You Don't Have to Oppose Abortion to Worry About Planned Parenthood Video Indictments

Turning journalistic deception into legal matter can have a chilling effect.


"Whose ox was gored?" makes for a terrible litmus test.
Center for Medical Progress

A grand jury in Texas responded to an undercover investigation of Planned Parenthood's fetal tissue practices by indicting not employees of the abortion and women's healthcare provider but rather the investigators. They are charged with using fake California identifications for the investigation (a felony) and attempting to buy fetal remains (a misdemeanor).

Law professors Sherry Colb and Michael Dorf, who have written a book about the relationship between arguments used for abortion rights and those used for animal rights, took to CNN to express concern about these indictments. They are pro-choice and support Planned Parenthood. Nevertheless, they are concerned about how indictments like this could affect citizen investigations not just of Planned Parenthood but elsewhere:

The felony charge of tampering with government records relates to their alleged use of false IDs, and the misdemeanor charge of attempting to buy fetal remains seemingly overlooks the fact that Daleiden and Merritt were only posing as buyers to expose what they believed was illegal conduct by others.

Whatever the precise facts of this case prove to be, the prosecution has broader implications, and not just for abortion and anti-abortion speech. Undercover exposés play a vital role in informing the American public of important facts that would otherwise remain hidden.

For example, Upton Sinclair's muckraking 1906 novel "The Jungle" was based on his incognito work in the Chicago meatpacking industry. Timothy Pachirat's more recent "Every Twelve Seconds" shows the impact of a modern slaughterhouse on the workers and animals unlucky enough to find themselves in its confines. Unfortunately, the courts have not consistently protected undercover reporting.

Animal rights activists who gain access to farms, slaughterhouses and laboratories by disguising their true intent may face criminal charges. In a carefully reasoned opinion last August, a federal district judge invalidated Idaho's "ag-gag" law on First Amendment grounds, but the state has appealed, and the ultimate outcome remains uncertain.

Read more here, and more about striking down "ag-gag" laws here.

I do want to take issue with some of Colb and Dorf's argument though. They do not seem to want to moderate the rights of citizen or undercover journalists with any sort of understanding that there's such a thing as private property. They complain about censorship that can be brought about through the application of general laws that aren't about speech at all, just as with this case. But they also seem to think that the antidote for this is essentially the government giving a pass to all sorts of possible crimes, including trespassing, in the pursuit of a story:

To be sure, legislators and judges have good reason to tread carefully in recognizing a journalist's right of access to private property. In the age of Facebook and YouTube, anyone with a mobile phone can plausibly claim to be a citizen journalist.

Accordingly, any right of undercover access would need to be limited to matters of genuine public concern, lest snoops posing as door-to-door salespeople and housekeepers violate legitimate interests in privacy. Even journalists or activists investigating a story in which the public has a real interest should not be given carte blanche to expose truly private facts, such as the identity or medical history of Planned Parenthood patients.

Problem one: Anyone with a mobile phone is a citizen journalist. Journalism is a thing that people do, not a thing that people are. Problem two: Who would be the person who would be deciding what are "matters of genuine public concern" in the first place? It would undoubtedly be a government authority of some sort. Would people have to seek permission in advance from this nebulous authority figure for permission to engage in undercover journalism? Or would they have to hope after the fact that these same government authorities will objectively make a decision? Why on earth would anybody trust such a system?

Like every other right, journalistic practices are limited to the extent that they interfere with the rights of others. Maybe the appropriate way to evaluate investigative journalists' behavior is to ask "Whose rights were violated here?" when trying to determine whether the law should apply. Whose rights did the Center for Medical Progress violate by having fake identifications and pretending they wanted to buy fetal tissue (when they obviously had no intention of doing so)? That's a little bit different from the government giving clearance to activities like trespassing and vandalism to try to get access to where somebody thinks something bad may be happening. 

