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.