David Deleiden (center) outside a courthouse in Houston, Texas, February 2016. (Reuters photo: Ruthy Munoz)

Its decision to go after two journalists who exposed Planned Parenthood reeks of selective prosecution.

It’s becoming increasingly clear that in the state of California, the right to abort a child is the chief liberty in the land, and all other liberties must bow before it. Few things illustrate this sad and morbid truth more than the decision of the California attorney general to prosecute (or, more accurately, persecute) David Daleiden and Sandra Merritt.


Yesterday California charged Daleiden and Merrit with a whopping 15 felony counts based on their undercover videos — released through the Center for Medical Progress — showing Planned Parenthood officials discussing, among other things, harvesting and possibly even selling the organs of aborted babies. The heart of the indictment (14 of the 15 counts) is the claim that Daleiden and Merritt wrongly recorded alleged “confidential communications” between complete strangers at public conferences and at public restaurants.

California’s case not only fails on the merits, it reeks of selective prosecution. There is no shortage of examples of concealed-camera videos in California exposing scandalous behavior (the Federalist’s Sean Davis has been tweeting them since the indictment), often in the arena of animal rights. In 2014, a group called Mercy for Animals released an undercover video that “allegedly show[ed] widespread animal abuse and cruelty at one of California’s largest duck farms.” Authorities reportedly responded to the video — by investigating the farm.

In 2015, the same group released yet another undercover video, this time exposing “apparent mistreatment of chickens at a Foster Farms poultry slaughterhouse in Fresno and at three poultry farms in Fresno County.” Once again, authorities responded — once again by investigating the farm.


But the lives and deaths of chickens and ducks rate higher than the lives and deaths of human babies in the womb, so the Center for Medical Progress triggered an entirely different law-enforcement reaction. Pro-life journalists must be prosecuted.


Yet even if you divorce the case from its damning context, California’s case is hardly airtight. In fact, there’s a California case explicitly holding that state criminal law does not apply to undercover journalist recordings nearly identical to Daleiden’s. In Wilkins v. National Broadcasting Company, the victims of an undercover Dateline NBC sting sued NBC, alleging (among other things) that it violated California Penal Code Section 632 (the exact provision at issue in Daleiden’s case) when it taped a lunch meeting at a restaurant with a company salesperson. The court ruled for NBC, holding that the lunch meeting wasn’t a “confidential communication”:

[NBC producers] Cloherty and Surles were virtual strangers to [company representatives] Wilkins and Scott, and the two people who accompanied them were total strangers, about whom Wilkins and Scott never inquired. Moreover, the topic of the lunch was SimTel’s business and Wilkins gave a sales pitch he had given to many others. Waiters frequently came to the table, but Wilkins did not acknowledge them, pause in his sales pitch, or even lower his voice.



Since the Wilkins case, the California Supreme Court slightly expanded the definition of “confidential communication” under the statute, but a quick survey of the relevant cases shows that it is difficult for even civil plaintiffs to prove that they had an “objectively reasonable expectation of privacy” in public locations.

And make no mistake, the conversations at issue took place at public locations, including multiple restaurants and the 2014 National Abortion Federation conference. While the NAF sought to keep the contents of the conference itself confidential, it strains credulity that therefore every conversation at that conference was a “confidential communication” under California law.

Indeed, when combining the facts of the case with California’s apparently selective prosecution, the state’s conduct raises serious First Amendment concerns. It’s true that the Constitution doesn’t empower reporters to break the law with impunity, but it’s also true that prosecutors don’t have a free hand to prosecute journalists they dislike while giving a free pass to reporters they deem sufficiently sympathetic. Prosecutorial discretion is a powerful weapon, and California is wielding it against life and for the abortion lobby.

Fairness and law notwithstanding, Daleiden is clearly in for the fight of his legal life. California’s entire political establishment is growing ever-more repressive against people of faith and the pro-life movement. In close cases it may be difficult to find a sympathetic judge. Even here, with solid precedent on Daleiden’s side and a First Amendment that should tip the scales in his favor even further, progressive judges may be tempted to punish Planned Parenthood’s worst journalistic enemy.


Big Abortion holds the Democratic party in a vise grip, and it now may use that power to send a man to prison for embarrassing the nation’s largest abortion provider. Two young journalists may pay a steep price for doing work that the Left admires — at least when reporters are protecting ducks and chickens. But babies in the womb? They only have the right to die.