A California judge on Tuesday said David Daleiden "was engaged in criminal activity irrespective of his journalistic status.”

Daleiden, who coordinated his smear campaign against abortion care providers with Republican lawmakers and operatives, could face prison time if his case goes to jury trial.

Eric Kayne / Getty Images

A California judge on Tuesday ruled that anti-choice activist David Daleiden broke the law when he surreptitiously taped private conversations with abortion providers as part of a campaign to smear Planned Parenthood.

The ruling all but clears the way for a jury trial over the controversial recordings.

Daleiden, who coordinated the smear campaign against abortion care providers with Republican lawmakers and operatives, could face prison time if his case goes to a jury trial.

Tuesday’s ruling comes as a criminal preliminary hearing against Daleiden and co-defendant Sandra Merritt wraps up in San Francisco Superior Court, where abortion providers have testified anonymously against the pair. Raw footage of their discussions about fetal tissue donation has been played in court over the past two weeks.

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Daleiden and Merritt insist they are “citizen journalists” who went undercover to investigate alleged fetal tissue trafficking by Planned Parenthood, therefore exempting them from liability under California’s eavesdropping law.

Daleiden had also sought to get overturned the 2016 search warrant for his Long Beach, California, apartment that would’ve led to the dismissal of the bulk of felony charges pending against him, claiming that as a “citizen journalist,” he was entitled to the protections of the California Shield Law. On Tuesday, Judge Christopher Hite declined to immediately resolve the dispute over Daleiden’s reporting credentials. He denied Daleiden’s motion because Daleiden “was engaged in criminal activity irrespective of his journalistic status.”

Daleiden has never worked as a journalist, and state prosecutors insist he doesn’t qualify for Shield Law protections. Some of the nation’s foremost journalists and journalism scholars said in a 2016 court filing that Daleiden wasn’t acting as a journalist in secretly recording abortion care providers. The videos served as pretext for Republican lawmakers in some states to defund Planned Parenthood. The man who killed three people at a Colorado Springs Planned Parenthood facility in 2015 repeated talking points from Daleiden’s videos.

“Even assuming Daleiden was a journalist at the time of the recordings his actions would not be protected by the California Shield Law or the Federal Privacy Protection Act under the circumstances alleged in the search warrant,” Hite ruled. “While this newfound freedom of information and speech brings about different perspectives and discussions, it does not give either the media or a citizen journalist free reign to violate criminal laws applicable to the general public.”

Posing as executives of a fake fetal tissue procurement company keen on doing business with Planned Parenthood, Daleiden and Merritt filmed abortion providers at the National Abortion Federation’s (NAF) annual meeting in California in 2014 and 2015. Through an anti-choice front group called the Center for Medical Progress (CMP), Daleiden and Merritt released heavily edited videos in 2015 to falsely accuse Planned Parenthood of illegally profiting from the sale of fetal tissue. They face charges of felony invasion of privacy and conspiracy and could go to prison.

Hite’s ruling Tuesday was the clearest indication that he intends to take the case to trial. A day earlier, the defense argued that the people who were filmed had no reasonable expectation of privacy because they were filmed in public, where conversations can be easily overheard.

Daleiden testified he believed he had observed California’s eavesdropping law by filming solely in public places. He and Merritt turned down invitations to meet abortion providers in private despite the likelihood of obtaining better quality footage in the quieter surroundings, he said. “I chose to keep the recordings within the boundaries of the California law as I understood it,” Daleiden said.

But when Deputy Attorney General Johnette Jauron stated that he had stolen data from a Northern California-based fetal tissue company for his investigation, Daleiden struggled to explain himself.

“That’s not true,” he said. Later he elaborated, “I don’t believe I took data away from the company.”

A former employee of StemExpress, a company that uses fetal tissue for research, gave Daleiden the password to her StemExpress email account after she stopped working there. Daleiden accessed her email and downloaded every single message to his laptop’s hard drive.

Matthew Strugar, a First Amendment attorney in Los Angeles who is not affiliated with the case, said Hite had correctly held that the First Amendment doesn’t permit journalists to break the law. “Journalists cannot, for instance, break into someone’s house while pursuing a lead, or run a red light to get to a breaking story,” Strugar told Rewire.News.

But Strugar said the case could have repercussions for legitimate undercover work.

“The threat of this prosecution is in the threat of finding that undercover investigations and recording in place where people could generally overhear your conversation, or in blurring the line so much that journalists or investigators won’t ever record because the threat of prosecution could wax and wane from second to second,” Strugar told Rewire.News.

Melanie Newman, a spokesperson for Planned Parenthood Federation of America, said in a statement that Daleiden and Merritt should face the legal consequences of their “multiyear illegal effort to manufacture a fake smear campaign against Planned Parenthood.”

“They broke the law to try and prevent Planned Parenthood from serving the patients who depend on us and to advance their goal of banning safe, legal abortion in this country. We’re looking forward to justice being served,” Newman said.

Hite has not indicated when he will rule.