Twenty state attorneys general and several nonprofit organizations such as Animal Outlook, People for the Ethical Treatment of Animals (PETA), Mercy For Animals, Inc. (MFA) and the Government Accountability have filed amicus briefs at the Ninth Circuit Court of Appeals in support of Sandra Merritt and her colleague, David Daleiden. Their briefs argue that the lower court’s decision against Merritt and Daleiden will harm First Amendment journalism, which often uses undercover recordings to reveal crime and abuse.
Liberty Counsel represents Merritt in the multimillion-dollar civil lawsuit regarding her undercover investigation of Planned Parenthood’s trafficking of human baby body parts.
In their brief, the attorneys general of Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia argue that the trial court erred in excluding the public policy defense, because the videos were used by law enforcement authorities – including some of these amici themselves – to successfully investigate and prosecute wrongdoers.
The AGs state, “The district court wholly dismissed the applicability of the public policy defense to enforcement of the contracts at issue—the predicate by which Plaintiffs purport to impose monetary damages for Defendants’ recording and dissemination of the videos at issue (the ‘CMP Videos’). These videos included surreptitiously recorded statements by various Planned Parenthood employees and associates, which inspired a wide range of government action by the executive and legislative branches at the federal, state, and local levels. Amici previously submitted briefs in related matters in opposition to an injunction limiting the disclosure of the CMP Videos to law enforcement.”
Animal Outlook, PETA, MFA, and the Government Accountability stated in their brief that undercover reporting is necessary to a free society; deception is central to undercover reporting; and investigative deception is constitutionally protected. They argue that the kinds of “damages” awarded to Planned Parenthood are barred by the First Amendment because they would chill and kill free speech.
The organizations state, “The First Amendment cannot countenance a system of law in which exposure of putative misdeeds—even by deception—is judged to be the actionable cause of injuries to the bad actor, rather than the potential misdeeds themselves. Any other rule would leave investigative reporters prostrate before the financially and politically powerful. Indeed, if left standing, the district court’s various decisions on recoverable damages will be a roadmap for investigative subjects to sue journalists, activists, and whistleblowers to chill their undercover investigative work…To be clear, organizations considering an undercover investigation now face the specter of potentially debilitating liability because they engaged in an investigation on a matter of public concern. In the end, if investigative reporting is to have any role in exposing fraud, abuse, malfeasance, and criminality, or facilitating dialogue and debate on matters of great public concern as it has for over a century, First Amendment limits on recoverable damages for nondefamation civil claims must be vigorously enforced.”
Liberty Counsel’s Founder and Chairman Mat Staver said, “For years, journalists have used the same undercover investigation methods as Sandra Merritt and David Daleiden. They did everything according to California law. Now the top law enforcement officers from 20 states and several nonprofit animal rights organizations see the danger in punishing Merritt and Daleiden for their First Amendment journalistic efforts to uncover the truth regarding Planned Parenthood’s illegal actions.”
