In response to the undercover videos released this summer that exposed the abortion industry’s ugly and callous involvement in furnishing fetal body parts for research, the National Abortion Federation filed a federal lawsuit against the maker of the videos, the Center for Medical Progress, and its director, David Daleiden. NAF’s lawsuit seeks to bar the Center for Medical Progress and Daleiden from further public disclosures of the fruits of their investigation.
The Center for Medical Progress and Daleiden have just filed their opposition to NAF’s motion for a preliminary injunction. Here’s the introduction from their opposition (footnote omitted):
Plaintiff’s Motion for Preliminary Injunction raises the question whether a private confidentiality agreement can justify enjoining the disclosure of evidence of criminal activity obtained through investigative journalism on matters of national public interest. For the reasons stated below, including both the First Amendment and the numerous fatal deficiencies in the two state-law claims on which Plaintiff relies, the correct answer is no. The putative confidentiality agreements on which NAF relies are unenforceable to suppress disclosure of information about widespread tolerance for and willingness to engage in criminal activity among practitioners of late-term abortion, as well as desensitization toward the highly developed human fetus—issues of paramount public concern. NAF’s request for an injunction should be denied.
In September 2013, the National Abortion Federation (“NAF”) became aware of a start-up company called BioMax Procurement Services, LLC, which offered to pay abortion clinics for fetal tissue. NAF representatives encouraged BioMax to attend and exhibit at NAF’s Annual Meeting in April 2014 in San Francisco. In response to a tentative e-mail inquiry from BioMax about pricing and availability of exhibit space at the next meeting, NAF responded by sending a prospectus containing what NAF now claims is its most secret information: the exact date, time, and location of its next Annual Meeting.
BioMax representatives attended the 2014 NAF Annual Meeting and told dozens of NAF members and staff that its business plan was to pay abortion clinics for fetal tissue—and pay more than its competitors. From 2014 to 2015, it made the same proposal to abortion providers and clinic owners in several other venues. Consequently, BioMax became popular and respected in the abortion community.
But BioMax was not what NAF thought it was. BioMax was a test company launched by the Center for Medical Progress (“CMP”), as part of its journalistic venture, the Human Capital Project. The goal of the Human Capital Project was to investigate, document, and expose abortion providers’ attitudes toward and involvement in selling fetal body parts for research and other purposes. The means employed by CMP were standard for investigative reporting: the creation of a new identity; props and costumes to fit the role; the promise of a financial benefit in order to engage the targets of the investigation; hidden cameras and recorders; and, of course, the concealment of one’s true purpose. The goal was also the same: not to obtain money, property, goods, or services, but to gather information about illegal and unethical practices. As another district court in this Circuit recently held, using such deceptive tactics to procure information in undercover investigations is not “fraud” and is fully protected by the First Amendment. See Animal Legal Defense Fund v. Otter, ____ F. Supp. 3d ____, 2015 WL 4623943, at *3, *5-6 (D. Idaho Aug. 3, 2015).
CMP’s investigation uncovered extensive evidence in the abortion industry of willingness to engage in criminal practices, including the sale of fetal body parts for profit and the alteration of abortion methods to procure fetal body parts for research, as well as evidence of de-sensitization toward the highly developed human fetus by practitioners of late-term abortion.
NAF has spun this investigative journalistic endeavor into an eleven-count complaint containing allegations ranging from racketeering and fraud to trespass. Despite months of rhetoric about CMP’s putative “fraud” and “crime spree,” however, for its preliminary injunction motion, NAF relies on only two claims: breach of contract and violation of California Penal Code § 632.
Plaintiff cannot show a likelihood of success on these claims, nor can it show a threat of irreparable injury on the basis of the actions of third parties unrelated to Defendants who are strangers to this lawsuit. Moreover, NAF’s requested relief is both unsupported by the evidence and contrary to the public policy against restraining publication of matters of enormous public interest.