‘Citizen journalist’ jury verdict could impact all of us – negatively

For those not on the extremes of the abortion issue, last week’s jury verdict finding two “citizen journalists” liable for $2.3 million in damages to Planned Parenthood may not have have created too much of a ripple.

But for those who care about what’s right and what’s true, this Judgment Day wasn’t a good one.

Most of us are probably aware of at least the basic details of how anti-abortion activists Sandra Merritt and David Daleiden secretly recorded videos in 2015 purporting to show that Planned Parenthood workers were agreeing to sell fetal tissue for profit, a practice the group denies.

Daleiden, who leads the anti-abortion organization Center for Medical Progress, and co-defendant Merritt posed as biotechnology workers for a fake company called Biomax Procurement Services so they could secretly record videos of Planned Parenthood staffers between 2013 and 2015.

Planned Parenthood argued that the videos were deceptively edited and that it had only charged medical researchers for the costs of shipping, or other expenses tied to donating the tissue.

Unfortunately, as is common in our world, it’s hard to know whom to believe. We home, in our justice system, that truth will prevail. But in this case, we doubt that either truth or justice came out.

Before we go further, we obviously aren’t in a position, sitting here in a newsroom in Sweet Home, to determine what actually happened and who was right and who was wrong.

Certainly, the videos raised some serious questions about the abortion industry. They led to three congressional inquiries and criminal investigations in at least 15 states, though Planned Parenthood never faced charges.

But the legal proceedings have done little to shed light on the questions of who’s telling the truth, who’s doing what’s right.

Daleiden and Merritt were found liable by a federal district court jury last week for violating federal and state laws, after U.S. District Judge William Orrick limited the scope of the trial to determining whether Daleiden and Merritt committed fraud and trespassed when they presented themselves as fetal tissue harvester company officials in order to gain entry to medical conferences and interview Planned Parenthood employees in 2014.

“It is not about the truth of whether plaintiffs profited from the sale of fetal tissue or otherwise violated the law in securing tissue for those programs,” Judge Orrick wrote in jury instructions. “It is not about whether any plaintiff actually engaged in illegal conduct. Those issues are a matter of dispute between the parties in the world outside this courtroom.”

Defense attorneys argued that the two and others were acting as investigative journalists who were working to inform law enforcement of wrongdoing by Planned Parenthood in trying to profit on the sale of fetal body parts. No criminal charges have been brought against the Planned Parenthood, however.

Thanks to Judge Orrick’s jury instructions, some legal issues already have been decided: The defendants are liable for trespassing and fraudulently breaking vendor agreements in their undercover work. Great.

Other issues still remain to be resolved in another separate, criminal case against Daleiden, scheduled for this winter. The state of California has charged him with violating privacy and eavesdropping laws in secretly filming Planned Parenthood officials. Daleiden could face prison time in that case.

But aren’t there bigger issues here? The focus on almost peripheral issues smacks of a witch hunt, a kangaroo court.

The methods used by “citizen journalists” methods certainly were illegal under state law, but this wouldn’t be the first time in history that people uncovering malfeasance have had to use deception to do so.

Judge Orrick clearly has avoided what, to us, are the bigger issues, telling jurors that they had to focus on what he told them to focus on – issues that clearly benefit the plaintiffs. He also prohibited the defense from introducing video evidence that was “critical,” according to lawyers for Merritt and Daleiden.

He specifically instructed the jury it could not look at this as a First Amendment case, in which freedom of speech and the press could be considered a defense.

Journalism, especially when sources feel that being candid can put them at risk, can sometimes get messy. Reporters have gone to jail for refusing to reveal sources of important information they’ve published.That’s why shield laws exist in some states to protect reporters trying to uncover malfeasance. These are issues that are debated in college journalism ethics classes and in professional literature: Does the end justify the means? What if even part of what Merritt and Daleiden’s videos depicted were true?

This case has prompted concerns from the beginning about whether justice could actually prevail, even from journalists who aren’t particularly opposed to abortion.

Orrick was asked in 2017 to recuse himself from the case, as he has had “an ongoing and longstanding professional relationship with Planned Parenthood.” He is a founder of the Good Samaritan Resource Center in San Francisco, which houses a Planned Parenthood facility.

Lawyers for the defendants last spring convinced the California Supreme Court to look into claims of bias involving alleged close ties between Planned Parenthood and state Attorney General Xavier Becerra and his predecessor, Kamala Harris. That court let the case proceed.

Thomas Brejcha, president and founder of the Thomas More Society, which is representing Daleiden in the case, told the National Catholic Register that the “litany of facts” pointing to bias on the part of the California attorneys general involved in the case is “telling,” adding that prosecutors have not given similar scrutiny to other, similar undercover journalistic efforts.

“Never in the history of California has any journalist been prosecuted for a violation of this anti-eavesdropping law even though undercover stings, undercover recording is done almost routinely,” Brejcha said.

Felony charges for such practices were overkill, he argued, pointing out that even the Los Angeles Times editorial board called the charges a “disturbing overreach.”

Our point here is that, even when messy, journalism sometimes serves a greater good by righting wrongs. The two “citizen journalists” have been targeted by the state of California in a way that reminds us of what happened to early critics of government in Britain before the U.S. Constitution was written and what happens to those who question the powers that be in other countries – where journalists often end up dead.

Abortion is a sacred cow for many Americans. It’s an emotional issue for both sides, but so was slavery – and people suffered and died fighting over that one.

In the end, if California’s strategy gets wheels, if its methods are adopted by other states, including this one, the real losers in the end will be not just journalists. It will be the public that relies on them to root out injustice and wrongdoing.