On Tuesday Harris County released the surprise indictments against two anti-abortion activists who lied their way into a Houston Planned Parenthood facility last year (curiously, the documents were posted to the district clerk’s website Monday night but then disappeared). As expected, charges of tampering with a government document, a second-degree felony, against both David Daleiden and Sandra Merritt stem from their using fake California driver’s licenses to dupe local Planned Parenthood staff.
The second charge against Daleiden oddly enough mirrors his group’s allegations against Planned Parenthood. While Daleiden and the Center for Medical Progress claim their undercover footage proves Planned Parenthood attempted to sell fetal tissue (experts say it doesn’t), a local grand jury has charged Daleiden with “unlawfully, intentionally and knowingly offer[ing] to buy human organs, namely, fetal tissue, for valuable consideration.”
So, a law enforcement investigation explicitly targeting Planned Parenthood ends in criminal charges against the radical anti-abortion activists whose actions triggered that investigation in the first place. And, on top of that, one of those activists is charged with the very crime they’ve accused Planned Parenthood of committing?
Pause and reflect...
The indictments follow a federal racketeering lawsuit Planned Parenthood filed in California earlier this month naming CMP and the activists charged in Harris County this week as defendants. Attorneys for the group argue their actions were covered by First Amendment protections for free speech and expression, and following the indictments, CMP posted a statement on its website calling Daleiden and Merritt’s actions “the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press.”
As we’ve pointed out before, that could be a difficult argument for them to make in court. Notwithstanding the flawed notion that using a fake ID is standard practice in investigative journalism (it is not), the courts have ruled that reporters who lie to gain access (say, like lying on a job application to gain access to a facility) can be held liable for trespassing and aren’t protected by the First Amendment.
As for the criminal charges, Charles “Rocky” Rhodes, who teaches constitutional law at South Texas College of Law, told us: “The First Amendment doesn’t give you license to violate criminal laws that are not targeted at expression.” In fact, in a recent law review article, Rhodes even used the fake-ID scenario as an example of the type of activity not protected by the First Amendment.
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While Rhodes says those felony fake-ID charges are likely to stick, the charge that Daleiden offered to buy fetal tissue, a Class A misdemeanor, will probably be the easiest of the two to defend against, considering Daleiden’s intention clearly wasn’t to actually buy fetal tissue (rather, he was trying to catch Planned Parenthood staff offering to sell it). Still, attorneys representing the activists call them “whistleblowers” and say all charges should be tossed.
“We don’t punish whistleblowers in cases like these,” said Peter Breen, special counsel with the Thomas More Foundation, a legal aid group representing the activists that has in the past defended anti-abortion groups in court.
Breen pointed us to the section of the Texas penal code that deals with the fake ID charges against Daleiden and Merritt. It reads: “It is a defense to prosecution…that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.” In a phone interview Tuesday evening, Breen argued that in this case, no government purpose was violated and therefore no crime was committed.
Evidently, according to Breen anyway, if undercover activists gain access to a private medical facility using fake IDs, the government shouldn't be concerned — at least so long as that facility belongs to Planned Parenthood.