Anti-Abortion Activists Face Dubious Eavesdropping Charges in California

Attorney General Xavier Becerra uses privacy as a pretext for a political vendetta against critics of Planned Parenthood.


Center for Medical Progress

Yesterday California Attorney General Xavier Becerra announced 15 felony charges against two anti-abortion activists, David Daleiden and Sandra Merritt, in connection with their hidden-camera recordings of conversations with Planned Parenthood employees they sought to implicate in the illegal sale of fetal tissue. "The right to privacy is a cornerstone of California's Constitution, and a right that is foundational in a free democratic society," Becerra declared. "We will not tolerate the criminal recording of confidential conversations."

The right to freedom of the press, which Daleiden and Merritt claim they were exercising, is also foundational in a free democratic society, and it conflicts with California's dubious definition of the right to privacy. That conflict is especially troubling when law enforcement officials use privacy as a pretext to attack political opponents, which is what seems to be happening in this case.

Federal law and the laws of 38 states (as well as the District of Columbia) allow any participant in a conversation to record it, with or without the consent of the other parties. California, by contrast, requires the consent of all parties. Recording a "confidential communication" without the consent of all parties is a crime that can be charged as a misdemeanor punishable by up to a year in jail or as a felony punishable by up to three years in prison. The felony charges against Daleiden and Merritt include 14 secretly recorded conversations, plus a conspiracy charge.

Daleiden told The Washington Post he plans to argue that the conversations did not qualify as "confidential" because no party had a reasonable expectation that the discussion would not be overheard. On July 25, 2014, for instance, Daleiden and Merritt, posing as representatives of the fictitious Fetal Tissue Procurement Company, met with Deborah Nucatola, Planned Parenthood's senior director of medical services, over lunch at a Los Angeles restaurant. While testifying before the House Oversight and Government Reform Committee in September 2015, Planned Parenthood's president, Cecile Richards, said she had told Nucatola "it was inappropriate to have a clinical discussion in a nonconfidential, nonclinical setting." Other Planned Parenthood videos posted by Daleiden's Center for Medical Progress were also recorded in public settings, such as restaurants and conferences.

In 1999 a California appeals court ruled that NBC News producers did not violate California's wiretapping law when they secretly recorded a lunch meeting at a Malibu restaurant, since the targets, executives of a company that allegedly sold fraudulent toll-free numbers, "had no objective expectation of privacy in their business lunch meeting." The court noted that one of the executives conceded he "did not say anything he thought was a secret," that the meeting involved a standard sales pitch, and that the executives showed no reticence around the restaurant's staff.

According to the Digital Media Law Project's explanation of California's law, however, the setting of a conversation is not necessarily dispositive. "If you are recording someone without their knowledge in a public or semi-public place like a street or restaurant," it says, "the person whom you're recording may or may not have 'an objectively reasonable expectation that no one is listening in or overhearing the conversation,' and the reasonableness of the expectation would depend on the particular factual circumstances. Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place."

Daleiden suggested another possible defense in an email to the Associated Press. "The public knows the real criminals are Planned Parenthood and their business partners," he said. California's eavesdropping law allows the recording of a confidential communication "for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication" of certain crimes: "extortion, kidnapping, bribery, any felony involving violence against the person," and telephonic harassment. The illegal sale of fetal tissue does not seem to qualify.

Daleidan's lawyer, Steve Cooley, a former Los Angeles district attorney, describes him as "nothing more than a First Amendment journalist pursuing a good cause and fighting a battle, now a martyr who's being crushed by the power of the State of California." California's courts may not be receptive to a First Amendment defense in this case. A 1999 decision by the California Supreme Court suggests that Daleidan had a First Amendment right to post his Planned Parenthood videos, but that does not necessarily mean he had a First Amendment right to make the videos if doing so violated the eavesdropping law. "The press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws," the court said in that case, which involved a TV station's recording of a car accident victim. "The First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news."

That principle makes sense as a general matter, but it does not resolve the question of whether California's all-party consent rule for recording conversations protects a bona fide right that trumps what would otherwise be the First Amendment right to gather information. Unlike laws against trespassing and theft (which do not and should not become legal when committed by members of the press in pursuit of a story), the recording rule is arbitrary and does not apply in most of the country.

