United States Project

How the fight over undercover videos is pitting Planned Parenthood against the mainstream media

August 5, 2016

For the past year, Planned Parenthood and its supporters have been locked in a bitter legal and political battle with the anti-abortion activists and self-proclaimed citizen journalists who produced and released hidden-camera recordings of meetings with the group’s officials.

As part of that fight, the organization’s California affiliate is pushing to change state law, creating new criminal penalties for the distribution of undercover videos. But that effort has brought it into a second dispute–more amicable, but still real–with mainstream media groups in the state. And now the legislative struggle is coming to a head, with lawmakers back from their July recess and facing an Aug. 31 deadline to pass bills.

At issue is Assembly Bill 1671, introduced in January by Los Angeles Democrat Jimmy Gomez, at the behest of Planned Parenthood Affiliates of California. The bill, which passed the Assembly in May, is designed to punish the distribution of recordings of healthcare professionals made in violation of the state’s two-party consent law. Supporters say it’s necessary to deter recordings like the ones that targeted Planned Parenthood, in which the group’s officials were filmed discussing compensation for donations of fetal tissue as part of a sting operation conducted by the Center for Medical Progress. To bolster their case, they point to a surge in death threats against abortion providers since those videos were released. 

A host of media-industry and civil-liberties organizations, however, have lined up against the measure. The California Newspaper Publishers Association, which is leading the opposition effort, argues that without major changes the bill could criminalize acts of journalism, and the group has made the issue one of its top priorities in Sacramento.

Lobbyists and lawyers on both sides say negotiations over the bill have been active, with draft amendments going back and forth in advance of a Senate committee hearing scheduled for Aug. 8.

California is already one of 12 “two-party” states where it is illegal to record a private conversation, in person or on the phone, without the consent of all participants. Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, said the organization wants two things from the bill: first, to prohibit a person who makes an illegal recording from distributing that recording; and second, to create legal liability for “the inner circle of people that direct, employ, fund and actually participate in” making the recording.

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“In the age of social media and the Internet, it’s really the dissemination that creates the harm, not the initial taping,” Parker said. (Gomez, the Assembly sponsor, did not respond to multiple interview requests.)

In its current form, the bill would make it a crime when someone who violates California’s existing law against recording private conversations “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet Web sites and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.” Violations would carry penalties up to a fine of $2,500 and one-year jail sentence. That’s the same as the current punishment for making an illegal recording, but under the bill, repeated instances of distribution could get separate sentences.

Parker said the Planned Parenthood affiliate has no desire to suppress independent reporting about undercover videos–and indeed, media coverage of the controversy has often bolstered the group’s contention that the footage was misleadingly edited. A detailed analyses by the Los Angeles Times, for example, concluded that the videos were edited to remove “material that conflicted with [the] premise that Planned Parenthood-affiliated clinics profit from the sale of fetal tissue,” and that “the activists’ methods were geared more toward political provocation than journalism.” (Abortion clinics can recoup costs incurred in connection with donations of fetal tissue for research purposes, but may not profit.) 

But media groups worry that the language of the bill could put news organizations at risk–and even if it doesn’t, they are concerned it would establish new criminal and civil liability for sources, including potential whistleblowers.

“It’s really short-sighted of them to want to stifle speech,” said Nikki Moore, legal counsel for the California Newspaper Publishers Association.* “It’s sad that there was a lot of harm done by this, but attacking the First Amendment is not the right answer.”

The CNPA, the American Civil Liberties Union, and the Electronic Frontier Foundation all oppose the bill, as do groups representing the broadcast television, radio, and film industries. They’ve been lobbying for months to kill it or amend it significantly.

A version of the bill that put publishers in jeopardy would likely face a quick legal challenge. Under US Supreme Court precedent—the 2001 case Bartnicki v. Vopper—the publication of illegally recorded material is protected by the First Amendment, as long as the media organization publishing it did not participate in the illegal recording. An analysis by the staff of the Senate Public Safety Committee, completed in June, concluded that the bill passed by the Assembly “appears as if it would apply to a media organization that receives a recording… and would therefore face Constitutional challenges.”

As the negotiations continue, Planned Parenthood and its allies have signaled an openness to amendments that would make clear media organizations are not liable, and also to removing a provision that the the bill applies only to recordings of healthcare providers. Also under discussion are new exemptions, including protections for people recording evidence of human trafficking and people who give their recordings only to law enforcement agencies.

But there hasn’t been a proposal yet that is acceptable to both sides. Moore said the CNPA would remove its opposition if the entire 1,500-word bill were amended to a single paragraph stating that, when someone is convicted of making an illegal recording, distributing the recording to the public would be an aggravating factor in sentencing, unless the video was made for the purpose of exposing an illegal act.

Parker, of Planned Parenthood, said she sees a few deal-breakers in the CNPA proposal. Among them: The proposal would eliminate a provision in the bill allowing for private enforcement by civil lawsuits. Also, she argues, the exemption for recordings made for the purpose of exposing any illegal act is too broad. The Center for Medical Progress, after all, maintains that it was exposing crimes committed by Planned Parenthood.

Meanwhile, any version of the bill would create new penalties only when the recording itself was illegal–and with respect to the Center for Medical Progress videos, no one has proven that’s the case. Though California is a two-party consent state, under the state penal code a secret recording is legal if it is made where “the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Planned Parenthood has filed a federal lawsuit alleging invasion of privacy and illegal recording, among other claims, but no prosecutor in California has brought charges. (In Texas, the founder of the group and one his employees were indicted, but not for making secret recordings, and the charges were recently dropped.)

The bill passed the Assembly by a two-to-one margin, and as the negotiations continue, the odds of it failing in a floor vote in the Senate appear slim. That’s why the CNPA and its allies on this issue are working to amend the bill while it’s in committee. The Senate committee hearing, set for Monday, could be significant. 

But even if the Legislature approves a bill over the objections of media groups, the fight may not be over. Gov. Jerry Brown is a pro-choice Democrat, but he has been willing to veto plenty of Democratic bills, especially when they create new criminal offenses.

“You never know what could happen,” Moore said. “I’m cautiously optimistic that if it comes to the governor’s desk, we’d get a veto.”

* Correction: This post originally misstated Nikki Moore’s title. She is the legal counsel of the California Newspaper Publishers Association, not its general counsel.

Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.