A few hours after I posted the latest video from the Center for Medical Progress yesterday, Hot Air readers discovered that it had mysteriously disappeared. The cause of its elimination turns out to be not all that mysterious, and could land David Daleiden and his attorneys a contempt charge At issue is a prior gag order that Daleiden’s attorneys argued yesterday was overbroad:
A federal judge said Thursday he will consider holding the leader of an anti-abortion group in contempt after links to videos that the judge had barred from release appeared on the website of the man’s attorneys.
U.S. District Judge William Orrick ordered David Daleiden and his attorneys, Steve Cooley and Brentford J. Ferreira, to appear at a June 14 hearing to consider contempt sanctions. …
Orrick issued a preliminary injunction that blocked the release of videos made by the Center for Medical Progress at meetings of the National Abortion Federation, an association of abortion providers. He also blocked the release of any names of NAF members.
The National Abortion Federation argued releasing the videos and names would endanger their members.
Steve Cooley and Associates didn’t just take down the video. They also took down the names of the accusers from their website, even though their argument for publishing the names remains up:
Although David and Ms. Merritt had been very publicly accused of committing 15 felonies, their accusers were listed in the complaint as Does 1 through 14. An SCA request for the names of the Does was ignored and SCA filed a demurrer to the Complaint on May 3, 2017, at the time set for arraignment. …
On May 9, 2017, after the demurrer was filed, the Attorney General sent SCA a password protected list of Does 1 through 14 stating that the names were somehow confidential rather than amending the publicly filed complaint to publicly list David’s accusers. There is no protective order in place in state court that would protect the names of the Does and David is entitled to a public defense.
Of course, the removal of the names and the video doesn’t mean that both won’t be floating around the Internet. Orrick’s gag order was predicated on the potential for violence against the complainants, which is why he will likely issue a contempt order in three weeks. Frankly, at the time the CMP’s allies pushed the video yesterday, I wondered whether this would violate the order, and was not surprised late yesterday evening when readers first let me know it got pulled.
However, Cooley — himself a former district attorney — has a good point in this argument. To impose a prior restraint on speech, one should have to make a showing that the speech itself explicitly incites people to violence in an imminent manner, as per Brandenburg. Nothing in yesterday’s videos, or in any of the CMP videos, contains any such incitement, either explicit or implicit. The argument behind the gag order is that the undercover video of the complainants’ own words will be incitement enough because of the grotesque nature of their business and their commentary on it … such as the supposed laugh line about eyeballs and other body parts “rolling down into their laps.” That sounds more like an indictment of their business model than a need to suppress the videos, however. Also, the Orrick order leaves the field open for Planned Parenthood and the National Abortion Foundation to make public statements about the nature of those conversations to attack Daleiden, but no room for Daleiden to engage in a public defense.
The other argument for prior restraint would be that the videos expose legitimately confidential business practices discussed in private. That’s not the case here; the discussions took place in a public forum, even if Daleiden and his team used a ruse to gain entry to it, as investigative journalists often do. Even if that were the case, though, that would be a civil matter, and not a criminal prosecution from the Attorney General’s office.
Judges have broad powers to impose gag rules and temporary injunctions, so it’s not at all unlikely that a contempt charge will be sustained. Cooley and his team had to know that yesterday too, and it might just be that he’s looking for a fight on this point that could go all the way to the Supreme Court, perhaps as a hook to get the whole case thrown out, or to make the case politically toxic enough to get Xavier Bacerra to drop it. Stay tuned, and tune into a copy of the video on LiveLeak, via National Review.