51 F.4th 1125
9th Cir.2022Background
- David Daleiden and others formed the Center for Medical Progress (CMP) and created a fictitious tissue‑procurement company, BioMax, using aliases and fake driver’s licenses to establish credentials.
- BioMax personnel infiltrated National Abortion Federation (NAF) and Planned Parenthood conferences as exhibitors, signed confidentiality agreements prohibiting recording, and secretly recorded staff at conferences, lunches, and clinic visits.
- Secret recordings included two lunch meetings with Planned Parenthood medical directors and covertly filmed clinic visits; CMP released edited videos online beginning July 14, 2015.
- The releases led to threats and harassment against recorded individuals; Planned Parenthood incurred security, monitoring, relocation, and conference‑hardening costs.
- Planned Parenthood sued (claims including civil RICO, federal and state wiretap violations, trespass, fraud, breach of contract); a jury found for plaintiffs and awarded compensatory, statutory, and punitive damages (total ~ $2.4M) and limited injunctive relief.
- On appeal defendants challenged (1) whether the First Amendment bars the compensatory damages and (2) whether Federal Wiretap Act liability under 18 U.S.C. § 2511(2)(d) was established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Amendment bars compensatory damages for defendants who surreptitiously recorded and infiltrated | Damages reimburse economic losses from illegal infiltration and security costs; defendants violated generally applicable laws so damages are permissible | Journalism/newsgathering protected; awarding damages for truthful publication and newsgathering violates First Amendment | Affirmed — general laws apply to journalists; economic (infiltration/security) damages are not barred (Cohen/Wasden/Dietemann) |
| Whether the damages are impermissible publication damages under Hustler (i.e., reputational/emotional harm requiring actual malice) | Damages are economic and preventative (would be incurred irrespective of publication) | Damages are tied to publication and thus barred absent actual malice | Affirmed — damages were economic and remedial, not reputational/emotional publication damages; Cohen permits economic recovery |
| Whether civil RICO (and the goal to harm Planned Parenthood) supplies the independent criminal or tortious purpose required by 18 U.S.C. § 2511(2)(d) to strip the party‑recording exception | Recordings were made to further a RICO enterprise aiming to harm/eradicate Planned Parenthood, so purpose was criminal/tortious | RICO purpose is not an independent purpose separate from the recording itself; recording must be made with a separate, independent criminal/tortious purpose | Reversed — RICO‑based purpose is not sufficiently independent; § 2511(2)(d) requires a separate criminal/tortious purpose at time of recording, so Wiretap Act statutory damages vacated |
Key Cases Cited
- Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (press has no special immunity from generally applicable laws; economic damages can be recovered)
- Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (journalists must obey generally applicable laws; distinguishes content‑based/overbroad restrictions)
- Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) (First Amendment does not license trespass or secret recordings)
- Sussman v. Am. Broad. Cos., Inc., 186 F.3d 1200 (9th Cir. 1999) (Wiretap Act requires an independent criminal or tortious purpose separate from the recording)
- United States v. McTiernan, 695 F.3d 882 (9th Cir. 2012) (independent purpose must directly facilitate criminal conduct)
- Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010) (temporal requirement: intent to use recording unlawfully must exist at time of recording)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (publication recovery for emotional distress or reputational harm by public figures requires falsity and actual malice)
- Abcarian v. Levine, 972 F.3d 1019 (9th Cir. 2020) (elements required to state a civil RICO claim)