California Bill Criminalizing Media Reporting of Undercover Videos Alarms Free Speech Advocates
By Nick Cahill, Courthouse News Service
SACRAMENTO (CN) — Controversy surrounding secretly recorded videos showing Planned Parenthood employees discussing fetal tissue sales has morphed into a California proposal that would punish media companies for reporting on certain undercover videos. But media groups say the bill, which is on the verge of clearing the Legislature, could have a "chilling effect" on free speech and set the state up for First Amendment court battles.
Born from the 2015 hidden-camera footage released by the anti-abortion Center for Medical Progress, Planned Parenthood is pushing Assembly Bill 1671 which it claims will protect abortion clinics and other health care providers from similar malicious sting operations.
The bill would criminalize publishing undercover video footage of "health care providers" and subject third parties, including journalists, to penalties for reporting and distributing the illegally recorded footage.
Under AB 1671, a journalist receiving and posting footage from an anonymous source could be punished by the state as well as be opened up to potential civil lawsuits. Whistleblowers would not be exempt from the proposal either, regardless of how they obtained the illegal footage.
First-time offenders could be fined up to $2,500 while repeat offenders could face up to a year in prison.
Led by Assemblyman Jimmy Gomez, D-Los Angeles, the "Planned Parenthood" bill must hurdle the state Senate by an Aug. 31 legislative deadline.
Gomez's office declined to speak with Courthouse News regarding AB 1671 and instead referred requests to the bill's sponsor Planned Parenthood.
Opponents of the bill agree that while the undercover Planned Parenthood videos were unethical and underhanded, AB 1671 could do more damage by preventing journalists from obtaining and reporting on issues of public interest.
A combination of media, civil rights groups and state Republicans are leading the fight against the proposal they say will weaken the First Amendment.
Nikki Moore, legal counsel for the California Newspaper Publishers Association, said the bill creates a dangerous liability for the distribution of footage and could unintentionally punish more people than intended. She said the publishers association has been working with Planned Parenthood since March to narrow the bill, but that the series of amendments have not gone far enough.
"The scenario that [Planned Parenthood] is trying to prevent is a very specific one," Moore said. "We've been trying to help them find a way to accomplish their goals while not infringing on the First Amendment or creating liabilities for media."
It is already illegal in California to record a private conversation without the consent of both parties, in person or on the phone.
"Existing law makes it a crime, subject to specified exemptions, for a person to intentionally eavesdrop upon or record a confidential communication by means of an electronic amplifying or recording device without the consent of all parties to the confidential communication," Government Code section 632 states.
Legal precedent exists regarding the publication of illegally recorded footage. In the 2001 U.S. Supreme Court case Bartnicki v. Vopper, the high court ruled that the First Amendment protects speech that was illegally intercepted as long as the party didn't participate in the recording.
"We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," the majority opinion states.
The ruling is a focal point of the opponents' resistance to the Planned Parenthood proposal.
Planned Parenthood argues the law should go further and explicitly punish third parties for spreading the "confidential communication." It points to the spike in threats of violence it has received since the undercover videos went viral last year as the reason to tighten the state's privacy laws.
"The enormous amount of violent threats culminated in the Colorado shooting," said Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California.
She said the bill focuses on preventing the distribution of secretly taped material to the internet where it can explode. The contentious Planned Parenthood videos received millions of views instantly and forced a doctor identified in the videos to move because of threats, Parker said.
"Since the smear campaign began last summer, Planned Parenthood health centers have seen a 900 percent increase in threats and violence," Kathy Kneer, president and CEO of Planned Parenthood Affiliates of California, said in a statement. "That's why it's so important to pass AB 1671 — to protect the constitutional privacy rights and the safety of health providers."
But the publishers association, which lobbies on behalf of media groups including the Associated Press and the Hearst Corporation, and First Amendment advocates are skeptical of the bill's language regarding who can be liable for distribution. Journalists who didn't participate in the illegal recording but were given a copy and simply passed it on to their superiors could be liable under AB 1671.
"A person aids and abets the commission of an offense when he or she, with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, facilitating, or encouraging the commission of the offense, by act or advice, aids, promotes, encourages, or instigates the commission of the offense," the proposal states.
Adam Schwartz, senior counsel with the San Francisco-based Electronic Frontier Foundation, said the bill deals with two important fundamental American rights — right to privacy and a free press.
"When these two rights come into conflict, it's important that we write laws with a scalpel," Schwartz said. "The EFF is opposed because we think that it could be applied to punish a journalist who had nothing to do with making an unlawful recording."
The American Civil Liberties Union of California is also opposed to the Planned Parenthood bill, citing the proposal's "potential for real harm."
The opponents take issue with how the bill specifically criminalizes the distribution of communication with a health care provider. Targeting a specific area of speech amounts to content-based regulation of speech and is unconstitutional, the ACLU claims.
"The same rationale for punishing communications of some preferred professions or industries could as easily be applied to other communications [such as] law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry and religious sects," ACLU legislative director Kevin Baker wrote in an opposition letter sent to Gomez.
The Senate Appropriations Committee's Aug 8 analysis of the proposal also notes that the health provider clause "raises a number of issues." The analysis is used by committee members to prepare for upcoming votes — a de facto legislative cheat sheet.
"Consequently, to the extent this measure contains language that could be challenged as unconstitutional, this bill could result in potentially significant costs associated with litigation, both to the court and to the Attorney General," the analysis states.
On Monday at the Senate Appropriations Committee hearing, the California Department of Finance testified in opposition of the bill, noting the fiscal impact it could have on the justice system. The department also said there isn't sufficient evidence that the undercover filming of health care providers is a common enough occurrence to warrant a new law.
Despite the mounting opposition, Gomez remains adamant that his bill "closes a loophole" and won't have a large fiscal impact.
"The bill doesn't have a lot of cost, it's approximately $29,000 per year," Gomez testified during a May Assembly committee hearing.
Gomez has amended the bill six times since introducing it in January, and it has been buoyed by the support of the state's majority party. His fellow Democrats have passed the bill at each stage on a mostly party-line vote, including at a May 31 Assembly floor vote where it passed 52-26.
"This bill directly implicates the First Amendment, especially the concern of the press that this could ultimately penalize freelance reporters or journalists who distribute a truthful communication," Assemblyman James Gallagher, R-Nicolaus, said before voting against AB 1671.
Buried underneath the free speech concerns lies the burdensome cost of litigation, Moore said. Creating a new crime will open journalists up to civil lawsuits as well as strain California's overburdened courts.
"When you put media into the position where it has to assert its rights and protect itself, they are already losing," Moore explained. "Those are fights that are extensive but very important."
If passed, the new law could and should be challenged, the Electronic Frontier Foundation said.
"There's a very high likelihood of a First Amendment challenge and at the EFF we think that would be a very strong challenge that should prevail," Schwartz said.
"We're confident a facial challenge wouldn't stand," Parker of Planned Parenthood said regarding a potential challenge to AB 1671. "We've worked very hard to amend the bill."
The latest version of the bill cleared the Senate Appropriations Committee suspense file Thursday on a 5-2 vote, with Republicans casting the no votes.
It must be approved by the Senate by the end of the month. Gov. Jerry Brown's office does not typically comment on pending bills.
To Learn More:
AB-1671 Confidential Communications: Disclosure (California Legislature)
Texas Grand Jury Indicts Anti-Abortion Activists Behind Covert Planned Parenthood Video (by Jon Herskovitz, Reuters)
Kamala Harris to Investigate Group’s Video Sting of Planned Parenthood (by Ken Broder, AllGov California)
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