Editor’s Note: This post has been updated since its initial publication.
Yesterday evening, the Center for Medical Progress undercover footage — recorded at the 2014 and 2015 National Abortion Federation conventions — was removed from YouTube, supposedly for a violation of the site’s Terms of Service agreement. (A copy of the video can be found here. More detailed footage giving context for some of the clips is available here and here.)
A few hours later, news emerged that Judge William Orrick — the California district judge who granted NAF and Planned Parenthood’s request for a preliminary injunction to prevent the release of this video footage — had ordered the CMP’s lead investigator David Daleiden and his attorneys to appear at a June 14 hearing to consider holding them in contempt for releasing the footage yesterday morning.
According to the attorneys defending CMP — Steve Cooley and Brentford Ferreira — they had the ability to release the footage in conjunction with California’s prosecution of Daleiden and his colleague Sandra Merritt, both of whom are facing 14 felony charges in the state for recording “confidential communications.” More clarification from the attorneys’ PR representative to National Review yesterday:
[Calif.] Attorney General Xavier Becerra has entered this footage into the public record by filing a public criminal proceeding based on it. The preliminary injunction obtained by NAF in a federal civil suit cannot bind this State criminal proceeding. (In fact, the SF Superior Court is now releasing certified copies of the court filings to the public with the links to the videos.)
It remains unclear, then, how Orrick had the authority yesterday evening to order Cooley and Ferreira to take down the footage and threaten them with contempt charges. National Review is awaiting further clarification from the CMP’s lawyers, and more information is expected later today.
Some mainstream media outlets that did not report on the new CMP footage yesterday have posted the AP wire report regarding the possible contempt charges. Other outlets, including the New York Times, NBC, and CNN have yet to report on the latest video at all.
More details on the undercover video and the related felony charges against Daleiden and Merritt are available here.
Update May 26, 4:15 p.m.: One of the defense attorneys for David Daleiden and his colleague Sandra Merritt tells National Review that he removed the latest undercover CMP footage from his website around 8 p.m. EST yesterday evening, after he received word that Orrick had determined the release of the footage to be in violation of the preliminary injunction he had issued in the civil case against Daleiden.
Orrick’s gag order arose during the case brought against Daleiden by the National Abortion Federation and Planned Parenthood, both of which wanted the court to prevent the release of the undercover footage from the 2014 and 2015 NAF conventions. That case is currently on appeal.
Meanwhile, Steve Cooley is one of two attorneys representing Daleiden and Merritt in their criminal case, which began in late March when Calif. attorney general Xavier Becerra charged the two undercover investigators with 14 felony counts of recording “confidential communications.”
According to Cooley, the San Francisco Superior Court made much of the undercover footage publicly available when the videos were filed as part of the proceedings in that criminal case. Cooley’s decision to make that footage available on his own site was primarily an effort to make public what is already technically part of public records, in order to give the media and the public better access to information as the case unfolds.
Cooley referred to the issue as a “conflict of laws,” pitting a district judge’s injunction against the Superior Court’s decision to file the videos as part of public records. “The blog was nothing more than a memorialization of public filings in the history of the case,” Cooley says of the webpage where he posted the videos yesterday morning. He called California’s criminal case a “selective, ill-motivated, and ill-founded prosecution.”
Daleiden, Cooley, and defense attorney Brentford Ferreira will appear before the San Francisco Superior Court on June 8 to receive the court’s ruling on the demurrer filed in response to Calif.’s felony charges. Orrick has ordered a June 14 hearing in U.S. district court as part of the ongoing civil case, to consider contempt sanctions related to the release of the video footage that was subject to the injunction.