Planned Parenthood sued the Center for Medical Progress, David Daleiden, others for releasing videos of aborted baby body parts sales, but did not allege defamation
(CMP) Over the weekend, the Center for Medical Progress (CMP), David Daleiden, and CMP’s undercover investigators filed their opening briefs on appeal at the federal Ninth Circuit, seeking reversal of Planned Parenthood’s $16 million retaliation lawsuit over CMP’s release of undercover videos, which show Planned Parenthood leadership callously negotiating the sale of aborted fetus body parts.
After the release of the videos in 2015, Planned Parenthood faced Congressional investigations and criminal and regulatory referrals to state, federal, and local officials over its participation in illegal transfers of human fetal tissue for valuable consideration (42 U.S.C. 289g-2). Business partners in Planned Parenthood’s fetal tissue program in southern California admitted illegally selling fetal tissue from Planned Parenthood and were shut down in a $7.8 million settlement with the Orange County District Attorney, who credited CMP’s undercover reporting with prompting the successful prosecution.
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But in January 2016, Planned Parenthood filed a lawsuit in San Francisco federal court in retaliation for the undercover videos, suing for fraud, trespass, unlawful recording, and breach of contract and seeking damages of over $20 million—but conspicuously refused to bring a claim for defamation.
The judge, William Orrick III, initially slashed that number down to barely $400,000 in consultant fees, but then allowed a San Francisco jury to triple it under the federal RICO statute and add nearly $1 million in punitive damages. Then Judge Orrick himself added $13 million in attorneys fees.
Over 4 different opening briefs filed at the Ninth Circuit on Friday, CMP, Daleiden, the undercover investigators, and other co-defendants argued and alerted the federal appeals court:
- Judge Orrick allowed Planned Parenthood to make an end run around the First Amendment, where Planned Parenthood sued for research and management costs stemming from the release of the undercover videos, but did not prove in court the videos were false or defamatory—in fact, Planned Parenthood admitted in court the videos were authentic. Judge Orrick’s $16 million fine for the videos and injunction against further investigation awarded to Planned Parenthood, without any defamation claim, are a threat to all undercover reporting.
- In allowing Planned Parenthood’s case to go forward without proving the video reporting was false, Judge Orrick denied CMP’s First Amendment rights and protections for speech, blocked significant discovery on Planned Parenthood’s fetal research practices, and forbade any Defense based [] on the truth of the video reporting.
- Judge Orrick excluded the expert testimony of Dr. Forrest O. Smith, the longest continuously practicing abortion provider in the United States, who testified the videos are evidence infants are being delivered alive and killed through organ harvesting in Planned Parenthood’s fetal research programs.
- Judge Orrick allowed Planned Parenthood to sue CMP for “fraud” and “breach of contract” for operating a “fake” fetal tissue company, when the “real” fetal tissue companies Planned Parenthood was contracting with like DaVinci Biosciences were admittedly criminal.
- Planned Parenthood’s fraud, trespass, and RICO claims presented no evidence to distinguish CMP investigators’ undercover networking with the abortion industry from pure speech protected by the First Amendment, and 9th Circuit and Supreme Court precedent. The “fake IDs” shown by some investigators were creative props never used for government ID purposes and cannot be the basis for a tripled RICO fine.
- Planned Parenthood’s “breach of contract” claims are based on standardized tradeshow agreements for exhibit booth space, which concluded with the end of each tradeshow and where undercover investigators ran exhibit booths without incident or injury.
- The undercover video recordings at issue in the case were all made of professional conversations in public areas where third parties easily overheard—yet Judge Orrick would not allow the Defense to play the full videos of the conversations to the jury.
- David Daleiden led and managed the entire undercover project and video release, with investigative contractors playing limited roles and former CMP board directors minimally involved. But Planned Parenthood picked and chose without evidence who to sue for money based on Planned Parenthood’s own conspiracy theories.
- One undercover investigator did not identify as pro-life and used his own name and ID to attend Planned Parenthood tradeshows—yet Orrick still allowed Planned Parenthood to sue him for “fraud” and “trespass” because he assisted a pro-life publication. Judge Orrick then punished the other Defendants further for actually subscribing to pro-life advocacy. The real “crime” in Orrick’s courtroom was pro-life speech, and guilt by association with it.
- Judge Orrick helped open and operate a Planned Parenthood abortion referral clinic in San Francisco that brought in $100,000/year to a non-profit center that Orrick directed. Orrick’s Planned Parenthood clinic referred pregnant patients to the same Planned Parenthood fetal tissue program with StemExpress that CMP’s reporting exposed. During the lawsuits in his courtroom, Judge Orrick’s wife’s Facebook account used a photo of him to “Like” posts calling CMP and Daleiden’s reporting “domestic terrorism” and calling for Daleiden’s criminal prosecution. CMP and Daleiden sought to have Judge Orrick disqualified from the case, but Orrick refused to step down, refused to disclose his relationship with Planned Parenthood, and attempted to influence another judge to keep him on the case.
Daleiden notes, “Planned Parenthood got caught selling aborted baby body parts in the undercover videos, and their fetal trafficking programs have started to be held accountable. Yet because of a biased federal judge, who previously helped run a Planned Parenthood clinic in the fetal trafficking network, Planned Parenthood has been allowed to sue me and CMP for successfully reporting the facts while blocking us from defending ourselves.”
Daleiden continues, “The animus against free speech about abortion and fetal trafficking was palapable in Judge Orrick’s courtroom, where no evidence against Planned Parenthood would be admitted and the real ‘crime’ is being pro-life. This judgment does not reflect equality or fairness and puts freedom of the press and the rule of law at risk for all Americans. This judgment must be reversed.”
Charles LiMandri of LiMandri & Jonna, special counsel to the Thomas More Society and lead trial counsel in the case, states, “Following the mockery of a trial in this case, I wrote an article in November 2019 to explain why the defense had such a strong record for appeal. The appellate briefs filed for David Daleiden and the other defendants on Friday, February 26, 2021, reflect the full strength of that appellate record. The issues in this case are vitally important for our constitutional freedoms of speech and the press, as well as the future of undercover journalism in our nation. David Daleiden and his co-defendants deserve to be rewarded for their courageous efforts to expose the atrocities of Planned Parenthood's illegal trafficking in aborted baby body parts. Instead, a biased trial court hamstrung their defense with extremely one-sided rulings resulting in a monstrously unjust verdict in favor of Planned Parenthood. We are looking forward to finally obtaining justice for our heroic clients through the appellate process. Ultimately, it is Planned Parenthood that must answer for its heinous crimes against humanity.”
Harmeet Dhillon of the Dhillon Law Group, representing Daleiden and CMP, states, “This appeal implicates fundamental First Amendment values and further important legal issues of broad relevance beyond this case. This unprecedented, draconian treatment of undercover journalists amounts to selective censorship and punishment of pro-life views. Planned Parenthood refused to try the veracity of the undercover videos before the jury, yet this favored litigant was allowed to reap a windfall in defamation-style damages while our clients were blocked from mounting a full defense. The future of investigative journalism in the Ninth Circuit may well turn on the outcome of this case.”
Editor's note: This release was published by the Center for Medical Progress and is reprinted with permission.
To learn more about CMP’s undercover reporting, visit: centerformedicalprogress.org
