California Aborting Free-Speech Rights
Steven Greenhut
by

Sacramento

In signing a bill that criminalizes the distribution of a “confidential” video of a “health-care provider,” Gov. Jerry Brown has at least dispensed with the notion that California’s Democratic leadership cares at all about free-speech rights. The new law, which could lead to jail time for violators, is the latest troubling example of how tenuous America’s political rights may be when one political party controls virtually every apparatus of power.

Assembly Bill 1671 is a direct response to an activist group that last year released disturbing undercover videos of Planned Parenthood officials who were, according to a July 2015 report in the Washington Post, “discussing in graphic detail how to abort a fetus to preserve its organs for medical research — as well as the costs associated with sharing that tissue with scientists.”

Planned Parenthood’s defenders claim the video was “doctored” and deny any illegal profit-seeking, but it’s clear why abortion’s defenders would like to put the kibosh on video recordings that discuss this gruesome business in anything but euphemistic terms.

Americans might favor “choice” and shrug at talk of “fetal tissue,” but they might be disgusted by a video that shows a Planned Parenthood official, while munching on a salad, apparently saying, “We’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part, I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”

After the video’s release, California Attorney General Kamala Harris, our likely next U.S. senator, rebuked Republican legislators’ calls to look into Planned Parenthood’s practices. However, she quickly launched an investigation of the Center for Medical Progress to see if the pro-life activists broke any laws in their recordings, after Democratic members of Congress urged her to do so.

Using a Public Records Act request, the Washington Times recently found that “Officials from… Harris’ office and Planned Parenthood collaborated to draft legislation targeting the pro-life activist whose undercover videos showed officials for the nation’s largest abortion provider discussing the sale of fetal body parts.” I’ve previously referred to Harris facetiously as “Planned Parenthood’s California Counsel.”

The resulting law was so awful it warranted opposition from the “pro-choice” American Civil Liberties Union and the Los Angeles Times’ liberal-leaning editorial board. The latter noted it is already illegal to record people without permission, but this bill “ups the ante by making it illegal for the eavesdropper to disclose or distribute… what that person heard or recorded, if the victim is any type of healthcare provider.” That would outlaw “not just sensitive details about patients, but also private conversations about fees and billing practices, drug marketers, or plans for the weekend. Why a healthcare provider merits special protection… is mystifying.”

The legislation was later amended to assure only those who make the recordings — and not reporters and others who receive them — are prosecuted, thus reducing opposition from newspaper publishers. But the law still amounts to criminalization of a type of investigative journalism and whistleblowers. In the new media world, why aren’t those who make the recordings considered journalists? Journalism is an act (reporting, investigating, etc.), not a cartel (e.g., credentialed media working for newspapers or TV stations). The lateness of those amendments speaks to the majority’s hostility toward the First Amendment, given the original bill could have criminalized reporters who received the information.

The targeted pro-life activists said in news reports the new law is inapplicable to their work, which they say did not involve confidential discussions. Meanwhile, a Planned Parenthood official made a chilling anti-speech argument to the Post: “With the Internet and the tremendous wildfire nature in which news can be spread now through social media, we need to have a crime against distribution by those in particular who did the illegal recording.”

Even the bill analysis reveals the ideological nature of this effort. Amendments “added the crime of human trafficking to the exemption for recording communications of obtaining evidence when he or she believes the communication relates to the commission of a crime.” Human-trafficking is a recent cause du jour of the Left (and I agree it’s a serious problem). So it’s legal to uncover certain alleged forms of law breaking, but not others. The government will decide.

California’s governor and legislators clearly want to stop embarrassing reporting on a taxpayer-supported organization that provides “services” that remain a contentious matter of political debate. It’s shocking, actually, given the First Amendment is about protecting political speech. Such efforts have become increasingly common. That’s especially true when it comes to abortion, which at the current rate may be the last “constitutional” right left in California.

Last week, the federal 9th Circuit Court of Appeal upheld Assembly Bill 775. Gov. Brown signed the so-called “Reproductive FACT Act” last year. It forces private pro-life counseling centers that help pregnant women carry their unborn children to term to also provide information on how to obtain an abortion. Organizations that exist primarily to help stop abortions now have to provide information that goes against their core principles.

According to the author statement in bill analysis, “Because family planning and pregnancy decisions are time sensitive, California women should receive information that helps them make decisions and access financial support at the site where they seek care.” No one is stopping these women from getting all sorts of information — but this law forces some politically un-favored people to provide information they don’t want to give.

Abortion is one of the few areas in which the California Legislature favors deregulation. In recent years it allowed non-doctors to provide abortions and reduced building regulations for abortion clinics. That’s hypocritical given the Legislature generally wants to further regulate the medical profession and seems relentless about boosting building standards, but at least those efforts are within their legitimate purview and don’t curtail anyone’s speech.

But this anti-speech tendency is expanding beyond abortion. As I wrote in the Spectator in June, California legislators had proposed a first-in-the-nation bill (Senate Bill 1161) that would have allowed lawsuits and state legal action against think tanks and businesses that “have disseminated misinformation about anthropogenic-induced climate change.”

Legislators knew they couldn’t directly take on the First Amendment, so instead they used California’s Unfair Competition Law as the vehicle to shut down such “misinformation.” The measure failed, but it’s appalling how far it moved along. Violators wouldn’t be jailed, but they could face something potentially worse — bankruptcy-inducing lawsuits. And what exactly is climate-change “misinformation”? Reasonable people have serious disagreements over the nature of climate change — and over the best policy approach toward dealing with it. If the bill had passed, the government would essentially decide the proper and improper parameters of discussion.

These bills are a sign of things to come. The state’s leadership has shown itself more than willing to sue, fine, and even jail dissenters on issues that its leadership holds dear. And the latest federal court decision upholding the “FACT” act is a reminder the courts won’t necessarily be the Constitution’s last line of defense. Commentators accused Donald Trump of trying to criminalize politics when he said he would hire a special prosecutor to investigate Hillary Clinton if he becomes president. But here in California, such criminalization is well under way.

Steven Greenhut
Steven Greenhut
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Steven Greenhut is a senior fellow and Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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