated about the possibility of the indictment being a “political hit job” on the “journalists” involved. From the January 25 edition of The Kelly File:

JUDGE ANDREW NAPOLITANO: So the prosecutor investigates this and she decides to present a case to a grand jury -- I haven’t seen a grand jury transcript yet, but we will -- not charging Planned Parenthood with selling body parts, but charging the journalists who were testing Planned Parenthood with participating in actual conspiracy to sell body parts.

MEGYN KELLY (HOST): Meanwhile, they didn’t actually want to buy any body parts at all. It was a sting --

NAPOLITANO: No, of course not. These are what we call crimes of intent -- you have to intend to commit this crime, you can’t just utter the words. So if a journalist says to Planned Parenthood, “Are you interested in selling body parts?” that journalist now has to worry about being indicted for suggesting a crime.

KELLY: So does this sound like a political hit job? Or what is this?

NAPOLITANO: Absolutely, this is a political hit job. [Fox News, The Kelly File, 1/25/16]

Fox’s Steve Doocy Defended Deceptively Edited Videos By Claiming “Journalists Use These Techniques Every Day.” On the January 26 edition of Fox News’ Fox & Friends, host Steve Doocy defended CMP after a Houston grand jury indicted founder Daleiden and an associate. Doocy also hosted Napolitano to discuss the “stunning turn in the investigation into Planned Parenthood.” Napolitano again floated accusations that Daleiden’s indictment could have been “a political hit job” on “bona fide journalists,” and warned that “this type of indictment” would “deter journalists who want to have conversations with people.” Doocy agreed and argued that “journalists use these techniques every day,” giving the examples of 60 Minutes and 20/20:

STEVE DOOCY (HOST): A stunning turn in the investigation into Planned Parenthood. Activists from the anti-abortion group who documented these potentially illegal practices by Planned Parenthood, the activists are now facing charges. The group's founder was indicted last night by a grand jury for tampering with government records. Fox News senior judicial analyst Judge Andrew Napolitano joins us live. So this grand jury was looking into whether or not Planned Parenthood had broken any laws. And rather than saying, yeah, they broke the laws, they said the people who did the investigating broke the laws.

ANDREW NAPOLITANO: This is really a head-scratcher. And I'm beginning to think that it is a political hit job on the people who did the investigating. So you have bona fide journalists assuming identities, pretending to be medical ethicists or people in the business of dealing with body parts going to Planned Parenthood saying, all these abortions, are you really selling the body parts? Well, yeah, we are. We do that with this. We do that with this. Are you interested in any further sale of the body parts? While they're having this conversation, pretending to be somebody that they're not, they're really, seriously pro-life people wanting to expose how government dollars are being used by Planned Parenthood, they are taping this. The tapes came out. There's a big uproar. The lieutenant governor of Texas, Dan Patrick, a fiercely pro-life person, asks this prosecutor to investigate. She investigates. Now, what does investigate mean? You empanel a grand jury of 23 people. You tell them who your target is.

DOOCY: Planned Parenthood.

NAPOLITANO: Right, and you produce evidence. The grand jury does not turn around and indict your witnesses, the people who brought you the case, without the prosecutor wanting this to happen. So why would this prosecutor appointed by Governor Perry, a former judge, a Republican woman, why would this prosecutor want to do this, other than to send a message like, I might be a Republican, but leave Planned Parenthood alone? Leave it alone -- they're using tax dollars to kill babies and sell their body parts.

DOOCY: Apparently one of the charges is purchasing human organs, all right. How can you be indicted for purchasing human organs without indicting the --

NAPOLITANO: The seller

DOOCY: -- the entity selling the human organs?

NAPOLITANO: You know, this type of indictment will chill, will deter journalists who want to have conversations with people. You have a conversation --

DOOCY: Journalists use these techniques every day. 60 Minutes, 20/20 --

NAPOLITANO: And so does the government use these techniques.

DOOCY: Of course. [Fox News, Fox & Friends, 1/26/16]

The Media Agree That So-Called “Stings” By Anti-Abortion Extremists Aren’t Journalism

Rewire: Amicus Brief Filed By Journalists “State[s] In Clear Terms Why David Daleiden’s Claims To Be An Investigative Reporter” Are Untrue And Harmful. Rewire investigative reporter Sharona Coutts reviewed an amicus brief filed by “18 of the nation’s preeminent journalists and journalism scholars” supporting the National Abortion Federation’s lawsuit against Daleiden’s fraudulent work. According to Coutts, “The amicus brief provided an opportunity for journalists to state in clear terms why David Daleiden’s claims to be an investigative reporter endanger the profession and its goal: to safeguard democracy by holding the powerful to account and keeping the public informed.” In the brief, these experts argued that if Daleiden were considered a journalist, it “would be both wrong and damaging to the vital role that journalism serves in our society.” Coutts noted that their message couldn’t be more clear: “David Daleiden is not an investigative journalist, and what he did is, in fact, at odds with the fundamentals of our craft.” [Rewire, 6/16/16]

