On October 26, in the aftermath of the Ninth Circuit Court of Appeals decision striking down Oregon’s undercover recording law as unconstitutional, Thomas More Society attorneys along with Liberty Counsel attorneys filed a motion to dismiss the criminal charges against undercover pro-life journalists David Daleiden and Sandra Merritt.
Daleiden, the founder of the Center for Medical Progress, and Merritt went undercover to expose potentially illegal fetal body part trafficking that Planned Parenthood and other groups are alleged to have participated in. That investigation lasted 30 months and the videos were released in 2015. Both faced prosecution by California attorneys general Kamala Harris and Xavier Becerra under the state’s undercover recording law.
Daleiden is currently facing nine felony counts while Merritt is facing eight felony charges. Their attorneys argue that the California law they were charged under is similar to that of Oregon and therefore also violates the First Amendment and should be ruled unconstitutional.
The Ninth Circuit ruled in Project Veritas v. Schmidt, “The act of recording is itself an inherently expressive activity that merits First Amendment protection. Therefore, prohibiting a speaker’s creation of unannounced recordings in public places to protect the privacy of people engaged in conversation in those places is the equivalent of prohibiting protesters’ or buskers’ speech in public places for the same purpose.”
Liberty Counsel Founder and Chairman Mat Staver spoke on that ruling, saying:
The recent decision from the Ninth Circuit declaring that Oregon’s recording law is unconstitutional justifies reversing the previous unconstitutional judgment against Sandra Merritt regarding California’s recording law. The Superior Court of San Francisco County should dismiss the criminal charges against Sandra as a result.
According to Thomas More Society:
The Motion to Dismiss details how Daleiden is being prosecuted for recording ‘candid responses as part of indisputably newsworthy conversations in places open to the public,’ something he did for the purpose of obtaining evidence of violent felonies. Thomas More Society attorneys argue that California law prohibiting undercover recordings in these circumstances is closely analogous to Oregon’s statute, and therefore also violates the First Amendment.
Peter Breen, Thomas More Society Executive Vice President and Head of Litigation, explained that the investigation led by Daleiden “generated videos and evidence that spurred Congressional hearings, criminal referrals, policy and law changes, along with nationwide efforts to defund Planned Parenthood.”
In addition to the argument that the California law should be deemed unconstitutional, the Thomas More Society is arguing that California’s undercover recording law additionally violates the First Amendment because it fails to include a requirement that the undercover journalist have the intention of recording a “confidential” conversation.
“For an undercover journalist in California, the difference between winning a Pulitzer Prize, or suffering a felony conviction, may hinge on whether a court later determines that a particular recorded conversation was ‘confidential’ or not,” explained Breen. “However, the United States Supreme Court has held that such ‘objective’ tests in criminal speech cases violate the First Amendment.”
The case against Daleiden is “blatantly biased,” said Breen, and is the first such case brought against an undercover journalist by a California Attorney General.
