Media Groups Still Wary of Potential Impact on Journalists from California Law Criminalizing Undercover Videos

Tuesday, October 04, 2016
Gov. Jerry Brown signs bill into law (photo: Kevork Djansezian, Getty Images)

By Nick Cahill, Courthouse News Service


SACRAMENTO, Calif. (CN) — In a move that could potentially see lawsuits against journalists for reporting on undercover footage, California Gov. Jerry Brown on Friday approved a Planned Parenthood-sponsored bill that enhances penalties for secretly recording health care providers.


Although it's already illegal to record private conversations in the Golden State, Assemblyman Jimmy Gomez, D-Los Angeles, convinced the Legislature and governor that stronger laws were needed to prevent undercover sting operations like the one that ensnared Planned Parenthood last summer.


Planned Parenthood sponsored and heavily lobbied for Assembly Bill 1671 after sting videos showing doctors discussing fetal tissue sales with fake buyers were released last year.


The bill creates a new crime and enhances penalties for individuals that secretly record or distribute footage of health care providers. Californians caught secretly recording private conversations with a health care provider could be incarcerated for up to a year under AB 1671.


Originally, the bill ran into fierce opposition from lobbyists such as the California Newspaper Publishers Association and the American Civil Liberties Union of California. The groups warned that journalists simply distributing the footage by reporting on it could be prosecuted under the original bill.


Gomez and Planned Parenthood amended the bill seven times, including three times in August ahead of a crucial Senate floor vote. The last round of changes exempted journalists from criminal prosecution as long as they didn't participate in the illegal recordings.


The publishers association officially removed its opposition days before the final vote, but it remains skeptical of the bill's potential impact to its media clients. Since AB 1671 creates a new crime, journalists and media groups could still be sued for reporting future undercover videos.


In the end, the controversial bill cleared the Senate and Assembly on the final night of the legislative session on a mostly party-line vote. Brown signed the bill without comment Friday.


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.


Critics claim AB 1671 will likely be challenged by free-speech activists because it protects a specific industry - Planned Parenthood - and amounts to content-based regulation of speech.


"The same rationale for punishing communications of some preferred professions or industries could as easily be applied to other communications by 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 this summer.


Because Brown didn't offer a signing message it's tough to gauge his actual stance on the bill, said Nikki Moore, legal counsel for the publishers association.


"I think by signing the bill Brown must think that it's narrowly tailored," Moore said of Brown's signing. "Although it seems a little out of step with his ideological position of not wanting to create new crimes."


Planned Parenthood reacted by thanking Brown and commending him for protecting health care providers from "anti-abortion extremists."


"In signing AB 167 Gov. Brown sent a clear message to anti-abortion extremists that you cannot break the law in California or you will be held accountable," Kathy Kneer, president of Planned Parenthood Affiliates of California, said in a statement. "The rest of the nation looks to California to be on the leading edge of protecting access to reproductive health care. We continue that leadership today."


To Learn More:

California Bill Criminalizing Media Reporting of Undercover Videos Alarms Free Speech Advocates (by Nick Cahill, Courthouse News Service)

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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