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Free Speech

Ninth Circuit Partly Affirms and Partly Reverses Judgment for Planned Parenthood Over Secret Recordings

"Journalism and investigative reporting have long served a critical role in our society. But journalism and investigative reporting do not require illegal conduct."


From Planned Parenthood Fed'n of Am., Inc. v. Newman, decided today by the Ninth Circuit (Judge Ronald Gould, joined by Judge Mary Murguia and District Judge Nancy Freudenthal):

Defendants-Appellants [Center for Medical Progress, David Deilen, and others] … used fake driver's licenses and a false tissue procurement company as cover to infiltrate conferences that Plaintiffs-Appellees … hosted or attended. Using the same strategy, Appellants also arranged and attended lunch meetings with Planned Parenthood staff and visited Planned Parenthood health clinics. During these conferences, meetings, and visits, Appellants secretly recorded Planned Parenthood staff without their consent. After secretly recording for roughly a year-and-a-half, Appellants released on the internet edited videos of the secretly recorded conversations.

Planned Parenthood sued Appellants for monetary damages and injunctive relief. After pre-trial motions and a six-week trial, Appellants were found guilty of trespass, fraud, conspiracy, breach of contracts, unlawful and fraudulent business practices, violating civil RICO, and violating various federal and state wiretapping laws. Planned Parenthood was awarded statutory, compensatory, and punitive damages as well as limited injunctive relief.

Appellants argue that the compensatory damages awarded against them are precluded by the First Amendment and that Planned Parenthood did not show that Appellants violated the Federal Wiretap Act…. We affirm the awards of compensatory and punitive damages, but we reverse the jury's verdict on the Federal Wiretap Act claim and vacate the related statutory damages for violating the Federal Wiretap Act….

"[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cohen v. Cowles Media Co. (1991). {We express no view on whether Appellants' actions here were legitimate journalism or a smear campaign because even accepting Appellants' framing, the First Amendment does not prevent the award of the challenged damages.}

In Cohen, a campaign worker, Mr. Dan Cohen, provided two newspapers with information damaging to his candidate's opponent.  Cohen revealed the information on the condition that his identity as the source be kept secret. However, the newspapers subsequently published articles revealing Cohen as the source of the damaging information, and Cohen was fired from the campaign.  Cohen sued the newspapers seeking compensatory damages under a state promissory estoppel cause of action.  He argued that the newspapers' publication of his name was a breach of promise, which caused him to lose his job and lowered his earning capacity. Id. In reasoning that the First Amendment did not bar the damages, the Supreme Court explained that "[i]t is … beyond dispute that '[t]he publisher of a newspaper has no special immunity from the application of general laws'" and "enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations."

We recently reiterated this holding, stating that "the First Amendment right to gather news within legal bounds does not exempt journalists from laws of general applicability." Animal Legal Def. Fund v. Wasden (9th Cir. 2018). In Wasden, we examined an Idaho statute criminalizing entry into or obtaining records of an agricultural production facility by force, threat, misrepresentation, or trespass; obtaining employment with an agricultural facility by force, threat, or misrepresentation with intent to cause harm; or entering and recording inside a non-public agricultural production facility without consent. In response to facial First Amendment challenges, we held that the provisions criminalizing entry and recording violated the First Amendment because the entry provision was overbroad and the recording provision was a content-based restriction that was unable to survive strict scrutiny. Conversely, the provision criminalizing obtaining records did not facially violate the First Amendment because it protected the facility owners' property rights from legally cognizable harm. The employment provision, meanwhile, complied with the First Amendment because the Supreme Court had previously held that such speech was unprotected by the First Amendment, and the provision was not aimed at suppressing a specific viewpoint. Wasden, therefore, repeated that facially constitutional statutes apply to everyone, including journalists.

Wasden was not novel within the Ninth Circuit. More than fifty years ago, we held that journalists could not use subterfuge to gain entry into a private home and secretly record an individual suspected of committing a crime. See Dietemann v. Time, Inc. (9th Cir. 1971). We noted that "[t]he First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office."

Adhering to Cohen, Wasden, and Dietemann, we repeat today that journalists must obey laws of general applicability. Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society. None of the laws Appellants violated was aimed specifically at journalists or those holding a particular viewpoint.

The two categories of compensatory damages permitted by the district court, infiltration damages and security damages, were awarded by the jury to reimburse Planned Parenthood for losses caused by Appellants' violations of generally applicable laws. As required by the Supreme Court in Cohen, and our court in Wasden and Dietemann, Appellants have been held to the letter of the law, just like all other members of our society. Appellants have no special license to break laws of general applicability in pursuit of a headline.