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  1. This tactic has been used in much more egregious ways by liberal and environmental activists for decades. It’s funny how they’re all celebrating these charges.

    1. Luckily, the tactic will still be used for correct causes and investigations by well-meaning activists.

      Icky evil socony bastards should learn laws are there to prevent scum like them.

      “You are probably thinking, has he issued five subpoeans or six. To tell the truth, I kind of lost count.”

  2. Michael Dorf

    He was good in ST:TNG

    1. You mean Warf

      Trigger Warning: Powered by Hulu

    2. Michael Dorn played Word. Tim Conway played Dorf.

    3. I think you mean Fred “The Dorf” Dorfman.

  3. Maybe the possibility of jail time just comes with the territory of trying to use subterfuge to expose corruption or just bad practices. TANSTAAFL.

    It raises a larger question: Can something be wrong but justified? I think the answer is probably yes, but you still have to face the consequences.

    1. Maybe the possibility of jail time just comes with the territory of trying to use subterfuge actually engaging in fraud. FTFY

      Those activists (and journalists) know the risks they’re taking.

      1. See below. Its not at all clear this was (technically) fraud, because I don’t see a legally cognizable harm suffered by PP.

      2. Investigative journalism is fraud. Of course. Remember the time that liberal activist illegally taped Romney’s 47% speech and tanked his campaign, then got charged with fraud and went to jail? Yeah, good times.

  4. “Problem one: Anyone with a mobile phone is a citizen journalist. Journalism is a thing that people do, not a thing that people are.”

    Even if they didn’t go to Columbia?

    1. I think prices are better in Peru.

  5. Maybe someone can help me out who knows about Texas law and its enforcement:

    If Johnny Fratboy makes a fake ID so he can get booze, is that a felony?

    1. I got popped with a fake id in college, but the cop just took it. This was in Lubbock.

    2. Is he stealing info from someone?

      1. Just like Adam and Eve and the tree of knowledge of good and evil, the fratboy is stealing from those over 21 the information of what it’s like to be blasted.

    3. If Johnny Fratboy makes a fake ID so he can get booze, is that a felony?

      That was my question as well. It certainly sounds like the prosecutor has a political axe to grind. It sounds like he not only decided to stretch the investigation around to ensure an indictment not of the putative targets of the investigation but of his political opponents, he also decided to stretch “tampering with government records” to include fake ID’s.

      Just going off of the name of the law he cites, there are no government records tampered with unless they actually went to the State of California and obtained an ID under false pretenses. Or maybe they paid off someone in the records room to create a false identity for them. But I don’t think this is what he is alleging.

  6. Clever, to slide this in there right before the PM links, so as to avoid the epic skub fight it would have turned into.

  7. The charge for attempting to buy fetal remains is obviously bogus and should be thrown out immediately. As noted, they lacked the requisite intent.

    The tampering with government documents charge is only a felony if “the actor’s intent is to defraud or harm another”.


    I don’t know that the reporters actually intended to defraud Planned Parenthood. Here’s the definition of fraud in Texas:

    To establish common law fraud, a plaintiff must prove (1) the defendant made a material
    representation, (2) which was false, (3) which was either known to be false when made or which
    was recklessly made as a positive assertion without knowledge of its truth, (4) which the
    speaker made with intent that it be acted upon, and (5) the other party took action in reliance
    upon the misrepresentation, and (6) thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.
    3d 749, 758 (Tex. 2001).

    I think it comes down to the last element. Did Planned Parenthood suffer a legally cognizable harm as a result of the deception? If PP can’t win a case for defamation (and I don’t think they can), I don’t see how there can be a felony here.

    Assuming no intent to commit fraud, that still leaves intent to harm. I’m a little skeptical that the courts should recognize the “intent to publish what somebody actually said” as “intent to harm” .

    1. So, you’re totes OK with anti-cruelty activists using those same tactics, right?

      1. Are the anti-cruelty people doing an undercover investigation of how some dairy farm is in fact being cruel to the animals?

