Ninth Circuit Says Planned Parenthood Can Collect Damages for Surreptitious Recordings

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit last week ruled that Planned Parenthood could collect compensatory damages from an organization that used illegal means to infiltrate conferences and record Planned Parenthood staff without their consent. The ruling rebuffs the organization's argument that free speech protects against such damages, and reminds under the First Amendment, journalists are just like the rest of us.

The case, Planned Parenthood v. Newman, arose out of anti-choice activists' efforts to infiltrate conferences that Planned Parenthood attended or hosted and to surreptitiously record conversations with Planned Parenthood staff. Planned Parenthood sued for trespass, fraud, conspiracy, breach of contract, unlawful and fraudulent business practices, civil RICO, and various state and federal wiretapping laws. The district court ruled for Planned Parenthood and awarded statutory, compensatory, and punitive damages. The defendants appealed, arguing that compensatory damages violated the First Amendment.

The Ninth Circuit rejected the claim. The court said that even if the defendants were acting as journalists, they're bound by facially constitutional statutes that apply to everyone. In other words, the First Amendment applies the same to journalists; they don't get a free pass just because they're journalists.

[W]e repeat today that journalists must obey laws of general applicability. Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society. None of the laws Appellants violated was aimed specifically at journalists or those holding a particular viewpoint. The two categories of compensatory damages permitted by the district court, infiltration damages and security damages, were awarded by the jury to reimburse Planned Parenthood for losses caused by Appellants' violations of generally applicable laws.