In 2013, Planned Parenthood learned that it had been surreptitiously recorded by an activist group calling itself the Center for Medical Progress. The group went undercover to record and publish videos in order to accuse Planned Parenthood of trafficking in fetal tissue for profit in violation of federal law. Planned Parenthood believes the videos, as edited, presented a false depiction of events. So it sued for defamation, right?
Wrong. Planned Parenthood brought multiple claims against the Center for Medical Progress and its founder, David Daleiden, but none for defamation.
Presumably, Planned Parenthood did not bring a defamation claim because, as a public figure, it is required to prove that the Center for Medical Progress knew its statements were false or acted with reckless disregard for the truth — in other words, that it believed its publications were likely to be false and chose to publish them anyway. This requires proof of what was in the minds of the group’s members, evidence that would have been hard to come by, especially if the group believed its publications were true, even if it was mistaken.
So what did Planned Parenthood do? In the case of Planned Parenthood Federation of America v. Center for Medical Progress, it creatively pleaded just about every claim but defamation — conspiracy, breach of contract, trespass, fraud — to evade the First Amendment’s requirement that it show knowing falsity or reckless disregard for the truth.
In 2015, Planned Parenthood sued the Center for Medical Progress for using undercover investigative techniques to surreptitiously record Planned Parenthood events and publishing those videos as evidence of alleged trafficking in fetal tissue for profit. A California jury found in favor of Planned Parenthood and awarded the organization nearly $2.5 million in compensatory damages.
After a six-week trial, a jury awarded Planned Parenthood nearly $2.5 million in damages. The U.S. Court of Appeals for the Ninth Circuit upheld the award, writing that “[i]nvoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society.”
While that anodyne statement may be true, it fails to address that Planned Parenthood’s damages resulted from the Center for Medical Progress’s publication of alleged falsehoods. And the First Amendment does have something to say about that. Namely, it requires public figures to prove the defendants’ knowing falsity or reckless disregard for the truth. The Ninth Circuit did not sufficiently account for the chilling effect that an award of non-defamation damages, arising from publication, is likely to have on journalists, whistleblowers, and undercover investigators who publish truthful information in the public interest.
That’s why FIRE joined other free speech, whistleblower protection, and animal advocacy groups in filing an amicus “friend-of-the-court” brief with the U.S. Supreme Court, urging it to take up this case in light of the significant First Amendment issues at stake.
FIRE takes no position on whether Planned Parenthood could have, or should have, successfully sued the Center for Medical Progress for defamation. Nor does FIRE take a position regarding the truth or falsity of the Center for Medical Progress’s published videos. As we argue in our brief, the Ninth Circuit made two critical mistakes in affirming the jury’s decision that threaten accurate investigative reporting in the public interest.
First, the Ninth Circuit ignored the Supreme Court’s ruling in United States v. Alvarez, that there is no “general exception to the First Amendment for false statements.” In so doing, it gave short shrift to this country’s long history and tradition of undercover newsgathering.
If these intrepid reporters could have been sued by the targets of their investigations, they may have chosen not to report on matters of the highest public concern.
Undercover newsgathering has led to some of the most consequential reporting in American history, oftentimes spurring new policies and legislation. The most famous example is likely Upton Sinclair’s 1906 novel, “The Jungle,” which exposed the meatpacking industry’s harsh, inhumane, and unsanitary working conditions. Sinclair spent weeks undercover in Chicago’s meatpacking plants to conduct research for the novel, and his reporting led to the passage of the Meat Inspection Act and the Pure Food and Drug Act.
Other examples abound, from the New York Tribune’s reporting on a Savannah, Georgia, slave auction in 1859 to Nellie Bly’s undercover reporting from inside New York’s Women’s Lunatic Asylum to the Washington Post’s 2008 exposé of conditions at Walter Reed National Military Medical Center. If these intrepid reporters could have been sued by the targets of their investigations, they may have chosen not to report on matters of the highest public concern.
The Ninth Circuit’s second mistake was in upholding the jury’s award of “personal security damages” for heightened personal security for certain staff who were the subjects of the released videos and its award of “access-security improvement damages” for improvements to conference and event security.
On the facts of this case, these are simply creatively pleaded reputational damages arising from publication of the videos. If allowed to stand, they undermine the First Amendment’s requirement that public-figure defamation plaintiffs prove knowing falsity or reckless disregard for the truth. Under the Ninth Circuit’s theory, for example, the meatpacking companies exposed in “The Jungle” could have sued Upton Sinclair for the increased costs of security at their plants or for protecting their executives from protestors. Such a result risks chilling investigative journalism and seriously threatens First Amendment protections for the press more broadly.
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 throughout American history, then First Amendment limits on recoverable damages for non-defamation civil claims must be vigorously enforced.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...