Pro-Abortion Bias? Lessons From the Daleiden Trial


(photo: Thomas More Society website)

Pro-life undercover investigator David Daleiden and his associates were dealt a serious blow last month when California Judge William Orrick III instructed a jury to hold them liable for trespass and breach of contract for the creation of the investigative videos released in 2015 that reveal Planned Parenthood’s selling of fetal parts.

The jury awarded $800,000 to Planned Parenthood, with a RICO verdict tripling that amount to more than $2.2 million.

Judge Orrick’s handling of the case raises critical questions, especially his refusal to consider the defendants’ First Amendment claims. Their lawyers portrayed them as citizen journalists who employed investigative-style undercover methods to obtain accurate evidence of potential wrongdoing by a major institution receiving public funds.

Legal precedent would seem to support Daleiden and his co-defendants. In Food Lion v. Capital Cities/ABC, for example, the 4th Circuit Court of Appeals threw out a costly fraud verdict against ABC, criticizing it as “an end-run” around free-speech protections for journalists.

But Judge Orrick gave no weight to the purpose or substance of Daleiden’s videos, effectively removing any justification for the secret recording of Planned Parenthood staff or the infiltration of abortion-industry events.  Daleiden’s team was not allowed to provide the jury with a full review of the videos, nor could it highlight their political impact — the congressional hearings, multistate investigations and successful prosecution of companies that trafficked in fetal body parts.

The resulting information vacuum made it easier for Planned Parenthood to accuse him of targeting the organization for no other reason than malicious intent.  

The outcome of this civil trial could have a chilling effect on similar attempts by serious, undercover investigators to expose wrongdoing, especially by politically powerful organizations like Planned Parenthood.

Daleiden’s lawyers are rightly appealing the verdict in this case.

Call Daleiden what you will — undercover investigator, citizen journalist, whistleblower — but Orrick’s refusal to consider his First Amendment claims smacks of a pro-abortion bias. Would Orrick have ruled the way he did were the subject of the case something other than abortion? This case demands a fair, unbiased hearing, not only for the sake of justice for the defendants, but to protect the rights of future investigators like Daleiden. I hope the 9th Circuit Court of Appeals will take up this case and give the defendants’ constitutionally protected right to freedom of speech in the defense of human life the respect it deserves.

Michelangelo, “The Last Judgment,” 1536-1541

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