Why the undercover Planned Parenthood videos aren’t journalism

Sandra Merritt

This past January, a Texas grand jury investigating whether Planned Parenthood had illegally profited from selling baby parts not only cleared the organization of any misconduct but also pointed the finger back at its main accuser, indicting him on a felony charge.

David Daleiden, a 27-year-old anti-abortion advocate from Davis, California, tried to incriminate Planned Parenthood through hidden-camera videos. In his defense he is, in effect, pleading journalism. His Irvine-based Center for Medical Progress “uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press,” he said in a statement released immediately after the indictment.

But a close analysis of his video footage and his actions shows that what he produced doesn’t qualify as journalism on legal or ethical grounds.

Like the Texas grand jury, an examination by the Los Angeles Times and UC Berkeley’s Investigative Reporting Program concluded that Daleiden and Sandra Merritt, his colleague and co-defendant, apparently conspired to violate the law. The reporting stemmed from a unique collaboration between Berkeley’s Graduate School of Journalism and a professional news outlet. Los Angeles Times reporter Paige St. John and students in the Investigative Reporting Program produced a three-part series about the Planned Parenthood videos, First Amendment issues, Daleiden’s legal troubles, and the videos’ effects on the fetal tissue market. I was one of the Berkeley graduate students who took part in this project.

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The Times and IRP found that Daleiden and his associate used fake IDs when posing as representatives of a fetal-tissue company, attempted to ply interviewees with alcohol, and tried to coax out phrases like “fully intact baby.” Daleiden’s video footage and commentary did not reveal any attempt to profiteer, and his editing sensationalized the evidence that he actually had. The only seemingly illegal activity he documented was the alleged fraud that he engaged in as an anti-abortion activist masquerading as an investigative journalist, with the aim of damaging Planned Parenthood.

For more than two years, Daleiden conducted an operation to infiltrate Planned Parenthood meetings, with the goal of exposing the fetal-tissue research market as a criminal enterprise. He now faces charges of tampering with a government record for creating fake California driver’s licenses for Merritt and himself (a felony punishable by up to 20 years in prison) and purchasing human organs (a misdemeanor punishable by up to a year).

His tactics align closely with those of James O’Keefe, another activist who had brushes with the law after he filmed members of ACORN, a collective of community-based organizations that worked on issues such as low-income voter registration. In 2013, O’Keefe settled a $100,000 lawsuit with a former ACORN employee. Like Daleiden, O’Keefe had secretly recorded videos and deceptively edited them. In 2011, before the fetal tissue project, Daleiden worked with the anti-abortion group Live Action, which O’Keefe had previously advised, on another “sting” operation, hiring actors who played sex workers looking to procure abortions for underage prostitutes. Those videos, too, were misleadingly edited.

After Daleiden left Live Action, he sought to enter the world of closed-door fetal tissue conferences with abortion providers. To do so, he founded his nonprofit focused on medical news developments and BioMax Procurement Services, a fake biomedical research company, both of which helped him gain access to private meetings with members of Planned Parenthood and the National Abortion Federation, a professional association of abortion providers that includes Planned Parenthood affiliates.

Along with Merritt, Daleiden posed as an eager buyer of tissue and organs from aborted fetuses, according to court records. He hid spy cameras in places like shirt buttonholes and water bottles, and taped conversations with Planned Parenthood staff members without their consent. In July 2015, he posted the videos on his nonprofit’s website, and conservative media blared headlines like: “SHOCK VIDEO: Planned Parenthood Sells Dead Baby Body Parts” and “Planned Parenthood Clinic Cut Through Baby’s Face To Get His Intact Brain.” In October, he handed over about 500 hours of footage to the US House Committee on Oversight and Government Reform. Daleiden’s revelations have had major consequences, leading to numerous Congressional hearings as well as legal probes of Planned Parenthood in a dozen states.

 

 

If the Texas court considering criminal charges against Daleiden defines him as a journalist, he could claim the First Amendment protections afforded to undercover reporters. His lawyers argue that if the court were to criminalize this type of falsification of documents by journalists with the intent of exposing the truth, most undercover investigative journalists would find themselves vulnerable to prosecution.

In Daleiden’s home state, where he faces three separate civil suits stemming from his fetal-tissue activities, California’s constitution explicitly grants immunity to journalists, protecting them from being forced to reveal their sources in court. But Daleiden isn’t trying to shield another person; rather, he’s attempting to shield himself from legal consequences by defining his own work as journalism.

