20 State Attorneys General Want Supreme Court to Lift Injunction on Undercover Abortion Convention Videos

Brnovich/Photo Credit: Gage Skidmore

WASHINGTON — 20 state attorneys general have joined a brief submitted to the U.S. Supreme Court that encourages the nine justices on the bench to hear a case surrounding a pro-life advocate who was banned from releasing video footage recorded undercover at National Abortion Federation (NAF) conventions.

“Amici attorneys general (and the justice system) will be harmed if the Ninth Circuit’s decision in this matter stands,” they wrote. “The decision sets a precedent that hampers law enforcement’s ability to effectively receive information and investigate possible civil or criminal wrongdoing.”

“As long as the injunction is in place, NAF can continue screening information and wielding influence over government investigations,” the attorneys general lamented.

As previously reported, the National Abortion Federation sued David Daleiden of the Center for Medical Progress in July 2015 to prevent footage recorded undercover at its 2014 and 2015 conventions from being made public, claiming that it could jeopardize the safety of its members.

U.S. District Court Judge William Orrick issued a preliminary injunction in February 2016 banning Daleiden from releasing any videos recorded at NAF’s annual conventions.

He noted that the Federation requires attendees to sign confidentiality agreements, promising not to disclose the contents of the event.

“Confidentiality agreements are common to protect trade secrets and other sensitive information, and individuals who sign such agreements are not free to ignore them because they think the public would be interested in the protected information,” Orrick wrote.

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Also opining that “the majority of the recordings lack much public interest,” Orrick said that the Federation’s rights to privacy and safety outweighed any public interest in the videos.

“Weighed against that public interest are NAF’s and its members’ legitimate interests in their rights to privacy, security, and association by maintaining the confidentiality of their presentations and conversations at NAF Annual Meetings. The balance is strongly in NAF’s favor,” he wrote.

Daleiden, who possesses hundreds of hours of footage, appealed to the Ninth Circuit, which upheld the ruling in March.

“Even assuming arguendo that the matters recorded are of public interest, however, the district court did not clearly err in finding that the defendants waived any First Amendment rights to disclose that information publicly by knowingly signing the agreements with NAF,” it wrote.

“Nor did the district court abuse its discretion in concluding that a balancing of the competing public interests favored preliminary enforcement of the confidentiality agreements, because one may not obtain information through fraud, promise to keep that information confidential, and then breach that promise in the name of the public interest,” the court said.

Daleiden consequently appealed to the U.S. Supreme Court last month, requesting that it hear his case. 20 state attorneys general have now filed a joint brief encouraging the court to take the case.

“The attorneys general support the First Amendment points raised by petitioners (and believe certiorari is warranted on those bases),” they wrote. “Within those broader issues, the Ninth Circuit’s decision specifically hampers law enforcement’s ability to effectively receive information and conduct initial investigatory steps into possible wrongdoing.”

“There are hundreds of hours of material petitioners may wish to disclose to law enforcement. And in response to subpoenas from Arizona and Louisiana, petitioners have identified at least 47 hours of video and 100 hours of audio as being responsive, including contextual information necessary for the material to be sufficiently meaningful,” the attorneys general explained.

“Yet NAF has embargoed almost all of this material, refusing to consent to petitioners’ disclosure of responsive materials except for snippets of materials. NAF is thus blocking state investigatory efforts by imposing its own relevance and responsiveness standard on law-enforcement subpoenas issued to a third party.”

Mark Brnovich, the attorney general of Arizona, led the brief, with attorneys general Steve Marshall of Alabama, Ken Paxton of Texas, Timothy Fox of Montana, Michael DeWine of Ohio, Christopher Carr of Georgia, Patrick Morrissey of West Virginia, Adam Paul Laxalt of Nevada, Wayne Stenehjen of North Dakota and Brad Schimel of Wisconsin joining in the filing.

Read the brief in full here.

As previously reported, Daleiden was found in contempt of court in July for releasing a “preview” of a longer NAF convention investigation in May, which featured clips of various Planned Parenthood officials and other abortion advocates making nonchalant statements about the abortion process, including that the baby’s eyeballs fell into their lap or that they had to tear off a leg to avoid technically performing a partial-birth abortion.

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