CMP Retains Harmeet Dhillon to Seek Release of Censored Videos at Ninth Circuit



David Daleiden and The Center for Medical Progress, responsible for the series of undercover videos exposing Planned Parenthood leaders callously negotiating the harvesting and sale of aborted baby body parts, have retained the accomplished San Francisco First Amendment lawyer Harmeet Dhillon to seek the repeal of a federal injunction censoring dozens of hours of unreleased undercover footage.

On Wednesday, Harmeet Dhillon helped file an expedited appeal at the Ninth Circuit, arguing for the total dissolution of Judge William Orrick III’s preliminary injunction against the videos, and for the speech-suppressing lawsuit brought by the Planned Parenthood-sponsored National Abortion Federation to be thrown out of federal court.

David Daleiden, CMP project lead, states:
“CMP’s videos caught Planned Parenthood’s leadership and business partners turning baby body parts into a cash crop, leading to a successful prosecution in southern California and an ongoing U.S. Department of Justice investigation. Now even the NIH and biotech researchers at the highest levels are divesting from the commercial exploitation of aborted baby parts. The facts prove Judge Orrick was wrong to suppress the undercover videos of Planned Parenthood’s illicit trade in baby body parts, and the only reason to do so was to cloak this barbaric industry from public and government scrutiny.”

Daleiden and CMP are also represented by the Freedom of Conscience Defense Fund (FCDF), the Thomas More Society, and Steve Cooley & Associates.

Harmeet Dhillon of Dhillon Law Group states:
“The fundamental First Amendment principles implicated by a multi-year gag order barring truthful speech about a matter of public interest cannot be overstated. While the plaintiffs in this case are free to personally attack, persecute in the courts, and even defame, our clients are gagged by an injunction not supported by law or fact, from defending themselves. We are confident that if the 9th Circuit examines the merits of these arguments, NAF and its members’ threadbare case should be dismissed from federal court altogether, or the injunction dissolved.”

Charles LiMandri of Freedom of Conscience Defense Fund (FCDF) notes:
“The National Abortion Federation is waging lawfare to destroy David. We hope the Ninth Circuit concludes that the First Amendment protects David’s right to shine a light on the billion-dollar abortion industry’s illegal selling of baby body parts.”

Peter Breen of the Thomas More Society states:
“The past three years of Congressional investigations and successful prosecutions definitively prove the truth and merit of David Daleiden’s undercover journalism project. There is no basis consistent with the First Amendment to conceal David’s videos from the public. It’s well past time that every American be allowed to see the full breadth of the abortion industry’s crimes committed in connection with the sales of baby body parts.”

Key Points:

    • CMP asked Judge Orrick to dissolve the injunction based on new facts disproving his prior findings and the use of the videos in the state criminal case superseding the injunction in the lawsuit, or to dismiss the NAF case entirely because of the lack of federal jurisdiction. Judge Orrick refused to consider the new facts or developments, and purported to order the state criminal court to follow his civil injunction on the videos.
    • Over the summer, NAF dropped all of its federal claims, leaving only a meritless state law dispute between California-based CMP and several California abortion providers and Planned Parenthood offices, and erasing federal jurisdiction over the case.
    • Three years ago, Judge Orrick blocked CMP’s undercover videos of discussions with Planned Parenthood leadership filmed at NAF’s annual meetings, based on NAF’s representation that CMP’s undercover work had not found any wrongdoing, and allegations that the videos placed NAF members under threat. In the past three years, Judge Orrick’s findings have been proven false.
    • Two Congressional investigations prompted by CMP’s videos confirmed serious wrongdoing and “systematic violations” in Planned Parenthood and NAF’s fetal body parts supply, yielding over a dozen criminal and regulatory referrals, now being investigated by the U.S. Department of Justice. A California District Attorney specifically credited CMP’s undercover work with prompting his successful prosecution of Planned Parenthood business partners the DaVinci companies for selling fetal tissue for profit, which the companies admitted in a $7.8 million settlement.
    • Planned Parenthood has admitted since the injunction was issued that CMP’s videos are not responsible for any violent threat to abortion providers, and NAF’s own statistics published since the injunction shows no increase in actual threats to NAF members attributable to the videos.
    • Since the injunction, the California Attorney General has brought a legally unsupported prosecution against David Daleiden based on the California video recording law, at the behest of Planned Parenthood and many NAF members. The undercover videos blocked by Judge Orrick are now key evidence in the criminal case.
    • Judge Orrick is an Obama appointee who previously helped found, fund, and operate a Planned Parenthood clinic in San Francisco. A separate motion from CMP is pending to remove Orrick from the case.


From the Appeal Filing:

“The passage of years has not cast this fundamentally flawed injunction in any better light; to the contrary, intervening developments have only highlighted its legal and factual deficiencies.”

“That the District Court refused even to engage in the reconsideration requested with good cause by Appellants constitutes an abuse of discretion warranting reversal. It is also more evidence of the District Court’s bias and the impossibility that Appellants can receive a fair hearing in the District Court.

“Three years later, NAF cannot legally or factually sustain the extraordinary prior restraint on Appellants’ speech, which should lead this Court to dissolve the preliminary injunction.”

“This lawsuit is the quintessential Strategic Lawsuit Against Public Participation: a well-funded abortion industry trade organization aggressively attacking a small group of critics who had the audacity to record and publish unflattering information about the unseemly, and illegal, activities of its members.”

“Having no actual federal claims nor any meritorious state ones, NAF is nevertheless pursuing this federal lawsuit against Appellants in the hopes of bullying them into forfeiting their First Amendment rights.

“The preliminary injunction is now obsolete because facts discovered since February 2016 have given the lie to the District Court’s findings regarding the likelihood of harm to NAF, while other intervening developments have shifted the balance of the various public interests sharply in Appellants’ favor.”

“The District Court’s refusal to give meaningful consideration to Appellants’ motion to dissolve the extraordinary indefinite prior restraint on their constitutionally-protected speech violated both the spirit and letter of the Constitution.

Congressional committees issued hundreds of pages of detailed reports consistent with CMP’s public videos showing extensive evidence of criminal, unlawful, and unethical acts by abortion providers and fetal tissue procurement companies. And those findings have yielded at least one successful prosecution of a pair of fetal tissue procurement companies so far.”

“The District Court’s refusal to credit decisive counterevidence to one of its factual findings was an abuse of discretion.”

“For the District Court to give weight to a heckler’s veto—i.e., for it to consider the prospect of harassment, threats, or violence from third parties completely unrelated to Appellants—in severing Appellants’ First Amendment rights was constitutionally illegitimate. See Santa Monica Nativity Scene Comm. v. City of Santa Monica, 784 F.3d 1286, 1292–93 (9th Cir. 2015); Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 788–90 (9th Cir. 2008); see ER490-91.”

“The District Court’s dismissiveness of Mr. Daleiden’s state criminal proceeding extends not only to the criminal defendant but also to his counsel and even to the state criminal court itself.”

“The District Court’s ostensibly deferential language is in fact laden with legal and factual determinations that the federal court expects the state court to make in light of the federal court’s injunction—and in clear violation of federalism principles.

“To characterize such obvious marching orders as something other than federal court interference in a state court proceeding is impossible.”


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