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Posted on April 2, 2017
By Noah Rothman/ Commentary Magazine
Will journalists speak out for journalism if it targets Planned Parenthood?
Anyone who doubted that the abortion provider Planned Parenthood is a sacred cow for the left had those doubts dispelled on Tuesday night courtesy of California’s Department of Justice. The state pursued and secured criminal charges against two filmmakers who allegedly violated the law when they made a variety of secret recordings of Planned Parenthood officials. While defensible, the facts of this case and those of similar cases California chose not to prosecute stain these charges with the appearance of political persecution.
California’s attorney general, former Democratic Congressman and beneficiary of campaign contributions from Planned Parenthood Xavier Becerra, declared in a press release that the videos filmed for the activist organization Center for Medical Progress (CMP) represent the “criminal recording of confidential conversations.”
The charges against CMP’s David Daleiden and Sandra Merritt allege that the two used falsified documents to conceal their identities and that the tapes they made violate the state’s “two-party consent” recording laws.
“California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation,” read the Digital Media Law Project’s summary of the statute in California’s criminal code proscribing all but “two-party consent” recordings. “A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well.”
In short, unless you secure clear consent from a recorded subject to make remarks on tape, you can be prosecuted for that infraction. Planned Parenthood’s President Cecile Richards confessed under oath before Congress that these tapes were recorded in “a non-confidential area,” but that is no obstacle to prosecution under California law.
The broad construction of the state’s recording consent laws is such that its justice department is afforded wide latitude when it comes to determining what does and does not constitute a violation. California is within its rights to prosecute CMP officials for this alleged infraction of the state’s criminal code, but the failure to apply discretion in the matter is quite clearly a political act.
“The right to privacy is a cornerstone of California’s Constitution, and a right that is foundational in a free democratic society,” Becerra asserted. California seems not to have much of a problem with undercover recordings when they are made in service to causes near and dear to progressive hearts.
In 2015, the group Mercy for Animals, which routinely produces undercover recordings of food production facilities, released a video featuring the cruel treatment of chickens at the Fresno-based Foster Farms poultry slaughterhouse. The slickly-produced video was released to the public and was even presented by “The Price Is Right” host Bob Barker. The tapes led to an investigation by the local police and eventually resulted in misdemeanor animal cruelty charges against one the facility’s workers.
No charges were filed against Mercy for Animals. There’s no doubt that both the organization and its political allies on the left would have dubbed it persecution if they were. A 2013 New York Times report on an increase in state-level legal restrictions on undercover photography at livestock farms to combat “ecological terrorism” featured animal activist groups sounding alarms over the violation of their civil liberties. Among them was Mercy for Animals’ general counsel Vandhana Bala. “It has definitely had a chilling effect on our ability to conduct investigations,” he said of laws passed in states like Utah, Missouri, and Iowa that makes it harder to produce undercover exposés.
Further, California would have likely been within their rights to put former Clippers owner Donald Sterling’s mistress, V. Stiviano, before a grand jury for illicitly recording the businessman and releasing those tapes to the press in 2014. In those well-publicized tapes, Sterling made a series of abhorrently racist comments about African-Americans including Earvin “Magic” Johnson, a figure so beloved in the Golden State that he appears on their travel and tourism advertisements. The tapes resulted in Sterling’s permanent banishment from the NBA. Stiviano’s attorney told the Los Angeles Times that those recordings did not violate California’s “two-party consent” statute because he was recorded making racist remarks “by mutual agreement.” That was apparently good enough for California’s Department of Justice. And after all, the true villain in this matter had already been identified.
When it comes to these investigations, there is precedent for a justice department official to weigh the good these tapes have done against the alleged the violations of law that were made in their pursuit. A Texas grand jury empaneled to determine whether Planned Parenthood violated the law in early 2016 instead cleared the organization and returned recommendations for indicting two of the filmmakers. Daleiden and Merritt were charged with tampering with governmental records and the misdemeanor attempt to solicit the sale of human organs. The Harris County District Attorney’s Office immediately dropped the charges.
These tapes did enormous political damage to Planned Parenthood. They featured PP executives willfully violating the spirit if not the letter of human organ trade laws by touting the profit that they make through the legal sale of parts of aborted fetuses. They showed a variety of PP technicians flippantly and callously dismembering fully formed limbs removed at later stages of development from the womb. They showed PP medical staff describing aborted fetuses as “a baby,” which undermines the arguments of abortion advocates who prefer to use euphemisms like “products of conception” and strenuously object to “anthropomorphizing” a human embryo until the moment of birth. These tapes forced PP’s Democratic allies, including figures as lofty as Hillary Clinton, to admit PP’s practices were “disturbing,” imperiling the organization’s taxpayer funding.
The counter attack against the Center for Medical Progress by the left has largely focused on its efforts to perform journalism. House Democratic Minority Leader Nancy Pelosi called for an investigation into the tapes when it was discovered that they had spliced illustrative “b-roll” of an aborted fetus into the footage of taped conversations about that very procedure. Now, the state of California is criminalizing the common practice of undercover investigations; all to the sound of approving silence from the nation’s journalistic establishment.
In the Trump era, the Fourth Estate has become especially protective of its profession. Under strictly verbal assault from the most powerful man on Earth, journalists perceive themselves and their noble, constitutionally protected profession as under assault. Here before them is a real, genuine example of the heavy hand of government operating in defense of entrenched interests to criminalize standard journalistic practice. Here is an opportunity for reporters to show real moral courage. So far, too few have heard the call.