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Attorneys for undercover journalist David Daleiden argued before the Ninth Circuit Court of Appeals this week that their client should be allowed to release the undercover recordings he made at a National Abortion Federation (NAF) conference of Planned Parenthood that show abortion industry executives discussing the illegal sale of aborted fetal parts.
Some of Daleiden’s videos were released to the public years ago, creating an uproar, particularly among pro-lifers. The videos showed that abortionists, particularly executives for Planned Parenthood, the nation’s largest abortion organization, were selling the body parts of aborted babies. That was just a small portion of the recordings, as there were hundreds of hours of additional footage that was never released to the public.
Daleiden has been embroiled in legal battles since releasing the videos. It started in 2014 when Daleiden, while posing as a buyer of fetal tissue, signed a nondisclosure agreement (NDA) with NAF agreeing that he would not release information from its trade conference.
In 2021, U.S. District Judge William Orrick issued an injunction barring Daleiden from ever releasing the videos. Daleiden’s attorneys have argued that the content of the videos is of public interest, but Orrick, who has ties to Planned Parenthood, conducted his own review of the footage and determined there was no criminal activity committed, a determination disputed by OB-GYN and abortionist Forrest Smith, who reviewed the videos and said that Planned Parenthood violated standard medical practice.
The case was appealed, and on Tuesday, Daleiden’s attorneys argued before the three-judge panel of the Ninth Circuit that he should be able to release the remainder of the footage. “Every moment’s continuance of this injunction amounts to an indefinable violation of the First Amendment,” attorney Heather Hacker said, referencing the Pentagon Papers, a case that came about when a defense contractor illegally copied a top secret report about U.S. involvement in Vietnam and leaked it to the New York Times and the Washington Post. The government sought an injunction, but the Supreme Court eventually heard the case and allowed the document to be published, in what was considered a landmark win for the First Amendment and press freedom.
Hacker explained, “While NAF may disagree with what the footage proves and may dislike Daleiden’s methods, that cannot control the outcome of this case,” adding that “it includes over 500 hours of footage, huge portions of which are not even arguably confidential.”
In a previous criminal case, charges were dismissed against Daleiden because the court found them to be recordings of conversations in public places with no expectation of privacy.
The three judges seemed skeptical. Judge Margaret McKeown noted, “If he didn’t want to sign it, he could have left.”
She added, “Your propositions don’t track really onto the facts here. We have a specific waiver that he was asked to sign and basically the district court made the termination that he had intimate familiarity with nondisclosure agreements.”
NAF’s attorney, Adam Sorenson, argued, “That is the contract that makes clear that an attendee cannot disclose to any third party any information learned that day in the course of attending the conference.”
Sorenson claimed the balance of public interest favors NAF’s requested injunction. “On the one hand you have the defendant’s limited interest in information that he lied to obtain and stole, and you have a limited public interest in that same information.”
Hacker disputed the claim that the NDA prevented Daleiden from releasing the videos. She said it “defines confidential information, not as all information that you receive at the conference, but instead, as ‘information that NAF may furnish.” The information in the videos wasn’t from NAF, she argued, but were “casual business conversations that were held between individuals attending the conference.”
An all-out war has been waged against Daleiden since he released the videos. Former California attorneys general Kamala Harris and Xavier Becerra both launched criminal investigations and numerous court battles against him. His reputation as a journalist has been targeted by members of the media, who claim that Daleiden is no journalist, as though undercover tactics are somehow beneath the profession.
Of course, undercover journalism has been a pivotal tool in uncovering corruption and illegal activity for over 100 years, and not just by “professional” journalists but also “citizen” journalists. The media has also contended that Daleiden “deceptively” edited the videos; that claim, however, was thoroughly refuted in a Fifth Circuit Court of Appeals ruling, which cited a report from a forensic firm confirming the authenticity of the videos.
So why the desperate attempt to block the release of the videos? If abortionists truly did nothing wrong, the quickest way to prove that is to release the entirety of the tapes. Proving that the videos have no evidence of any harvesting and sale of babies’ body parts would do wonders for Planned Parenthood’s reputation, which despite its denials, has been further stained by the videos.
The reason there is such a widespread effort to block the videos is the same reason that the videos angered so many. They likely show evidence that the abortion industry is engaged in killing children and selling their body parts for profit. Why the opaqueness of this entire process? Why did Judge Orrick not recuse himself for his connections to a Planned Parenthood clinic that sold fetal tissue to StemExpress, a wholesaler the videos exposed? Why should the opinion of one judge who reviewed hundreds of hours of video but refused to consider the report of an OB-GYN and former abortionist settle the question of whether or not there is any criminal activity present?
The public has a serious interest in these videos and an NDA shouldn’t block further examination of whether or not the abortion industry is engaged in the illegal sale of fetal tissue. How else was Daleiden supposed to obtain this alleged proof? If he had not signed the NDA, he would not have been allowed access. Switch the players: Imagine if this was a journalist exposing a factory flagrantly polluting the water supply, a pharmaceutical company releasing a product it knows will likely harm people, a company using child labor, or any other potential crime — would a court allow an NDA to stop the release of recordings that exposed such harmful and illegal activities?
Moreover, at a time when the FBI has been shown engaging in entrapment and even encouraging kidnappings of political figures, a federal judge is saying it’s not permissible to violate an NDA, an NDA that may not even bar the release of such material? It’s fine for the New York Times to release a sitting president’s illegally disclosed tax returns or for Politico to release a leaked draft of a Supreme Court opinion, but it’s not okay for a journalist to expose companies engaged in aborting babies that are selling their arms, legs, organs, heads, and entire bodies for medical research and profit, in clear violation of federal law?
This has nothing to do with breaking a contract and everything to do with protecting the abortion industry.
Ephesians 5:11 says, “Do not participate in the unfruitful deeds of darkness, but instead even expose them.”
The Bible instructs Christians to walk in light, not to carry out a double life in the dark. But it goes beyond that and encourages Christians to stand up for truth and to point out wickedness. If the videos show what Daleiden claims — which, based on what’s already been released, certainly seems to be the case — then it is truly evil that he is shining light on.
What kind of justice system would hide behind a nondisclosure agreement that an undercover journalist signed for the purpose of posing as a buyer of fetal tissue to expose and stop such atrocities?
For the sake of press freedom, transparency, and the truth, it is imperative that these videos are allowed to be made public. The American people have a clear right to know whether or not the abortion industry is illegally buying and selling fetal tissue.
Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.