Bellwether

Planned Parenthood video trial - is free speech or privacy under fire?

John Moody

David Daleiden calls himself a citizen journalist. His method for getting information is to lie about who he is, then record what people tell him without their knowledge. Because he got officials from Planned Parenthood to discuss selling the body parts of aborted fetuses, he is being charged with fifteen criminal felony counts. 

On Monday, he and a co-defendant will appear in San Francisco Superior Court. Spoiler alert: there are no heroes here.

Deleiden is accused of violating California’s two-party privacy laws, which require that if a confidential conversation is recorded, both parties must first give their consent. Conversations that take place in public are not protected, nor are conversations that deal with violent crimes. 

Deleiden’s undercover videos – 2,300 in all -- were recorded in restaurants and conferences, which his attorneys say are public venues. They also believe that abortions performed for the purpose of selling body parts for profit can involve violent crime. Deleiden contends that his right to free speech is being squelched because he has a pro-life point of view.

The videos, no matter what you think about abortion, are revolting. A Planned Parenthood official speaks matter-of-factly about the going rate for body parts harvested from fetuses. Deleiden and his codefendant, Sandra Merritt, lead them on, while the video rolls.

The charges against Deleiden were announced last March by California Attorney General Xavier Becerra in a press release that identified his accusers as Doe #1 through 14. The 15th felony charge is for conspiracy. In a related civil case, a federal judge issued an injunction forbidding Deleiden from releasing other surreptitiously recorded videos. 

“As you can imagine, having an injunction filed by a federal judge has impinged our ability to defend our client,” says attorney Brentford Ferreira, a former Los Angeles county deputy district attorney. 

Deleiden’s case was initially opened by Becerra’s predecessor, Kamala Harris, who last November was elected to the U.S. Senate. Ferreira claims that Planned Parenthood lobbied Harris to bring the charges to punish Deleiden. Says co-counsel Steve Cooley, “This is a politically motivated prosecution.”

Neither Becerra or Harris would comment.

Deleiden doesn’t think he’s done anything wrong as a journalist. “"I’m a skilled citizen journalist who orchestrated an in-depth undercover study of the country’s biggest abortion business," he told me. “I’m not the only person doing stuff like this. There’s a new generation of citizen journalists who use these tactics. But because we went after the sacred cows of the California political establishment, they’re bringing the hammer down on me.”

His attorneys point out that undercover reporting has a long history, dating back to Upton Sinclair’s muckraking 1906 novel The Jungle, which revealed shocking conditions in the meat-packing industry.

“It’s not a crime to lie or misrepresent yourself,” Deleiden says. “If we accept that it is, we would have no undercover police operations, no undercover journalism. It’s a non-literal use of information to capture a bigger truth.”

Maybe so. But if this case is a yardstick, is it any wonder that both journalists and politicians are held in such low regard?

John Moody is Executive Vice President, Executive Editor for Fox News. A former Rome bureau chief for Time magazine, he is the author of four books including "Pope John Paul II : Biography."