Center for Medical Progress founder David Daleiden asked a federal appeals court to dismiss the "character assassination" waged by researchers seeking to redact their information as part of a public records request.
Ten of the Washington state-based researchers are seeking to block the release of their identifying information, such as job titles, connected to their taxpayer-funded work using body parts obtained from aborted babies. Daleiden attorney Peter Breen, of the Thomas More Society, said the plaintiffs have failed to produce evidence demonstrating that the release of details about their taxpayer-funded work would subjected them to reprisals or harassment. A district court granted a preliminary injunction. The three appellate judges are now weighing the suit's claim that research using organs obtained from abortion is protected by the First Amendment.
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"The District Court on remand invited additional evidence," Breen said. "Despite doubts at the first argument at this case, the plaintiffs produced no additional evidence … instead they've turned into this campaign of character assassination."
Daleiden and his attorneys have disputed the idea that the researchers' work falls under First Amendment protected activity. He has described his work as journalism, comparing it to other undercover reporting that has long been protected by federal and state courts when it comes to investigations of the meatpacking industry or the criminal justice system.
"The only party in this case with identifiable First Amendment advocacy work is Mr. Daleiden and he's now being pilloried for his own effectiveness in terms of his advocacy," Breen said.
Vanessa Power represented the 10 Jane Doe plaintiffs at the center of the suit during Monday's hearing. She argued the scope of the injunction was "narrow" and would not undermine public records law.
"This is simply applying Public Records Act and applying exemptions within the scope," she said. "We don't see [the suit] as extending [the act] beyond the contours of the law as it stands now."
Judge A. Wallace Tashima, a Bill Clinton appointee, disputed that characterization. "If we affirm the district court's position it would be an extension in this sense … we would recognize that there's some First Amendment protection for researchers."
"Why is the collection and delivery of fetal tissue a First Amendment activity? That's almost beyond me," he said. "It's like Grubhub delivering lunch to somebody up in the laboratory."
Power argued that as the research is linked to abortion it must enjoy special protection.
"If it didn't arise under the context of abortion … which is such a controversial and such a politicized issue in this country—it's the connection to that that brings it within the First Amendment," Power said.
"What you're saying is any connection with a controversial topic entitles the person on the other end of the connection to constitutional protection?" Tashima asked in a follow-up.
"We would say it's the context here with the associated risk of harm," she responded.
Daleiden received support from the Washington Coalition for Open Government. The state transparency advocacy group said the continued injunction would "gut the [Public Records Act] by creating an unworkable situation … and sets up huge barriers" for any citizen seeking out public records. Blocking the release of additional information would overturn decades of jurisprudence for public information laws, according to WCOG board member and counsel Stephanie Olson.
Judge M. Margaret McKeown, another Clinton appointee, questioned Olson's approach to the case, since the hearing only dealt with a preliminary injunction, rather than a final precedent-setting ruling on the lawsuit. "Your sky-is-falling situation seems premature to me," she said. Olson said the court's approach to extending First Amendment protections to research and the suit's focus on Daleiden's pro-life views invites viewpoint discrimination for accessing public records.
"It requires a distinction between the identity of the requestor to try to determine potential harassment, and that is going into an inquiry as to the purpose of the request, both of which are categorically prohibited by the PRA," Olson said. "It invites discrimination."
The public records suit is the second major civil litigation that Daleiden has faced since he began releasing undercover videos documenting the organ harvesting trade in the abortion industry in July 2015. He also is challenging a preliminary injunction obtained by the National Abortion Federation that prohibits him from releasing footage obtained at two NAF conferences. That suit is ongoing.