The U.S. Supreme Court on Monday dealt another blow to the anti-choice activists behind the discredited smear campaign against Planned Parenthood when it declined to hear an appeal seeking permission to release videos under a gag order in the National Abortion Federation’s (NAF) lawsuit against the activists.
The activists include David Daleiden, who founded the anti-choice front group known as the Center for Medical Progress (CMP), and Troy Newman, one of CMP’s founding board members. The petition for a writ of certiorari, which the Supreme Court rejected, was filed on behalf of Newman—founder and president of radical anti-choice group, Operation Rescue—by the American Center for Law and Justice and President Trump’s personal attorney, Jay Sekulow.
It was the latest loss for the anti-choice activists in NAF’s lawsuit against Daleiden, CMP, Troy Newman, and others related to the videos that Daleiden and his associates surreptitiously recorded at one of NAF’s private events and later edited to insinuate that Planned Parenthood has profited from the sale of fetal tissue.
The videos have been blocked from release for nearly two and a half years, and thus far, efforts to release the videos have been stymied in court—first by the district court, then by the Ninth Circuit Court of Appeals, and now by the U.S. Supreme Court.
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Daleiden, who founded CMP, began releasing the videos in July 2015 as part of something he called the “Human Capital Project,” which coordinated with Republican lawmakers to attack funding for Planned Parenthood. The purpose of the project was to demonstrate that Planned Parenthood employees were unlawfully profiting from fetal tissue donation and violating the “partial-birth abortion” ban. Daleiden insisted that the videos contained proof of Planned Parenthood’s misdeeds.
Almost immediately after the videos’ release, NAF filed a federal lawsuit against Daleiden, CMP, and his associates in federal court in San Francisco alleging civil conspiracy, racketeering, fraud, and breach of contract, among other civil and criminal allegations, stemming from the release of the deceptively edited video footage.
NAF sought a temporary restraining order blocking further release of the videos in order to protect its members from anti-choice activists’ harassment and violent threats.
Judge Orrick issued the temporary restraining order in July 2015, and in February 2016 converted that order into a preliminary injunction in a scathing opinion in which he said the defendants had “engaged in repeated instances of fraud” and that the products of Daleiden’s Human Capital Project “thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions.”
The injunction blocks CMP and Daleiden from publishing or disclosing “any video, audio, photographic, or other recordings taken, or any confidential information learned at any NAF annual meetings.”
For more than two years, CMP and Daleiden have battled NAF in court for the right to release these videos, claiming their infiltration scheme was simply citizen journalism—although many journalists have concluded otherwise—and that the injunction blocking them from releasing the videos is an infringement on their First Amendment rights.
NAF countered that Daleiden and CMP waived their First Amendment rights when they signed nondisclosure agreements, promising to maintain the confidentiality of information they gleaned from NAF’s meetings. Due to the threats of violence—including from people like Newman, who has argued that the killing of abortion providers is justifiable homicide—NAF has had to increase its security. One element of their security system requires every event attendee to sign confidentiality agreements.
“That defendants intended to infiltrate the NAF Annual Meetings in order to uncover evidence of alleged criminal wrong doing … does not give defendants an automatic license to disregard the confidentiality provisions.”
In his appeal to the Supreme Court—which was joined by more than 20 state attorneys general—Newman argued that the injunction blocks people from voluntarily sharing information concerning possible criminal, illegal, or unethical acts with federal, state, and local government investigators and the public.
But Republican-led investigations on the state and federal level found no wrongdoing on the part of Planned Parenthood. Judge Orrick also found no such wrongdoing: “The products of [the Human Capital Project]—achieved in large part from the infiltration—thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal conduct.”
The Supreme Court’s refusal to hear the case leaves the injunction in place.