Free Speech on Trial


September 28, 2017 3:47PM

Years ago when undercover videos of Planned Parenthood first surfaced about the only thing about everyone agreed on was to argue about it. The now infamous videos showed Planned Parenthood meeting with undercover members an anti-abortion group that had its people pose as biotechnology company representatives in order to gain access to Planned Parenthood’s employees and facilities. People felt strongly about what those videos depicted. Not surprising, because abortion is an issue people feel strongly about.

But after a judge in California issued a gag order that prohibited the release of these videos, this case about something more than abortion. It became a free speech matter.

The judge initially ruled that he was not violating the free speech rights of the filmmaker because the person used “deceit” (he was undercover and used a fake identity) to obtain the information and those who heard the speech might respond violently.

This reasoning erodes critical First Amendment terrain best not lost. The right to speak also includes the right to hear. This isn’t just about the filmmaker.  It seems beyond debate that there was a strong public interest in these videos. Abortion is a topic of particular public concern and, thus, information — especially about potentially criminal activity (remember, that was what the footage claimed to uncover) — is vital to the public debate.

We joined a request with several other southeastern organizations asking the Supreme Court to take up the case. Censorship is never acceptable because someone might react violently in response, except in the limited circumstances of actual incitement or fighting words. If anything, the inflamed passions in response are precisely why this information ought to be in the public realm.

The ramifications of the reasoning extend far and wide. If information obtained by deceit is not First Amendment protected then consider the examples discussed in the brief of the sorts of speech that would now be unprotected:

  • Environmental groups who want to record executives making comments indicating their knowledge of a public hazard;
  • Reporters who surreptitiously record white nationalists vowing to retaliate for the destruction of monuments by desecrating monuments of civil rights heroes.

This information deserves to be in the marketplace of ideas. Never once amid the entire scandal surrounding illicitly obtained emails during the recent presidential campaign did anyone suggest keeping this information from the public would have been an appropriate response. As stated in the brief, “our public discourse has always accommodated the free flow of ideas and information, irrespective of the passions those ideas and information arouse….”

We can handle it. The First Amendment is worth it.

The brief is here.