His videos may have GOP hardliners trying to shut down the government over federal funding for Planned Parenthood, but David Daleiden is losing badly in federal court, and will likely have to disclose his group’s donors as a result.
Last week, a panel of the federal Ninth Circuit decided that Daleiden’s Center for Medical Progress (CMP) waived its right to free speech when it signed a nondisclosure agreement (NDA) with the National Abortion Federation (NAF) in order to gain access to persons involved in fetal tissue research under false pretenses.
Surreptitious recordings of those meetings form the backbone of CMP’s sensational narrative. Citing the NDA which a Daleiden front entity called Biomax had signed in 2013, NAF filed suit against CMP in late July and won a temporary restraining order to block the release of further videos.
Contending that their ‘investigative journalism’ shows Planned Parenthood abortion providers illegally harvesting fetal tissues for sale, Daleiden’s organization has invoked the First Amendment. He rejects widespread criticism of his misleading edits and defends his organization as “citizen journalists” taking on a powerful organization.
However, there is no code of journalistic ethics on the planet which allows reporters to violate NDAs in pursuit of stories, even in the public interest, which is why most real reporters refuse to sign them at all.
Essentially, NAF contends that Daleiden is not running a legitimate news outlet, but working as a political ‘hit man’ for deep pockets in the anti-abortion movement, and that legal discovery will likely prove it.
In a decision handed down last Wednesday, the Ninth Circuit rejected CMP’s 32-page mandamus petition, which called for US District Judge William Orrick to stay discovery in NAF’s lawsuit and rule instead on a motion for a preliminary injunction.
In other words, Daleiden was trying to prevent the National Abortion Federation from obtaining evidence to prove their case — and he lost.
CMP had also tried filing an anti-SLAPP motion. California, the state where the case is being heard, has one of the toughest anti-SLAPP laws in the nation. A relatively recent innovation of the internet age, these statutes exist to uphold free speech against vexatious litigation by celebrities, companies, or other powerful entities who might abuse the courts to punish their detractors.
But CMP is being sued for a contractual fraud, not libel, and Judge Orrick found that the state law did not change the rules of procedure in federal civil courts. Instead, he determined that Daleiden’s anti-SLAPP motion raised further questions that can only be answered by the legal discovery process.
Put another way, at least one of Daleiden’s efforts to stifle NAF’s lawsuit has produced exactly the opposite effect.
The Ninth Circuit also upheld Orrick’s ruling on that issue in its decision last week, which means that CMP must now respond to questions from NAF — queries that will almost certainly include the identities of donors who funded Daleiden.
In their successful Ninth Circuit response, NAF highlights the history of violence and intimidation against abortion providers as one of the primary reasons they require participants at their events to sign nondisclosure agreements in the first place.
Daleiden has dodged questions about his ties to violent anti-abortion extremists. If CMP has accepted funds from advocates of ‘justifiable homicide’ against clinic workers and staff, for example, then it would be evidence that Biomax signed the NDA in bad faith.
Courts across the nation have consistently ruled that the act of signing an NDA waives some rights to free speech — which, again, is why legitimate journalists rarely ever agree to sign them.
At least eight states have now concluded independent investigations into the allegations raised by CMP’s videos. Despite efforts by one Republican governor to scrub clarifying language, all of the state investigations conducted so far have completely cleared Planned Parenthood of any wrongdoing.
Today, Missouri Attorney General Chris Koster announced that his investigation had uncovered zero evidence of unlawful activity by the Planned Parenthood clinic in St. Louis.
The activities that Daleiden has framed as criminal through creative editing and hyperbole are in fact completely legal. Federal law allows women to donate their aborted fetal tissue, and allows Planned Parenthood to charge fees for storage and handling.
Aborted fetal tissue research was uncontroversial for decades until anti-abortion activists reacted to the Supreme Court’s 1973 Roe v Wade decision by pressing Congress to pass a moratorium on federal funding. Congress later reauthorized fetal tissue research funding in 1993, setting up the system used now.
Having failed to persuade the court with his writ of mandamus, ironically Daleiden now faces the prospect of being the only party in the entire story who suffers the judgment of American courts.