Planned Parenthood & The Journalistic Agenda Exception

Feb. 2, 2016 (Mimesis Law) — The reaction was mixed last week when a Harris County, Texas Grand Jury declined to indict Planned Parenthood over allegations that they had been caught on video trying to sell fetal tissue for profit. The decision was made even more controversial when that same Grand Jury indicted two members of the Center for Medical Progress, David Daleiden and Sandra Merritt, who had created the video.

The charges against Daleiden and Merritt accuse them of using fake California driver’s licenses in an attempt to dupe Planned Parenthood representatives into selling them fetal tissue. An additional charge against Daleiden accuses him of the misdemeanor offense of attempting to purchase human body parts.

As one would expect, the reaction to the indictments and the non-indictments caused a sharp divide between Pro-Choice and Pro-Life advocates. Pro-Life advocates hailed Daleiden and Merritt as heroic undercover reporters looking to expose a great evil through investigative journalism. In a classic example of politics making for strange bedfellows, this labeling of the two as “journalists” has gained the Pro-Life movement a temporary alliance from some members of the media.

There are two problems with that idea. First, calling Daleiden and Merritt “reporters” is a big stretch of that particular job description. Second, even if they were technically reporters, that wouldn’t exempt them from committing crimes. For some, this violates their concept of free speech.

Kevin Drum with Mother Jones opined:

I continue to have some doubts about these charges. As much as I dislike what Daleiden did – and the egregiously deceptive videos he put together after the sting – Texas law seems to make it almost inherently illegal for a reporter or anyone else to try to expose illicit activity. That’s often going to require a solicitation to commit a crime; it’s frequently going to require some kind of bogus ID; and it’s pretty much always done with an intent to harm. But if you put those together, you’ve automatically got a felony, even if the target of your investigation turns out to be a mafia front.

Well, yes, the law in Texas does frown upon vigilantism, even when the target is a mafia front. I can certainly sympathize with a reporter wanting to do investigative journalism, but that doesn’t impose law enforcement powers. Dalieden and Merritt had apparently watched Fletch a few too many times.

Pulitzer Prize winning columnist for the Houston Chronicle, Lisa Falkenberg minced no words when addressing the issue of whether or not Daleiden qualified as a journalist.

And speaking of journalistic integrity, which Daleiden seemed to cite in defense of his actions, no, Mr. Daleiden, you are not a journalist. No respectable journalist falsifies documents and lies about who he is. You are a fraud. And your cover is blown.

In a January 27th opinion piece for The Atlantic, Conor Friedersdorf did not actually refer to Daleiden and Merritt as “journalists,” but he clearly believed that their “investigation” wasn’t worthy of criminal charges. In his post lobbying for dismissal of charges against Daleiden (as well as professor Melissa Click for an unrelated incident), Friedersdorf reasoned:

Both have been charged with crimes. They may well be found guilty. And in both cases, charges brought against them should be dropped by the relevant prosecutors. Not because they’re beyond reproach. Not because they are necessarily “not guilty.” But because there’s no compelling reason to involve the courts in either matter. In a country that incarcerates too high a percentage of its citizens, where police struggle with a backlog of unsolved murders and uninvestigated rapes, where innocents sit in jail for months awaiting trial, criminally trying either of these two is a waste.

Well, first off, congratulations to Friedersdorf for simply regurgitating the mantra of pretty much every criminal defendant who is incarcerated on what they personally believe to be bullshit charges. Any defense attorney who has been licensed for more than five minutes has heard a frustrated client charged with a personal amount of drugs complain about being targeted for a piddly-ass case when there are murderers out there on the loose. That’s typically not a very persuasive selling point to the prosecution.

Setting aside the silliness of Friedersdorf’s plea for prosecutorial nullification, it is baffling that he finds Daleiden’s behavior so innocuous. Daleiden and Merritt were attempting to entrap Planned Parenthood representatives into doing something illegal. Their goals were to have the organization shut down after proving they were (to quote Ted Cruz) “an ongoing criminal enterprise” that had “confesse[d] to multiple felonies.” The workers in question, who, by the way, were doing nothing illegal, had their faces spread on news stations all over the world. How can Friedersdorf honestly say that these people weren’t harmed by Daleiden and Merritt’s actions?

Although Friedersdorf and others are calling the charges against Daleiden and Merritt “over-prosecuting speech,” one has to wonder how far they would defend this argument. What if the “reporters” were instead members of Radical Islam who were doing an “investigation” into buying nuclear waste and got caught in the process? At some point, it should be very clear why people operating under the title of “journalist” don’t have free reign to run whatever investigation they choose by any means necessary.

Salon’s Amanda Marcotte writes that David Daleiden is no journalist and the videos taken of Planned Parenthood representatives were no more than “a failed takedown operation.” She notes:

. . . the reason that Daleiden isn’t a journalist is because of his relationship to the truth. Regardless of your political views, the truth should always be the trump card for a journalist. Daleiden, however, has never shown anything but utter contempt for the truth in his work. Whenever the truth and what he wishes were true collide, Daleiden has chosen to lie rather than tell the truth.

Marcotte also notes that due to the fact that Daleiden is not a journalist, he is not entitled to protection of journalistic privilege. Obviously, that’s a fair point, but even if Daleiden was truly a journalist, this “privilege” would not protect him for his actions. While journalistic privilege may protect him from having to divulge a source, it doesn’t allow him to break the law while attempting to get a story.

Ultimately, Friedersdorf’s plea to drop charges against Daleiden isn’t a plea for the protection of free speech; it is a plea for the protection of fraud. After the indictments, it was to be expected that Pro Life advocates would call for a dismissal of charges. The same calls for dismissal coming from members of media outlets like Mother Jones and The Atlantic is somewhat surprising, however.

The Daleiden/Planned Parenthood case may ultimately prove to be one that tolerates no neutrality from anyone.

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