In 1972, the Supreme Court determined that the First Amendment doesn’t protect reporters from having to testify before a grand jury on criminal matters or on conduct witnessed in the course of reporting. In response, California updated its constitution to protect reporters’ unpublished notes, interviews, photos, and videos. This shielded members of the press from being forced to reveal their sources in court. “Our goal was to shield journalists with more or less a definition of people who were employed by a news organization,” says Suzie Swatt, a retired 30-year staffer in the California legislature who helped draft the shield law in the late 1970s. Swatt adds that the undercover activities of someone like Daleiden, who wasn’t employed by a news organization, “did not fall under the definition that we went for.”

 

Daleiden produced an intentionally emotional provocation that led to an investigation of smoke where there was no fire.

 

Over time, though, the definition of a journalist has evolved. Starting around the turn of the millennium, bloggers hit the scene and prompted a professional identity crisis, forcing the courts to outline new parameters. These lines were drawn in 2006 in another California case in which the tech giant Apple sued Jason O’Grady, a blogger who ran two Apple-related websites that published leaked information about a yet-to-be-released product. O’Grady then moved for a protective order to prevent any such discovery. In deciding whether O’Grady was a journalist—which could protect him from liability and allow him to keep the leaker’s identity confidential—the court first tossed out the term “blogger” as meaningless. It then rejected tests based on who was doing the reporting, whom he worked for, and whether he got paid.

Instead, the court focused on O’Grady’s actions as a reporter of information in the public interest and declined to distinguish “legitimate” from “illegitimate” news. Journalists “gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience,” an appeals court judge wrote. The decision became one of the most comprehensive modern standards for defining a journalist, and O’Grady won, having met all the conditions.

Daleiden certainly gathered information, but it’s not clear that he packaged it for a “mass audience” eager to receive it. Data from Compete.com, which displays historic traffic, reveals that the Center for Medical Progress site received more than 300,000 unique visitors when Daleiden posted the first Planned Parenthood video in July 2015. That’s a big number for a small outlet, and definitely sizable enough to qualify as a journalist publishing to a mass audience. But before July 2015, when Daleiden was making his videos, Compete.com shows the website had zero unique users. None. No audience. This is important because it suggests the Center for Medical Progress wasn’t publishing for an audience during its early existence, even though Daleiden’s videos subsequently drew one.

Daleiden also altered the stated purpose of his organization after releasing the videos. When he first set it up, the Center for Medical Progress defined itself in its “About” section as a nonprofit organization dedicated to “informing and educating both the lay public and the scientific community about advances in regenerative medicine, cell-based therapies, and related disciplines.” The site featured neutrally toned articles on stem-cell research and medical techniques, none written by Daleiden, along with the image of a microscope.

 

After the videos were released, the mission statement changed, defining the organization as a group of citizen journalists dedicated to monitoring and reporting on medical ethics and advances.” Press releases, headlines, and the term “investigative journalism” suddenly appeared on the homepage. More recently, the video project has been cut and packaged into a Web documentary series called Human Capital. Although the site now resembles online journalism, it is less clear that during the time he was gathering information, Daleiden would have qualified as a journalist under the definition that grew out of the O’Grady case.

Indeed, the Center for Medical Progress wasn’t designed to inform readers of “medical advances.” Rather, it was created both to fool the gatekeepers into giving Daleiden access to National Abortion Federation meetings and to present a preconceived position: that Planned Parenthood was illegally selling baby parts. But if Daleiden continues packaging information on his site with his newly established audience, it’s possible a judge could find that he meets the legal definition of a journalist.

More problematic for Daleiden is that no privileges protect journalists who break the law to get the news. Before entering the private meetings he filmed, he signed nondisclosure agreements with the National Abortion Federation that prohibited audio and image recording. Further, 12 states, including California, require the consent of all parties when recording audio or phone conversations. In making the secret recordings, Daleiden has been accused of violating both the nondisclosure agreement and the California consent law.

While signing a nondisclosure agreement usually nullifies a person’s First Amendment rights, Daleiden maintains that because he was seeking to prevent “murder,” he had the right to break the agreements. As his lawyers argued last month: “Contractual obligations suppressing speech on matters of enormous public interest are unenforceable as a matter of public policy.”

But Gary Bostwick, a Los Angeles-based media attorney, says Daleiden’s legal argument will probably fail, citing a 1991 Supreme Court decision that journalists are not exempt from “generally applicable” laws.