Columbia Journalism Review: Daleiden’s Work “Doesn’t Qualify As Journalism On Legal Or Ethical Grounds.” After a “close analysis” of CMP’s videos and methods, the Columbia Journalism Review reported that Daleiden’s work “doesn’t qualify as journalism on legal or ethical grounds.” In the report, Ted Andersen wrote that CMP’s work was not an example of legitimate journalism and that Daleiden was merely “masquerading as an investigative journalist” in order to attack Planned Parenthood. [Columbia Journalism Review, 5/12/16]

Slate: CMP’s Work “Can Be Called Many Things, But ‘Journalism” Probably Isn’t One Of Them.” After a Houston grand jury indicted Daleiden, Slate’s law and courts writer Dahlia Lithwick argued that the distinction between Daleiden and real journalists is that “journalists seek truth” while Daleiden “allegedly falsified evidence” to bolster “a truth he cannot quite prove but wants us to believe anyhow.” Given that CMP's website was “only recently revised” to include any mention of being “citizen journalists,” Lithwick noted that Daleiden's claim to a journalist's First Amendment protections is even more unconvincing and a “nihilistic and cynical view of the profession.” Drawing on a wide variety of expert testimony and case law, she concluded that Daleiden's smear campaign “can be called many things, but 'journalism' probably isn't one of them.” [Slate, 2/2/16; Media Matters, 2/3/16]

Salon: Daleiden’s Videos Are A “Hoax” And He “Has No Right To Call Himself A Journalist.” According to Salon’s Amanda Marcotte, Daleiden’s defense that “his hoax videos are ‘journalism’ and therefore should enjoy enhanced legal protections” will hopefully be “throw[n] out of court with haste, because Daleiden has no right to call himself a journalist.” Marcotte explains that the problem isn’t that Daleiden has a “strong point of view,” it’s that he “has never shown anything but utter contempt for the truth,” which should be the cornerstone of investigative journalism in particular. She continued, “Whenever the truth and what he wishes were true collide, Daleiden has chosen to lie rather than tell the truth”:

In both the criminal and civil cases, however, it seems that Daleiden and CMP have landed on a legal defense: Arguing that his hoax videos are “journalism” and therefore should enjoy the enhanced legal protections that journalists get under the First Amendment. It’s an argument that judges will hopefully throw out of court with haste, because Daleiden has no right to call himself a journalist.

[...]

Daleiden is not a legitimate journalist, however, and he should not be allowed to pretend to be one in order to get special rights that other non-journalists don’t have.

This isn’t because Daleiden has a strong point of view. Plenty of legitimate journalists have strong opinions and use their journalism in order to get a wider hearing for those opinions. Investigative journalism in particular is often guided by a strong political viewpoint and a desire to unearth more information to support it.

No, the reason that Daleiden isn’t a journalist is because of his relationship to the truth. Regardless of your political views, the truth should always be the trump card for a journalist. Daleiden, however, has never shown anything but utter contempt for the truth in his work. Whenever the truth and what he wishes were true collide, Daleiden has chosen to lie rather than tell the truth. [Salon, 1/28/16]

The Guardian: Federal Judge’s Ruling Proves CMP Actors “Tailored Their Footage To Maximize Political Damage” And Have “No Evidence To Support” The Assertion They Were Acting As Journalists. On February 5, federal Judge William H. Orrick issued a preliminary injunction against CMP barring the group from releasing further deceptively edited footage obtained under false pretenses during National Abortion Federation (NAF) events. As Guardian reporter Molly Redden wrote, Orrick’s decision highlighted that CMP’s fraudulent videos were not journalism and that they risked inciting anti-choice violence. According to Redden, Orrick explained there was “no evidence to support” the assertion that CMP “used widely accepted investigatory journalism techniques.” Instead, she explained, Orrick found that CMP’s members “tailored their footage to maximize political damage” with the hope of increasing “political pressure” on Planned Parenthood:

The ruling, by US district judge William Orrick, also details for the first time how members of the group, the Center for Medical Progress, pursued their targets and tailored their footage to maximize political damage. At the annual meeting, hosted by the National Abortion Federation, activists operated off a “mark list” and, in one case, waited to approach a particular doctor until after she had been drinking.

Before releasing its first videos of Planned Parenthood employees, the center circulated a press release with “messaging guidelines”, Orrick wrote. The goal, the release said, was to inspire “Congressional hearings/investigation and political consequences” for Planned Parenthood, and increase “political pressure”.

Orrick previously blocked the center from releasing any footage taken at the NAF meeting. On Friday, he rejected claims by the Center for Medical Progress and its founder, David Daleiden, that its activities were a form of investigative journalism protected by the first amendment.

Videos of the NAF meeting “thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions of criminal misconduct”, Orrick wrote. “Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.” [The Guardian, 2/8/16; Media Matters, 2/8/16]

Read more from Media Matters about the rejection of CMP’s claim to be journalists here.