From Planned Parenthood Fed'n of Am., Inc. v. Newman, decided today by the Ninth Circuit (Judge Ronald Gould, joined by Judge Mary Murguia and District Judge Nancy Freudenthal):
Defendants-Appellants [Center for Medical Progress, David Deilen, and others] … used fake driver's licenses and a false tissue procurement company as cover to infiltrate conferences that Plaintiffs-Appellees … hosted or attended. Using the same strategy, Appellants also arranged and attended lunch meetings with Planned Parenthood staff and visited Planned Parenthood health clinics. During these conferences, meetings, and visits, Appellants secretly recorded Planned Parenthood staff without their consent. After secretly recording for roughly a year-and-a-half, Appellants released on the internet edited videos of the secretly recorded conversations.
Planned Parenthood sued Appellants for monetary damages and injunctive relief. After pre-trial motions and a six-week trial, Appellants were found guilty of trespass, fraud, conspiracy, breach of contracts, unlawful and fraudulent business practices, violating civil RICO, and violating various federal and state wiretapping laws. Planned Parenthood was awarded statutory, compensatory, and punitive damages as well as limited injunctive relief.
Appellants argue that the compensatory damages awarded against them are precluded by the First Amendment and that Planned Parenthood did not show that Appellants violated the Federal Wiretap Act…. We affirm the awards of compensatory and punitive damages, but we reverse the jury's verdict on the Federal Wiretap Act claim and vacate the related statutory damages for violating the Federal Wiretap Act….
"[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cohen v. Cowles Media Co. (1991). {We express no view on whether Appellants' actions here were legitimate journalism or a smear campaign because even accepting Appellants' framing, the First Amendment does not prevent the award of the challenged damages.}