The First Amendment implications of the charges against Daleidan and Merritt become even clearer when you consider that the case was initiated by Becerra's predecessor, Kamala Harris, during her successful campaign for the U.S. Senate. Harris, a pro-choice Democrat, is a loud supporter of Planned Parenthood who stood to gain politically by pursuing a criminal case against two of the organization's most prominent critics. Her campaign website urged voters to "take a stand and join Kamala in defending Planned Parenthood." Harris's office collaborated with Planned Parenthood on A.B. 1671, a legislative response to Daleidan's videos that makes it a crime to publish "the contents of a confidential communication with a health care provider" recorded in violation of the wiretapping statute. Becerra, until recently a congressman and chairman of the House Democratic Caucus, was appointed to replace Harris by Gov. Jerry Brown.

Would California's attorney general have pursued felony charges against pro-choice activists who used hidden cameras to record meetings with the operators of "crisis pregnancy centers" that steer women away from abortion? If not, Becerra's concern about "the right to privacy" is nothing more than a pious-sounding cover for a political vendetta.

NEXT: Brexit Divorce Papers Filed, Planned Parenthood Video Creators Indicted, Privacy Reg Repeal Heads to Trump: A.M. Links

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  1. Don’t wanna be a thug, don’t go practicing journalism.

    1. There was a 2002 case that is remarkably similar to the Planned Parenthood one where the 9th circuit upheld ABC News’ right to record such things in California.…..03103.html

      1. That’s different. It is well established among constitutional law experts that ‘Freedom of the Press’ specifically means special privileges for employees of CNN, ABC, NBC, and CBS. I believe those four were specifically mentioned by Hamilton in one of the federalist papers.

  2. C’mon, Reason. You’re supposed to be full of Millennial cosmotarian hipsters. You have to denounce James O’Keefe so that you will continue to get invited to those sweet, sweet cocktail parties. WTF, guys?

    1. Busted for not reading beyond the headline before commenting!

      1. Reading isn’t cool, so you’re the one who was just busted for reading beyond the headline before commenting.

  3. I’ll bet investigative journalists think they’re the undercover cops of the news world.

  4. In 1999 a California appeals court ruled that NBC News producers did not violate California’s wiretapping law when they secretly recorded a lunch meeting at a Malibu restaurant, since the targets, executives of a company

    That’s totes diff because “executives of a company.” EVUL KKKORPORAYSHUNZ!!!11!11!!!!!1!!!!!!

  5. I have a lot of pet peeve rants. And this is one of them.

    The only possible reason for “two party consent” laws is to preserve your ability to lie about what was said. If you tell me that you were banging your wife’s sister, I can share that with the world. But in California, if I record that conversation to back up my account, I’m a felon. All this does is preserve the ability to lie about the contents of a conversation. Nothing more. It has very little to do with privacy, and everything to do with preserving the ability to deny.

    Plus, a tape or video of you saying something is much more powerful than a reporter quoting you. Just look at the Ray Rice situation. He told the NFL that he punched his girlfriend and knocked her out. They gave him a short suspension. Then the video surfaced. A video that full comported with what he told them. But it was on video. So they completely tossed him out of the league.

    The same thing is at work here. Some activist saying “they offered to sell fetal tissue from abortions” is not terribly powerful, and they can just call them cranks. Having your facility’s director on camera talking about how much fetal brain tissue they can deliver in a month is another thing entirely.

    So I hate these laws. Hate, hate, hate them.

    1. The political class will do anything to protect their ability to lie and deny it. If you allow this, it’s a slippery slope to political standards. Who in their right mind wants this?

  6. Squirrels ate my dang post.

    Just pretend you read the most brilliant and profound thing you’ve seen all month. And that it was strongly anti-dual party consent law.

    1. C-
      It looks like the squirrels just stored your comment awhile to see themselves through the lean times.

  7. Leave it to Jacob to unearth the facts and illuminate the objective context behind a pissing match between girl-bullying christianofascists and cynical lay looters cashing in on reaction to such religious coercion (NOT the free exercise thereof) to further entrench their own parasitical agenda. This sort of objective reporting helped the LP weigh in on over 90 electoral vote outcomes during this most recent dogfight.