Daleiden’s ethics, and particularly his choices in editing the videos, raise other questions. An undercover investigation, like any inquiry that hopes to qualify as journalism, has an obligation to present information that doesn’t necessarily fit into a preconceived thesis. In the videos that Daleiden published on his website, he failed to show the audience key sequences, such as the time he attempted unsuccessfully to get one of his targets drunk in an effort to elicit damaging or inappropriate statements. He touted one video as the “harrowing story of harvesting an intact brain from a late-term male fetus whose heart was still beating after the abortion”—even though outtakes show that he edited out statements indicating the fetus was dead before the brain tissue was removed.*

 

Undercover work should be a last resort, says Kelly McBride, vice president of academic programs at the Poynter Institute. McBride, an expert in media ethics, says there are two triggers that justify undercover work: when a reporter has exhausted all other means to hold very powerful people accountable—interviewing, document sourcing, digital news-gathering, data-crunching—and when it’s in pursuit of the truth.

Daleiden, she says, did not go undercover as a last resort. “He does a couple of things that are really unnecessary for gathering the information,” she says. “He creates a false persona. He claims to be after the truth, but he starts out with a deception. Then, in the editing of the video, he distorts the truth further.”

Several cases do exist in which reputable journalistic outlets have used deception to get stories. In 1992, in an effort to expose unsanitary conditions at the Food Lion grocery chain, two ABC producers provided false information when applying for jobs, trespassed, and made secret recordings. They were successfully sued for $5.5 million, but that amount was later reduced to $2 in a ruling that nonetheless affirmed that journalists were not above the law. In 1998, the Cincinnati Enquirer published an exposé alleging rampant criminality in Chiquita Brands International’s Central American banana operation. Because the story was based on stolen voicemails from corporate executives, the Enquirer had to print a retraction and pay the company a multimillion-dollar settlement.

Good journalists, says Rick Altabef, former First Amendment counsel to CBS for 30 years and now an attorney for Univision, report against their biases. Their aim is to uncover the truth, not to distort it. Not following up with at least two sides of a story, he adds, constitutes a failure on the part of the journalist or media outlet and blurs the line between journalism and propaganda.

If Daleiden had really wanted to make a fair piece of journalism, he should have included other people in his videos who did not agree with his conclusions in order to create balance, Altabef says. Moreover, the fact that footage was edited in a deceptive way points to a deliberate distortion of the truth, which misses the mark of true journalism. Daleiden, Altabef says, “seems more like a private detective” than an investigative reporter, “like someone who has been put on a particular target to see what he can get on them.”

Since the release of the videos, investigators in 12 states have found no illegal activity on Planned Parenthood’s part. But Planned Parenthood, the National Abortion Federation, and StemExpress (a fetal-tissue buyer in Northern California) have sued Daleiden. On February 5, US District Judge William Orrick in San Francisco issued an injunction to keep the approximately 500 hours of still-unreleased footage under seal. Orrick stated in his decision that the videos Daleiden made public “have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions … of criminal misconduct. Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigatory journalism techniques.”

A real “citizen journalist,” as Daleiden calls himself, could have created a truthful story using information he found in his investigation: the size of the fetal-tissue market, the amount of money Planned Parenthood charged private medical-research companies for samples, the types of activities that are deemed illegal and why, and thorny ethical issues involving subjects like embryonic stem cell research and patient care in clinics. He might have mentioned that the fetal-tissue market has been around for nearly a century and has led to major medical advancements. And he could have done all this while also representing the voices that decry the very existence of the tissue trade. But Daleiden did not pursue that story, just as he didn’t use undercover cameras as a last resort. The story he went after didn’t even require those James Bond techniques. Instead, he produced an intentionally emotional provocation that led to an investigation of smoke where there was no fire.

Yet his deceptions about Planned Parenthood have so far proved remarkably durable. Public figures like Carly Fiorina, the former presidential candidate and Hewlett Packard CEO, continued to repeat them as though they were true. Senator Ted Cruz, who hired a former board member of the Center for Medical Progress as a campaign adviser, called Daleiden’s work an “incredible public service.” Then-candidate Cruz vowed that if he became president and Daleiden faced prison time, Cruz would pardon him.

While failing to qualify as journalism, Daleiden’s operation has been successful in its advocacy. Since the release of his videos, Planned Parenthood has stopped accepting any reimbursements for fetal-tissue donations, impeding researchers trying to develop vaccines and find cures for diseases like Parkinson’s. Ten states have enacted laws to defund the organization, making it harder for some women to obtain not just abortions but also birth control, breast exams, and other gynecological care. Most ominous, the National Abortion Federation reports a surge in death threats, vandalism, and violence that it attributes to Daleiden’s actions.

*An earlier version of this story contained an incomplete quote from this posting on the Center for Medical Progress website.

 

This story was produced as part of a project by UC Berkeley’s Investigative Reporting Program in conjunction with the Los Angeles Times.

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Ted Andersen is a recent graduate of UC Berkeley’s journalism school and a 2015 Overseas Press Club Foundation fellow. His articles have been published by the Associated Press, Time, and World Policy Journal.