Judge Denies California AG’s Gag Order Request in Abortion Case

Defense: Request was 'unconstitutionally vague and overbroad'

(Photo by Michael B. Thomas/Getty Images)

A California judge denied a request for a gag order that would have prevented the legal team of two anti-abortion activists from speaking to the public during an ongoing legal battle.

David Daleiden and Sandra Merritt, two undercover videographers, are facing charges related to a series of videos capturing abortion facility employees and fetal tissue sellers candidly discussing organ harvesting. An investigation launched by then-attorney general and current presidential candidate Sen. Kamala Harris (D., Calif.) charged the pair with illegally taping confidential information and recording other people without their consent.

Harris's successor, California attorney general Xavier Becerra, requested the gag order on public statements from Daleiden and Merritt during the course of the case. The attorney general's office claimed the request was intended to "protect the safety" of the witnesses and accused the defense of "attempting to dissuade and distress the victims" through public statements and online posts during the case.

Daleiden's defense team called the request "baseless" and a violation of the First Amendment because it was "unconstitutionally vague and overbroad."

"It is a baseless attack on Defendants—who are already at risk of spending years in prison for their efforts to expose violent felonies—and an attempt to infringe on the public's interest in an open forum, all at the bidding of a powerful political special interest," they wrote in a court filing.

The attorneys also pointed out that public advocacy is a legitimate form of legal defense as advocacy can help raise money for pro bono defenses.

The Center for Medical Progress, an organization founded by Daleiden, has been posting daily updates on the case to its website. In Wednesday's update on the AG's request for the gag order, the CMP wrote, "Judge Hite ruled against the AG on First Amendment grounds and the lack of any evidence of wrongdoing by the Defendants."

Harris—who received tens of thousands of dollars from abortion supporters for her attorney general and Senate campaigns—started the initial legal action against Daleiden and Merritt in 2015. The next year, Harris ordered a search warrant against Daleiden and authorized a raid of his apartment.

Thomas More Society vice president Peter Breen, who is defending Daleiden pro bono, said Becerra's office is attempting to hinder the release of damaging material to abortion interests. He called the gag order request "an incredible violation of the First Amendment, of the people's right to know, of the right to a public trial."

"This was the latest of multiple attempts in the hearing to silence the defendants. The prosecution appears unwilling to let the truth be told," Breen said in a statement.