    1. To hell with principles, amirite?

    2. Yes, all Christians who are concerned with abortion are “fascists”.

      Oh, wait, I’m a Christian, and I’m concerned with abortion …but I’m an An-Cap…

      So An-Caps are fascists. Hihn also told me this.

      1. Yes, all Christians who are concerned with abortion are “fascists”.

        Hank is a bit off-the-rails, but I don’t see where he claims that all Christians are fascists.

    3. We can’t have Christianofascists express concern over abortion! After all, we don’t want society to believe that it’s ok to kill people because they won’t be wanted by their families, or have defects, or are of an inferior race. Think of all the resources that would be wasted on undesirables if we go down this route!

      Oh, wait, those are typical fascist arguments — well, they are also typical collectivist arguments in general — and so-called “Christianofascists” oppose abortion in large part because they oppose these arguments in favor of abortion.

      I’m a so-called anarchocapitalist, and so I figure that murder of all types should be legal, for weird values of “legal”. However, I also have the view that if you think murder should be illegal, it isn’t such a stretch to think that abortion and euthanasia should be illegal too.

  8. Ha ha ha ha ha! I’ll put $2 on the econazis to win this one. Any christianofascists want a piece of the action?

    1. You’re a disturbed man

      1. You know what disturbs me, Fonzie Bear? People that don’t end their sentences with a period.

  9. This is just like that movie The Insider, except plug in Big Abortion instead of Big Tobacco, and instead of 60 Minutes plug in fuck you.

    And maybe still have the same soundtrack.

  10. The government can record you without notice in California, but the same behavior by a private citizen is a felony. Good to know.

  11. An organization that the Left coddles and deems to have a right to suck off the public teat gets legally protected in a way that would not apply to most other businesses. I am shocked, shocked, I say!

  12. Wait, I thought the fucking Democrats and Planned Parenthood fellaters all said this was staged bullshit? How can The State be pursuing charges if its fake? And really, I’m waiting for the day some douchebag politician eats it for using The State to unlawfully persecute people as a political prop…..

    1. The recording was real. The veracity of the content is irrelevant.

  13. Did the woman who taped Donald Sterling’s racist rant ever get prosecuted? How is this legally different?

    For the record, I don’t think that woman should have been prosecuted, and my overall position is that 2 party recording consent laws are stupid. But I think that’s more evidence that prosecutions under this law are politically motivated.

    1. That case would’ve been demonstrably stronger, as well. Sterling did have an expectation of privacy in his own home, in a way that should not exist in a public place.

      1. Until the judge turns it on its head and says a home is a public place in California. This may not be far off, just need the right political movement, the right case, and the right judge.

  14. “Would California’s attorney general have pursued felony charges against pro-choice activists who used hidden cameras to record meetings with the operators of ‘crisis pregnancy centers’ that steer women away from abortion? If not…”

    If the writer has proof that the AG wouldn’t pursue charges in this case, this is no better than the dubious documentary question and answer, “Coincidence? I think not.” It was a decent article up until that point but I see this a lot in Reason- good article up until some weird conclusion or personal opinion.

    1. Make that “unless the writer has proof…”

      1. They did not prosecute Donald Sterling’s mistress for secretly recording a conversation she had with him that exposed him as a racist. If the content of the recordings do not matter, she should have been prosecuted. It is almost like… I don’t know… The government is prosecuting people based on the contents of recorded conversations. Hmmmm….

    2. Pretty sure it goes without saying that the AG would not prosecute. Unless you want to pretend like this is not a politically motivated prosecution

    3. Do we KNOW that a poor white man in AL who couldn’t read would run afoul of literacy tests for voting in the 1940’s? I guess we do not.

    4. It’s impossible to prove a counterfactual speculation.

      I think you are trying a bit too hard to find something to complain about.

  15. People in California better be careful sending in funny videos to AFV without making sure everybody in the background gave consent first.

  16. I can imaging this would be an easy setup. Record yourself and someone else, then release the recording under the other person’s name. How will that other person prove it was NOT them who released it? On the other hand, if you’re going to record someone, then release that recording, make sure it’s anonymous and can’t be traced back to you. Any evidence would be circumstantial, which may be enough for the political opponents of those who run the state of California.

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