On Tuesday, Liberty Counsel filed the reply brief for the petition for writ of certiorari asking the U.S. Supreme Court to review a ruling by the Ninth Circuit Court of Appeals against Sandra Merritt in Planned Parenthood’s multimillion-dollar civil lawsuit for her undercover investigation of the abortion giant. The implications of this civil case have far-reaching First Amendment consequences involving free speech and undercover journalism.
In the reply brief, Liberty Counsel argues that the federal court’s award of massive damages against the press for undercover newsgathering on an important public issue will harm journalism in America.
“Planned Parenthood fails to rebut…[that] punitive damage against undercover journalists is unprecedented and dangerous…[and] will have a profound chilling effect on the press. These concerns are not ‘alarmist,’ as Planned Parenthood contends.
“…the threat of punitive damages would deter journalists from pursuing undercover investigations into matters of public concern, inhibit exposure of corruption, and encourage closed-doors violations of federal law,” stated Liberty Counsel in the brief.
In the petition for writ of certiorari, Liberty Counsel asks the High Court to consider “whether the First Amendment’s Free Speech Clause protects newsgathering journalists, who operate under an alias to document and expose what they reasonably believe to be unlawful conduct, from being subjected to punitive liability for ‘fraud.’ This case concerns whether, and to what extent, the press may raise the First Amendment as a defense against generally applicable tort laws when undercover journalists gather and publish truthful news of significant public importance. Accordingly, the First Amendment not only protects the publication of news; it also protects the newsgathering process, including undercover investigations, because ‘without some protection for seeking out the news, freedom of the press could be eviscerated.’”
Merritt and David Daleiden, founder of Center for Medical Progress, released videos in 2015 exposing Planned Parenthood’s illegal trade in aborted baby body parts, after a 30-month undercover operation. The videos showed Planned Parenthood executives haggling over prices of aborted baby body parts and discussing how they change abortion procedures to obtain more intact organs.
In October 2022, a three-member panel of the Ninth Circuit ruled against Merritt and Daleiden regarding numerous errors of the trial court, including: (1) the award to Planned Parenthood of millions of dollars in “damages” involving publication of Planned Parenthood’s own words, without any proof that the undercover videos were false or deceptive, in violation of the First Amendment; (2) the use of Racketeer Influenced Corrupt Organizations Act (RICO) to punish constitutionally protected undercover journalism intended to expose unethical and criminal wrongdoing; (3) the award to Planned Parenthood of “damages” involving legally recorded conversations without allowing the jury to hear those conversations, and without requiring Planned Parenthood to prove that the conversations recorded in public places were “confidential;” and (4) the failure of the district court judge to recuse himself from this case, despite the appearance of impropriety resulting from his connections to Planned Parenthood.
In 2019, the case was heard by San Francisco’s U.S. District Court Judge William Orrick III, who is the founder of the Good Samaritan Family Resource Center that houses the Planned Parenthood of Northern California facility in its complex. In 2017, the defense requested that Orrick recuse himself from the case and he refused. Judge Orrick severely restricted the evidence, and at the end, gave instructions to the jury on how they should rule on critical issues. The jury decided in favor of the abortion giant on each count, including RICO, and awarded more than $2 million in damages. The court subsequently awarded Planned Parenthood nearly $14 million in attorney’s fees and costs, for a total judgment of over $16 million.
Liberty Counsel’s Founder and Chairman Mat Staver said, “Sandra Merritt is asking the Supreme Court to review this case because the implications will affect every investigative publication and journalist. Every journalist and person who values free speech and a free press should be concerned with the implications of the ruling from the Ninth Circuit Court of Appeals.”