Constitutional Scholars May Not Agree with What Daleiden Says, But They Defend His Right to Say It
Thomas More Society Welcomes Broad Coalition Defending Undercover Journalist’s First Amendment Rights
To date, eight amici curiae (“frien
ds of the court”) briefs have been filed in connection with the appeal of an injunction entered against undercover citizen journalist David Daleiden prohibiting him from releasing videotapes that he filmed at two abortion industry conferences. Thomas More Society attorneys representing Daleiden are grateful for this broad support for Daleiden’s constitutional rights on the part of so many amici. The appeal arises out of a lawsuit in which Daleiden has been sued by the National Abortion Federation (“NAF”) for alleged violations of the federal racketeering (“RICO”) law because of his internet postings of videotapes and research exposing Planned Parenthood’s and other abortionists’ involvement in trafficking body parts of aborted babies as well as other violations of federal law. This includes evidence that partial birth abortions are still being used to harvest “intact fetal cadavers,” which command premium market prices. The amici filings come from diverse groups, including those who do not share Daleiden’s prolife views, an alliance of state attorney generals, a coalition of U.S. Congressmen, and others.
Thomas More Society attorneys Thomas Brejcha, Peter Breen, Matt Heffron, and Corrina Konczal represent Daleiden, together with California based cocounsel, in the appeal filed with the Ninth Circuit U.S. Court of Appeals in San Francisco. The appeal prays for reversal of a preliminary injunction entered by District Judge William H. Orrick of the U.S. District Court for the Northern District of California, which bars Daleiden, his company, Center for Medical Progress, and his confederates from publishing or disclosing undercover videos taken at NAF annual conventions in 2014 and 2015. Daleiden argues, among other things, that the lower court decree constitutes an unconstitutional “prior restraint” on free speech that wrongfully deprives American citizens of access to otherwise hidden facts at the pinnacle of newsworthiness and of surpassing public interest.
The “friend of the court” briefs filed in the appeal include the following:
Additionally, law faculty from Harvard, Stanford, Cornell and other public and private university law schools have joined in filing a brief insisting that federal courts do not have the power to prohibit the distribution of information relevant to controversial matters of public concern a brief which quotes extensively from another amicus brief previously been filed in the lower court by the Reporters’ Committee for Freedom of the Press, attacking the district court’s earlier entry of a temporary restraining order as an illicit “prior restraint” banning dissemination of the NAF videotapes.
The law professors’ brief asserts that while they “do not agree with one another on all aspects of the controversial issue of abortion,” they nonetheless “are united in insisting that all Americans no matter what their views on abortion have an unfettered right in our society to have access to important information about controversial matters, including but by no means limited to abortion.” The constitutional concerns expressed include a disagreement with the district court’s analysis that Daleiden had engaged in “fraud.”
Rather, the brief affirms Daleiden’s role as a member of the press, as the composition of the Fourth Estate is now “broadly understood at this moment in the digital revolution” and as citizen journalists, equally as so-called mainstream media, play a “vital role” in providing crucial information to the general public.
The Attorney Generals of Alabama, Arizona, Arkansas, Georgia, Louisiana, Michigan, Montana, Nebraska, Nevada, Oklahoma, South Carolina, Texas, Utah and Wisconsin have also filed a brief in support of Daleiden, asking for a reversal in the case. An additional amicus filing by the Susan B. Anthony List was also filed on behalf of six U.S. Congress Representatives. This amicus brief notes that, although a Congressional committee had subpoenaed the suppressed NAF videotapes, and even though the district court ultimately permitted Daleiden to comply with that Congressional subpoena, viewing of those videotapes was restricted to a very limited audience and were inaccessible to the rest of the American public.
Read the appeal brief appeal filed on April 19, 2016 for David Daleiden in NAF’s RICO lawsuit here.
