Lawyers for Planned Parenthood investigator David Daleiden claimed a victory on Wednesday as the Ninth U.S. Circuit Court sent back a lower court's ruling against him. “The Court of Appeals, by reversing this decision and remanding this case back to District Court, has prevented a serious threat to the public's right to know how their tax dollars are being spent,” said Peter Breen, special counsel for the Thomas More Society who argued the appeal for Daleiden.
David Daleiden is the project lead at the Center for Medical Progress, the group that released undercover videos of conversations with Planned Parenthood officials and others in the abortion industry, as well as interviews of a former clinician for a tissue harvester.
The videos claimed to report on the transfer of fetal tissue of aborted babies from clinics to tissue harvesters for research purposes. Daleiden and other citizen journalists created a fake medical supply company and adopted fake identifications to pose as representatives of a fetal tissue procurement company looking to possibly do business with Planned Parenthood clinics. They discussed possible prices for fetal tissue of aborted babies. Compensation for fetal tissue of aborted babies that is used for research is allowed under federal law for, provided the amount of compensation is not for “valuable consideration” and is “reasonable,” to cover operating expenses like storage and transfer.
In the particular case decided on Monday, Daleiden had requested to view records from the University of Washington’s acquisition and use of fetal tissue of aborted babies for research in their Birth Defects Research Laboratory. According to his lawyers, Daleiden requested that the names and personal contact information of persons in the records not be made public, but the university sued to block even more information like the job titles and departments from being made public.
“The government employees and the abortion personnel are seeking to force heavy redactions in public documents about their work procuring, processing, and transferring the organs and tissue of aborted human fetuses, in connection with the school’s taxpayer-funded Birth Defects Research Laboratory,” the Thomas More Society stated. “Such heavy redactions render these public documents useless for investigative purposes,” the group said of the additional requested redactions.
A district court ruled in the university’s favor, issuing an injunction on the additional information being made public. Daleiden’s lawyers appealed to the Ninth U.S. Circuit Court of Appeals. On Monday, a three-judge panel of the Ninth Circuit unanimously ordered the lower court to explain further why it had allowed censorship of the public records.
The “Doe Plaintiffs” — or the persons whose information was contained in the records — would have to prove both that they “were engaged in activity protected by the First Amendment” and that they faced a “reasonable probability” of harm which could threaten their First Amendment rights, due to backlash once the records were made public, the court said.
The Ninth Circuit kept in place a temporary injunction on release of the information, to allow the district court time to find if the plaintiffs’ claims met the standards for the information to be censored. “We remand for the district court to address how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups of individuals,” the ruling said.