Bad Law. Bad Prosecution. No Scandal.

Why the pro-life activists who secretly recorded Planned Parenthood officials aren’t martyrs.

From left, attorney Jared Woodfill speaks to the media alongside David Daleiden on Feb. 4, 2016, in Houston.

Eric Kayne/Getty Images

California Attorney General Xavier Becerra announced on Tuesday that the state has brought felony charges against David Robert Daleiden and Sandra Merritt for secretly recording private discussions. Daleiden and Merritt, anti-abortion activists and self-styled undercover journalists, interviewed officials from Planned Parenthood and an affiliated biomedical company called StemExpress LLC. The duo used fake names and driver’s licenses and pretended to represent a fictitious company. They recorded the conversations on hidden cameras and released them online in 2015, claiming they proved Planned Parenthood sold fetal tissue for profit. Thirteen states investigated but never brought charges; a Texas grand jury cleared Planned Parenthood of wrongdoing and instead indicted Daleiden and Merritt.

Predictably, the California indictment enraged anti-abortion activists, who view Daleiden and Merritt as truth-telling heroes. From National Review: “California Shamelessly Persecutes Pro-Life Journalists.” The Federalist: “California Wants To Imprison Pro-Lifers For Committing Journalism.” The Daily Wire: “TYRANNY.” On an emotional level, I understand this criticism. On a legal level, though, the uproar puzzles me. Daleiden and Merritt may have violated a criminal statute. The attorney general, who is tasked with bringing charges against likely lawbreakers, brought charges. If conservatives are upset, they should try to change California’s legal code or the First Amendment theories that limit its reach. But complaining about an attorney general enforcing the law isn’t going to do Daleiden and Merritt, or their movement, any good.

Let’s start with the statute in question. California is a “two-party consent” state: Under California Penal Code Section 632, no individual may record a “confidential communication” without the consent of all parties being recorded. A communication qualifies as “confidential” if it is made with the reasonable expectation that it would not be overheard or recorded. This stringent requirement reflects California’s robust protection of privacy; indeed, the right to privacy is an enumerated right under the state constitution.

Some of the conversations that Daleiden and Merritt secretly recorded occurred in secluded areas of mostly empty restaurants. Do these qualify as “confidential communications”? In National Review, David A. French argues that they do not, citing a 1999 state appeals court ruling with somewhat similar facts. But there’s a problem with this logic: The California Supreme Court explicitly considered and rejected that court’s argument in its definitive (and unanimous) 2002 interpretation of Section 632. In that decision, the state high court adopted a more expansive definition of a “confidential communication,” defining it as a conversation in which a participant has an “objectively reasonable expectation that the conversation is not being overheard or recorded.”

Do Daleiden and Merritt’s conversations fit this standard? My guess is that some do and some don’t. California charged the pair with 15 felonies, including one count for each conversation recorded in California. Discussions that took place at, for instance, a conference might not fall under Section 632. Discussions that occurred in the far corner of a restaurant are a more difficult call—one for a jury to make. Daleiden and Merritt have a constitutional right to a speedy and public trial by an impartial jury. They will have ample opportunity to argue that these conversations were not conducted under any reasonable expectation of privacy.

Do I believe that Section 632 is good policy? Absolutely not! Two-party consent statutes are unduly restrictive and archaic in the digital age. They chill expression and hinder journalism. Daleiden and Merritt may not be real journalists, but it’s easy to see how the laws they allegedly broke could be used to hamper actual investigative reporting. If I were a California legislator, I would vote to repeal this absurd statute and bring the state in line with the majority of U.S. jurisdictions, which have abandoned the two-party consent rule.

But conservatives haven’t launched a campaign against two-party consent laws. Instead, they’ve focused their ire on Becerra for bringing the charges in the first place, slamming the prosecution as partisan. I sympathize with the sentiment. But for better or for worse, state attorneys general are directly elected in 43 states, including California, most of them on a partisan platform. Becerra was appointed to succeed now-Sen. Kamala Harris, the Democrat who launched this investigation.

Republican attorneys general also launched investigations following the release of the videos, and those investigations predictably targeted Planned Parenthood instead of Daleiden and Merritt. The fact that these investigations didn’t turn up evidence to justify an indictment doesn’t mean they weren’t partisan. If Planned Parenthood had even come close to violating the law, these Republican attorneys general would’ve brought charges. Would that prosecution have been political, too? Of course. That’s just how our partisan system of law enforcement works.

But wait, Planned Parenthood’s opponents protest, we have a smoking gun: As a congressman, Becerra received (relatively small) campaign contributions from Planned Parenthood! I’m especially tickled by this charge not just because Planned Parenthood contributes to virtually all pro-choice House members, but because it clashes with the Republican orthodoxy on campaign contributions. In 2014’s McCutcheon v. FEC—a decision the Republican Party lobbied for—the Supreme Court informed us that an elected official acting upon the wishes of a big-money donor does not create “the appearance of corruption.” So, which is it? Is Becerra a corrupt tool of the “abortion lobby”? Or is he, to quote the court, simply being “cognizant of and responsive to … political speech”? I struggle to see how Republicans can deny the corrupting effect of unlimited campaign contributions while insisting that specific campaign contributions had a corrupting effect.

Speaking of the First Amendment: A final conservative line of attack against Becerra is that his prosecution infringes upon the constitutional guarantee of freedom of the press. If only! The Supreme Court held long ago that journalists engaged in newsgathering do not hold greater First Amendment rights than the general public. Courts have extended this principle to undercover investigative journalism, holding that the First Amendment does not protect journalists’ right to record potential misconduct in secret under false pretenses.

This line of cases began with a 5–4 decision in Branzburg v. Hayes split along mostly ideological grounds, with conservatives opposing special rights for reporters. University of California–Irvine School of Law Dean Erwin Chemerinsky finds these precedents disastrously misguided, and I agree. But unless conservatives wish to lobby for the reversal of these decisions, I don’t see how the First Amendment has much to do with Becerra’s prosecution.

I do not mean to suggest that Becerra’s decision to bring charges was wise or sound, because it isn’t. The prosecution strikes me as an obvious waste of public resources, and it will give Daleiden and Merritt—already martyrs to the right—a louder bullhorn. But Becerra has discretion to enforce the law as he chooses, and there is nothing scandalous or persecutory about how he has decided to go about that task. Claims of “tyranny” and intimations of corruption are preposterous. Conservatives should spend their energy fighting the bad law and misguided precedents that allowed this prosecution to occur in the first place. If they aren’t willing to do that, this isn’t really about principle at all—just a desire to let two abortion foes break the law with impunity.