2016-01-17 – Let me say this upfront. I believe that Planned Parenthood does great work. I also believe that the folks who made the so-called baby-parts videos are self-righteous zealots who have no interest in the welfare of women or children. But I have some reservations about the Planned Parenthood lawsuit against these folks (Planned Parenthood Federation of America, Inc., et al., v. Center for Medical Progress, et al.).

Lawsuits can be pretty murky things. And press coverage of lawsuits are often pretty unhelpful. I took a look at the formal complaint in this lawsuit, which you can find here. Good luck reading it, if you choose to do so. Legal complaints are not known for compelling storytelling. If you can wade through the verbiage, you’re gonna come away feeling that the defendants (the video makers) are scummy people. I’m not sure you get a great picture of the plaintiffs (the Planned Parenthood folks) there than they want to be left alone.

What’s going to be difficult to extract from this document is what Planned Parenthood is hoping will happen next (there’s a laundry list of wishes) and whether the video makers have cause to be afraid. It’s easy to want to cheer on your team, but I’m talking about a realistic assessment of where this is going.

I’m actually disappointed in this lawsuit, from the Planned Parenthood side of things.

As I see it, there are two possible theories of this case. First is that the video makers got access through fraud. You’ll see that if you read the complaint. The second, is that the video makers intentionally edited their videos to falsely defame Planned Parenthood. If you read the complaint, you’ll see an awful lot about the fraud theory and relatively little about the defamation theory.

If you believe in a free press, this should worry you.

Liberals often cheer whistleblowers. Consider Edward Snowden. Consider undercover operations to expose Monsanto or animal abuse or police brutality or any number of nasty things. I’m not really in sympathy with efforts to suppress whistleblowing activity.

But if fraud is the theory of this case, a victory by Planned Parenthood would set a terrible precedent.

The better theory is intentionally false defamation.

Now, that phrase “intentionally false defamation” is a bit awkward. But I say it this way because the first amendment of the Constitution places heavy restrictions on defamation lawsuits. A free press often defames people, but over the years the courts have ruled that freedom of the press is more important than the right of public figures to be protected against defamation. To make a constitutional case for defamation, you have to allege more than that you’ve simply been defamed. You have to allege that the defaming statements are false. And they can’t be just mistakes. They can’t be accidentally false. They have to be intentionally false (or at least made with reckless disregard for the truth).

This lawsuit does contain allegations of intentional falseness as well as allegations of intent to harm Planned Parenthood.

I haven’t researched the law. Maybe this is the best Planned Parenthood could do given restrictions in the law. But I would have liked to see greater focus on the intentional falseness of the videos and less focus on the undercover nature of the defendants work in making the videos.

As I said at the beginning, I don’t think these defendants were up to any good. But I’m not too happy to see Planned Parenthood adopting the strategy that seems implicit in this lawsuit.

(Considering the physical risk to Planned Parenthood coming from these folks, I certainly understand the desire to shut down their access. But I think that this lawsuit doesn’t really attack that problem at all.)