On Tuesday, October 18, 2016, undercover journalist David Daleiden and his legal defense team, including the Thomas More Society’s Thomas Brejcha and Peter Breen, asked the 9th Circuit U.S. Court of Appeals in San Francisco to reverse a July 2016 lower court order. The decision prevents Daleiden from publicizing any video showing National Abortion Federation activities, including alleged illegal ones. The ruling granted the National Abortion Federation a preliminary injunction, despite evidence of apparent wrongdoing in the videos.
The reversal request included the following key points:
- Because a preliminary injunction is a court-ordered prior restraint on speech, it is prohibited by the First Amendment of the U.S. Constitution. The National Abortion Federation argument has already been rejected in previous cases.
- A private confidentiality agreement may not be enforced to suppress publication of matters of great public interest. No court has recognized this assertion as valid, and should certainly not be expected to block information concerning alleged illegal, unethical, and dehumanizing behavior.
- National Abortion Federation has failed to show irreparable harm. The organization regularly promotes its abortion activities, and any opposition to such is clearly protected by the Constitution’s guarantee of free expression.
The case revolves around a dozen undercover videos, produced by Daleiden and the Center for Medical Progress and released over the last two years, that expose the abortion industry’s callous and inhumane treatment of aborted babies’ body parts. Daleiden has more videos to release, but is currently legally prevented from doing so.
“Planned Parenthood and the National Abortion Federation are trying to suppress the freedom of the citizen press and the public’s right to know,” declared Daleiden. “This is in order to keep clear evidence of their coordinated criminal sale of aborted baby body parts from being revealed.”
During the hearing, legal representatives of 14 attorneys general were allowed to address the court. The group, which filed an amicus brief in the case, asked that the undercover videos be released at least to law enforcement to determine and act upon criminal activity.
The National Abortion Federation’s attorney argued that the abortion industry has a “First Amendment right to exclude members of the public.” Using rather unclear logic, he tried to explain that “Abortion is an extremely safe procedure in this country,” because “members of the industry can gather together to discuss issues they can’t discuss with the public.”
Justices Consuelo María Callahan, Andrew D. Hurwitz, and Donald W. Molloy of the 9th Circuit heard the request.
If the 9th Circuit dissolves the injunction, the original case will proceed in the lower court. If, however, the preliminary injunction is upheld, Daleiden and his attorneys can appeal the decision to the entire 9th Circuit or to the United States Supreme Court.