David Daleiden, abortion fetal tissue video producer, faces lawsuit over privacy rights

Were this year’s undercover videos on abortion clinics and fetal tissue harvesting a public service by an investigative journalism team or an invasion of an abortion rights group’s privacy that now exposes its members and allies to danger?

A federal judge in California will hear arguments Friday on these and other issues in a lawsuit brought by the National Abortion Federation against undercover videographer David Daleiden, the Center for Medical Progress, Biomax Procurement Services and Troy Newman, president of Operation Rescue.

The abortion rights group is asking U.S. District Judge William H. Orrick to issue a preliminary injunction on secretly made recordings at its meetings in 2014 and 2015.

Mr. Daleiden and others with the Center for Medical Progress had signed nondisclosure agreements saying they wouldn’t record the National Abortion Federation’s meeting activities or misrepresent themselves to conference attendees, wrote Derek F. Foran and other lawyers with Morrison and Foerster in San Francisco.

Instead, they “fraudulently” took video and audio recordings that could reveal personal identities and information about the group’s members and attendees, despite all the precautions the federation takes to ensure privacy and security at their events, the attorneys wrote.

The Center for Medical Progress’ “deceptive video smear campaign” has led to harassment, reputational injury, and death threats against abortion doctors and others, and federation members are now at risk,” the attorneys wrote.

Mr. Daleiden countered through his attorneys that the 11 undercover videos released to the public over the summer were a public service, not an attempt to defraud anyone.

The center engaged in undercover investigative journalism — complete with props, costumes, hidden cameras and new identities — to “document and expose” illegal and unethical practices among abortion providers regarding practices involving fetal body parts for research and other purposes, Life Legal Defense Foundation attorney Catherine W. Short and others said in a brief.

The swift response by Congress and state officials to investigate possible violations of law — such as the sale of fetal tissue, the altering of abortion procedures to obtain fetal tissue, the commission of partial-birth abortions, the killing of born-alive babies after an abortion and the improper acquisition of maternal consent — show the importance of these issues to the public, Ms. Short and her colleagues wrote.

No nondisclosure agreement can be valid in the face of criminal activity, they argued.

Moreover, the center’s representatives are protected under the First Amendment’s guarantees of freedom of speech and the press.

“We think [Mr. Daleiden] is a citizen journalist, and I think ultimately that claim will be vindicated,” said Thomas Brejcha, a lawyer with Thomas More Society in Chicago who is part of the Center for Medical Progress’ legal team.

Mr. Foran scoffed at the center’s journalistic claims.

“Journalists don’t defraud people. They don’t dress up in costumes. They don’t commit perjury against state and federal governments by misrepresenting themselves as being apolitical organizations that are not-for-profit,” Mr. Foran said.

Journalists also “don’t tape themselves up” with recording devices or “put people in harm’s way,” he said, referring to the National Abortion Federation’s argument that the Center for Medical Progress put abortion providers at risk for violence by surreptitiously recording recognizable speakers and attendees at the conferences.

“These folks aren’t journalists. They are radicals who are dressing themselves up as journalists in order to dupe people and the public,” Mr. Foran said.

The abortion federation is further asking Judge Orrick to sanction Mr. Daleiden and the center for disobeying one of his orders on what materials to release to Congress and force them to remove National Abortion Federation materials from its Facebook and Twitter feeds.

Mr. Brejcha said “the genie is out of the bottle” because most everything has been published, except what was covered by a temporary restraining order that Judge Orrick granted the abortion federation in late July.