  8. Like every other right, journalistic practices are limited to the extent that they interfere with the rights of others.

    Which is why they must be destroyed for presenting fake IDs, which violate people’s rights to, uh….hm.

  9. “I think it comes down to the last element. Did Planned Parenthood suffer a legally cognizable harm as a result of the deception?”

    isn’t having to be called before congress harmful? i mean, if nothing else, there seems to be a direct link to being in the proximity of a politician and a camera, and a loss of brain cells….according to a study from a source that eludes me at the moment.

    1. They also *did* lose funding in multiple states, had to undergo multiple investigations, got maliciously attacked on the national stage, and so-on.

      People acting like this is a “no harm, no foul” bit seem to be willfully forgetting all the consequences from the false allegations that they were crowing about last summer.

      1. Which “false” allegations are you referring to? If there are demonstrably false allegations then a PP defamation case would be a slam dunk. It’s far from it.

      2. So PP wasn’t actually selling fetal parts?

      3. If they suffered as a result of doing bad or illegal things, then I don’t see it as harm – they got there just desserts. If they had done nothing wrong but were harassed then they might have a case.

      4. Which is why PP is so totally suing for libel….

  10. I asked this elsewhere and I’ll ask again. When the fuck did Planned Parenthood become a government agency? How is it that those two are being charged with giving fake IDs to a fucking corporation? Fake IDs, I might add, FROM ANOTHER STATE. Texas should have ZERO jurisdiction in that matter.

  11. The prosecutor in Texas wouldn’t have even been investigating Planned Parenthood, and then the video-makers, if it wasn’t for the video-makers false allegations.

    So sure, there’s some hypocrisy on the left. But much bigger then that is that this whole thing is just a big ol’ “hoisted on your own petard” moment.

    1. Yeah, um, you’ll have to point out the ‘hoisted on your own petard’ clause in the constitution, because as far as I can tell, this isn’t how it’s supposed to work.

      If they found PP clear of wrongdoing, then that’s that. Going after investigative journalists for doing something that news organizations have done since the invention of the camera smacks of political retribution. Which of course it is.

    2. Which false allegations?

  12. Cindy Crawford: Model Announces Plan to Retire at Age 50

    “I’m sure I’ll have my picture taken for 10 more years, but not as a model anymore,” Crawford told United Airlines’ Rhapsody magazine. She turns 50 on Feb. 20.

    1. d’oh!
      sorry, wrong tab.

  13. I thought they had real IDs from Cali that they had obtained fraudulently. That is the IDs were real but had a fake name and address.

  14. Investigative journalism is one thing; fraud is quite another. The videomakers clearly committed fraud and should be held accountable.

    1. In order to commit fraud, you have to gain something from the party you lied to.

    2. Please do explain the difference. In detail. Thanks.

  15. It is a joke how conservatives purposely put forth garbage analogies. Where an undercover journalist documented illegal animal cruelty , use of a forged ID might be overlooked. There was nothing illegal done by Planned Parenthood, merely acquisition of gross out material for propaganda.
    Daleiden was not a legally authorized to purchase fetal tissue as the tissue was not going to medical research nor therapy. In addition to Daleiden caused considerable damage to Planned Parenthood, he was defrauding women who had given informed consent that donated fetal tissue would go only to medical research or therapeutic use. That is a HUGE distinction with exactly nothing comparable.
    If Daleiden actually had uncovered something illegal, he would have no need to misstate the law nor omit it, yet did so repeatedly.
    The author claims it’s obvious Daleiden was not going to buy fetal tissue. That argument could be considered if Daleiden was in PP office a single day. It’s obvious to me he wanted the fake company Biomax appear to legitimately acquire fetal tissue and made a legal and contractually binding offer.
    I expected something more from Reason than the usual conservative garbage talking points with a shiny veneer gained from grasping at straws from a random liberal dissenter.

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