The controversy last year over secretly recorded video taken of Planned Parenthood employees has turned into a bigger controversy over the First Amendment rights of journalists.
After losing the attempt to bring federal charges against the anti-abortion group Center for Medical Progress, Planned Parenthood and certain state lawmakers are going for the nuclear option known as Assembly Bill 1671.
Courthouse News reports:
“The bill would criminalize publishing undercover video footage of “health care providers” and subject third parties, including journalists, to penalties for reporting and distributing the illegally recorded footage.
Under AB 1671, a journalist receiving and posting footage from an anonymous source could be punished by the state as well as be opened up to potential civil lawsuits. Whistleblowers would not be exempt from the proposal either, regardless of how they obtained the illegal footage.
First-time offenders could be fined up to $2,500 while repeat offenders could face up to a year in prison.”
Regardless of one’s stance on abortion, this proposed law is not a solution for anything, and would represent a politically-motivated evisceration of free speech rights. Such a law could and would be used to silence investigative journalism on many fronts beyond the issue of abortion.
When the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF) and the California Newspaper Publisher’s Association (CNPA) are in opposition to the bill, it’s time to take a step back.
The EFF points out that the issue represents a collision of two fundamental rights – the right to privacy and the right to free press.
“When these two rights come into conflict, it’s important that we write laws with a scalpel,” said Adam Schwartz. “The EFF is opposed because we think that it could be applied to punish a journalist who had nothing to do with making an unlawful recording.”
Recording a private conversation without the consent of both parties is already illegal in California, and the Supreme Court has established a precedent from a 2001 ruling supporting First Amendment rights in a case involving illegal recordings.
Even the California Department of Finance, which testified in opposition to the bill, noted that the undercover filming of health care providers is not common enough to warrant a new law. The Senate Appropriations Committee said that the inevitable constitutional challenges to this bill “could result in potentially significant costs associated with litigation, both to the court and to the Attorney General.”
The CNPA is trying to work with Planned Parenthood to reduce the scope of the bill, but have not succeeded in protecting third parties, including journalists who would inadvertently be punished under the bill. As it stands now, even a journo who simply receives a copy of a recording and passes it on to their superiors could be criminalized.
“A person aids and abets the commission of an offense when he or she, with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, facilitating, or encouraging the commission of the offense, by act or advice, aids, promotes, encourages, or instigates the commission of the offense,” the proposal states.
In fact, Planned Parenthood wants the bill to go further, and explicitly punish third parties for spreading “confidential communication.”
They point to the spike in threats of violence since the 2015 recordings went viral, and the shooting spree at a Colorado Springs abortion clinic which killed three people. However, these irrational acts are no justification for having the state threaten free speech as a whole and journalistic integrity.
“The same rationale for punishing communications of some preferred professions or industries could as easily be applied to other communications [such as] law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry and religious sects,” ACLU legislative director Kevin Baker wrote in an opposition letter sent to [Assemblyman Jimmy] Gomez.
The ACLU and other opponents of the bill agree that the undercover videos taken by Center for Medical Progress were underhanded and unethical, but the backlash being mounted by Planned Parenthood and their allies in the California legislature poses a much bigger problem.
Imagine for a moment that this bill was in effect last year when the planned parenthood videos began to break. Just about every media outlet in the world, including the Free Thought Project, reported on them. Under this new law, all of that would have been criminal behavior.
“When you put media into the position where it has to assert its rights and protect itself, they are already losing,” said Nikki Moore, legal counsel for CNPA. “Those are fights that are extensive but very important.”
Assembly Bill 1671 represents a chilling threat to free speech and decades of hard-won journalistic freedom. If this Orwellian legislation passes, First Amendment challenges will be swift and furious.