The following comes from a January CNN article by Sherry F. Colb and Michael C. Dorf. Colb is professor of law and Charles Evans Hughes Scholar at Cornell University. Dorf is Robert S. Stevens Professor of Law at Cornell University. They are the co-authors of Beating Hearts: Abortion and Animal Rights.
A grand jury in Harris County, Texas, investigating whether Planned Parenthood officials broke the law by selling fetal body parts not only cleared the officials of wrongdoing, but also, in a stunning act of legal jujitsu, indicted two pro-life activists who created the video that led to the grand jury investigation in the first place.
We are pro-choice, and we support the important work of Planned Parenthood, but we find the prosecution of these citizen journalists, however self-styled, deeply disturbing.
It remains to be seen whether David Daleiden, director of the pro-life Center for Medical Progress, and Sandra Merritt, a center employee, have committed serious crimes. Because grand jury proceedings are secret, we do not yet know the precise nature of the evidence against them.
However, it appears the charges arise entirely out of their efforts to deceive Planned Parenthood officials in order to gain access. The felony charge of tampering with government records relates to their alleged use of false IDs, and the misdemeanor charge of attempting to buy fetal remains seemingly overlooks the fact that Daleiden and Merritt were only posing as buyers to expose what they believed was illegal conduct by others.
Whatever the precise facts of this case prove to be, the prosecution has broader implications, and not just for abortion and anti-abortion speech. Undercover exposés play a vital role in informing the American public of important facts that would otherwise remain hidden.
As a consequence, reporters can, and sometimes do, go to jail as the price of shielding their sources. The Planned Parenthood case reveals that activists — and journalists — might also have to go to prison for undercover reporting if they violate any laws to gain access to the targets of their investigation.
Consequently, the public fails to learn about some important matters. Whistleblower statutes provide a modicum of protection for insiders who expose wrongdoing, but the risks to career and reputation frequently prevent those in the know from coming forward.
Thus, the law can legitimately circumscribe undercover investigations. For example, the Center for Medical Progress could possibly be held civilly liable for misleading editing of the Planned Parenthood videos. But the criminal prosecution of Daleiden and Merritt, even if they did break the law, could chill undercover journalists and activists everywhere.