Why prosecuting the makers of the Planned Parenthood sting videos sets a dangerous precedent

In 2015, a group called the Center for Medical Progress published a series of undercover videos on Planned Parenthood. The videos showed the two filmmakers, David Daleiden and Sandra Merritt, who had posed as representatives of a fake biotechnology company, discussing fetal tissue with Planned Parenthood officials. When the videos were released, Planned Parenthood said they had been deceptively edited by the Center for Medical Progress. But many abortion opponents, myself included, believe the videos proved that Planned Parenthood engaged in the little-known practice of harvesting aborted fetal tissues and illegally selling them to laboratories for profit. Some sort of punishment was surely in order for Planned Parenthood ... right?

That's not what happened.

Planned Parenthood has been mostly cleared. And last year, it was Daleiden and Merritt who were indicted by a Texas grand jury on felony counts of using fake driver's licenses in the course of their work. Daleiden was also indicted for trying to purchase human organs, the very behavior that he sought to expose. The charges were eventually dropped.

Then, yesterday, Daleiden and Merritt were charged in California with 15 felonies. California prosecutors said that by filming 14 people without their consent, the filmmakers had invaded their privacy.

To say that this is outrageous is an understatement. To many pro-life conservatives, this is rather like if a journalist posed as a drug dealer to expose a drug kingpin, and the result was an indictment for the journalist and the kingpin getting off scot-free.

Were the CMP's videos politically motivated? Absolutely. The CMP says it is "a group of citizen journalists dedicated to monitoring and reporting on medical ethics and advances," but it is also undeniably an anti-abortion organization. That activist stance will cause many liberals to scoff at the very idea that the CMP could do anything resembling journalism. But don't forget, ideologically committed organizations have produced some of the best reporting in history. What's more, any reporting that seeks to unveil uncomfortable truths is by definition "political" in some sense.

The CMP is staffed by activists with political motivations. But they are still being prosecuted for doing the work of journalism. Of course they used fake driver's licenses, and of course they posed as people who wanted to buy fetal organs! That was their whole investigation. There's no grey area here. Many issues are complicated; this is not one of them.

Sunlight is the best disinfectant. As a Roman Catholic, if tomorrow an undercover video shows a bishop covering up corruption, I will be clapping with both hands and sharing it as wide as I can. Because as a Catholic, I believe in my Church's mission and want it to be accountable so it can perform that mission better.

Undercover journalism is in the best journalistic tradition. Journalists regard Nellie Bly as a hero of the profession for going undercover in an insane asylum to expose the depravity of the day's mental health-care system. 60 Minutes frequently does undercover journalism, as does Dateline. So did Hunter S. Thompson, another hero to many journalists. Embarking on serious undercover journalism will, by definition, almost always involve doing things that can be technically classified as illegal. To prosecute such behavior is a textbook case of "chilling effect," the legal and ethical concept that safeguards the First Amendment's protection of the natural right of free speech. This precedent is disastrous.

Where is the outraged editorial from The New York Times about the threat to freedom of speech and freedom of the press? Does democracy still "die in darkness"? After the election of Donald Trump, we were told that the press was the last vanguard against creeping authoritarianism, that all of a sudden what matters is no longer everyday partisan politics, but that we are in a battle between "truth" and "fake news" and "alternative facts." If those perorations have any meaning, then surely journalists and the media will stand with their fellow journalists, even ideological activist journalists, who have been prosecuted for doing their job. That's a principle journalists should stand behind, even if they disagree with the CMP's political and ideological motives.