Appellants are incorrect in arguing that the infiltration and security damages awarded by the jury are impermissible publication damages. {The infiltration damages, totaling $366,873, related to Planned Parenthood's costs to prevent a future similar intrusion. They included costs for assessing Planned Parenthood's current security measures and exploring potential upgrades, reviewing and upgrading Planned Parenthood's vetting of visitors and attendees at conferences, monitoring social media for potential threats, hiring additional security guards for Planned Parenthood's conferences, and improving the badging and identification systems at the conferences. The security damages, totaling $101,048, related to Planned Parenthood's costs for protecting their doctors and staff from further targeting by Appellants and from foreseeable violence and harassment by third parties. The security damages included costs for physical security and online threat monitoring for the individuals recorded in the videos that Appellants released. }

In Hustler Magazine, Inc. v. Falwell, the Supreme Court held that a public figure could not recover damages for emotional distress or reputational loss caused by the publication of an ad parody about him absent a showing of falsity and actual malice. However, the facts before us are distinguishable from Hustler Magazine. The jury awarded damages for economic harms suffered by Planned Parenthood, not the reputational or emotional damages sought in Hustler Magazine.

Further, Planned Parenthood would have been able to recover the infiltration and security damages even if Appellants had never published videos of their surreptitious recordings. Regardless of publication, it is probable that Planned Parenthood would have protected its staff who had been secretly recorded and safeguarded its conferences and clinics from future infiltrations by Appellants and third parties. Appellants' argument that, absent a showing of actual malice, all damages related to truthful publications are necessarily barred by the First Amendment cannot be squared with Cohen. In Cohen, the Supreme Court upheld an economic damage award reliant on publication—damages related to loss of earning capacity—even though the publication was truthful and made without malice.

Our decision does not impose a new burden on journalists or undercover investigations using lawful means. From the beginning of their scheme, Appellants engaged in illegal conduct—including forging signatures, creating and procuring fake driver's licenses, and breaching contracts—that the jury found so objectionable as to award Planned Parenthood punitive damages. Journalism and investigative reporting have long served a critical role in our society. But journalism and investigative reporting do not require illegal conduct. In affirming Planned Parenthood's compensatory damages from Appellants' First Amendment challenge, we simply reaffirm the established principle that the pursuit of journalism does not give a license to break laws of general applicability.

But the court held that defendants weren't liable under the Federal Wiretap Act:

At trial, Planned Parenthood alleged that Appellants recorded Planned Parenthood's staff forty-two separate times at conferences, lunches, and health clinics without their consent in violation of the Federal Wiretap Act. Planned Parenthood argued that the criminal or tortious purpose behind these recordings was to further Appellants' civil RICO enterprise with the ultimate goal of harming or destroying Planned Parenthood. Planned Parenthood also contended that Appellants' civil RICO scheme served the same purpose: harming and destroying Planned Parenthood.

The jury agreed with Planned Parenthood and determined that Appellants had illegally recorded Planned Parenthood staff in all forty-two of the pled instances. The jury awarded Planned Parenthood damages based on these recordings, and, pursuant to the jury's findings, the district court awarded statutory damages to various Planned Parenthood entities for these same violations.

{The jury awarded Planned Parenthood approximately $100,000 in compensatory damages related to the Federal Wiretap Act claim, and the district court awarded statutory damages of $90,000. Additionally, the jury awarded Planned Parenthood $870,000 in punitive damages for claims of fraud, trespass, breach of Maryland wiretapping law, and breach of federal wiretapping law. The jury did not specify which claims the punitive damages related to.} …

The Federal Wiretap Act generally prohibits any person from intentionally recording an oral communication. One exception to this broad prohibition is that a person may record a conversation in which he or she is a party unless the "communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."

A recording has a criminal or tortious purpose under § 2511(1) when "done for the purpose of facilitating some further impropriety, such as blackmail." This criminal or tortious purpose must be separate and independent from the act of the recording. Put another way, the independent purpose must be "essential to the actual execution of an illegal wiretap … [and] directly facilitate the criminal conduct." The recording party must also have the independent criminal or tortious purpose at the time the recording was made.

With this understanding, it is clear that Appellants' violations of civil RICO could not have served as the criminal or tortious purpose required by § 2511(2)(d). Planned Parenthood alleged that the criminal or tortious purpose of Appellants' civil RICO violation was to destroy Planned Parenthood. Planned Parenthood similarly argued that the purpose of the secret recordings was to further Appellant's civil RICO scheme, which sought to destroy Planned Parenthood. However, § 2511(2)(d) requires that the criminal or tortious purpose be independent of and separate from the purpose of the recording. Planned Parenthood runs afoul of this requirement by reusing the same criminal purpose—furthering the civil RICO scheme to destroy Planned Parenthood—as both the purpose of the civil RICO claim and the independent criminal or tortious purpose of § 2511(2)(d).And, Planned Parenthood's argument is circular: according to Planned Parenthood, the civil RICO conspiracy is furthered by the recordings, and the recordings themselves further the ongoing civil RICO conspiracy. Such reasoning is not permitted by § 2511(2)(d).