Kelsey Bain 

“A lie can travel half way around the world while the truth is putting on its shoes.” -Mark Twain

In the summer and fall of 2015, the Center for Medical Progress (CMP, an anti-abortion organization, released several incriminating videos that implied Planned Parenthood was in the business of selling body parts from aborted fetuses for profit.[1] Planned Parenthood, a nonprofit organization, provides reproductive health care and sex education to people in the United States and around the globe.[2] Fetal tissue donations, like those performed by Planned Parenthood, are completely legal[3], and done with the consent of the mother.[4] Further, the fetal tissue harvested from aborted fetuses is used to study potential treatments for cancer, diabetes, and birth defects, and is used in the actual treatment of Parkinson’s disease.[5]

In the years leading up to the release of these videos, the head of CMP, David Daleiden, created a fake company named Biomax Procurement Services in order to deceive Planned Parenthood employees into attending joint meetings. One of these videos released by CMP was originally over two hours long but the CMP video that spread like wildfire on the internet was a heavily edited eight-minute version. The video implied that Planned Parenthood profits from the abortions it provides. However, the full version of the video shows Planned Parenthood representatives stating several times that they make no profits from the donated fetal tissue.[9]

Several states and the federal government have initiated investigations into the allegations against Planned Parenthood, but so far the organization has been cleared of any wrongdoing.[10] In spite of this, Planned Parenthood has faced significant political, financial, and social backlash since the release of these videos. The House of Representatives took away $255 million in federal funding for one year,[11] and since August there have been four arson attacks against Planned Parenthood clinics across the country.[12] Further, in October a vandal broke in and, with a hatchet, caused extensive damage to a Planned Parenthood clinic in New Hampshire.[13]

All of this raises the question: Are there steps that Planned Parenthood can take to hold the Center for Medical Progress accountable for their actions? In the age of the Internet, can organizations that release such destructive and false media to the public be held responsible, or are they acting within their First Amendment rights?

Defamation is a promising cause of action for Planned Parenthood against CMP. A defamation suit requires damage to one’s reputation. Clearly, CMP released these videos in an attempt to ruin Planned Parenthoods credibility, and in some ways they have succeeded. Internet defamation is a delicate new area of the law, and various jurisdictions treat it differently.[15] But still, CMP may find refuge within the First Amendment, and maintain that their videos fall within their right to free speech. To overcome this, Planned Parenthood may have to prove that CMP demonstrated a reckless disregard for the truth. In my note, I argue that Planned Parenthood will be able to overcome any defenses, including First Amendment issues that CMP may raise.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1]The Ctr. for Med. Progress, Planned Parenthood Uses Partial-Birth Abortions to sell Baby Parts, YouTube (July 14, 2015), https://www.youtube.com/watch?v=jjxwVuozMnU; The Ctr. for Med. Progress, Second Planned Parenthood Senior Executive Haggles Over Baby Parts Prices, Changes Abortion Methods, YouTube (Jul. 21, 2015), https://www.youtube.com/watch?v=MjCs_gvImyw; The Ctr. for Med. Progress, Planned Parenthood VP Says Fetuses May Come Out Intact, Agrees Payments Specific to the Specimen, YouTube (Jul. 30, 2015), https://www.youtube.com/watch?v=GWQuZMvcFA8; The Ctr. for Med. Progress, Intact Fetuses “Just a Matter of Line Items” For Planned Parenthood TC Mega-Center, YouTube (Aug. 4, 2015), https://www.youtube.com/watch?v=egGUEvY7CEg; The Ctr. for Med. Progress, Planned Parenthood Baby Parts Buyer StemExpress Wants “Another 50 Livers/Week,” YouTube (Aug. 25, 2015), https://www.youtube.com/watch?v=cz1gRNPgMvE; The Ctr. for Med. Progress, Top Planned Parenthood Exec: Baby Parts Sales “A Valid Exchange,” Can Make “A Fair Amount of Income,” YouTube (Sept. 15, 2015), https://www.youtube.com/watch?v=c9EU_02c5bM; The Ctr. for Med. Progress, Planned Parenthood Baby Parts Vendor ABR Pays Off Clinics, Intact Fetuses “Just Fell Out,” YouTube (Sept. 1, 2015),  https://www.youtube.com/watch?v=ndJMawjoyPc.

[2] Who We Are, Planned Parenthood Fed’n Am. Inc., https://www.plannedparenthood.org/about-us/who-we-are (last visited Oct. 18, 2015).

[3] National Institutes of Health Revitalization Act, Pub. L. 103-43, 107 Stat 122 (1993).

[4] Will Cabaniss & Joshua Gillin, PolitiFact Sheet: 8 Things to Know About the Planned Parenthood Controversy, PolitiFact.com (Aug. 5, 2015), http://www.politifact.com/truth-o-meter/article/2015/aug/05/politifact-sheet-8-things-know-about-plan-national/.

[5] Jennifer Gerson Uffalussy, Understanding Fetal Tissue Donation- and Why It’s Such a Divisive Topic, Yahoo.com (Sept. 18, 2015), https://www.yahoo.com/health/understanding-fetal-tissue-donation-and-124774483227.html.

[6] The Editorial Board, The Campaign of Deception Against Planned Parenthood, N.Y. Times (Jul. 22, 2015), http://www.nytimes.com/2015/07/22/opinion/the-campaign-of-deception-against-planned-parenthood.html?_r=0.

[7]The Ctr. for Med. Progress, FULL FOOTAGE: Planned Parenthood Uses Partial-Birth Abortions to Sell Baby Parts, YouTube (July 14, 2015), https://www.youtube.com/watch?v=H4UjIM9B9KQ.

[8] Supra note 1.

[9] Id.

[10] Tara Culp-Ressler, Planned Parenthood’s Activities are Completely Legal, and Republicans are Proving It, ThinkProgress.org (Sept. 30, 2015, 11:04 AM), http://thinkprogress.org/health/2015/09/30/3707229/planned-parenthood-state-investigations/.

[11] Bill Chappell, House Approves Bill to Cease Funding Planned Parenthood, NPR.org (Sept.18, 2015), http://www.npr.org/sections/thetwo-way/2015/09/18/441497807/house-approves-bill-to-cease-funding-planned-parenthood.

[12] Olivia Kittel, The Violent Repercussions of Conservative Media’s Promotion of CMP’s Deceptively-Edited Smear Videos, Media Matters for Am. (Oct. 9, 2015), http://mediamatters.org/blog/2015/10/09/the-violent-repercussions-of-conservative-media/206080; Scott Neuman, Fire at Washington State Planned Parenthood Clinic Deemed Arson, NPR.org (Sept. 5, 2015), http://www.npr.org/sections/thetwo-way/2015/09/05/437829915/fire-at-washington-state-planned-parenthood-clinic-fire-deemed-arson; Veronica Rocha and Brittny Mejia, Arson Investigation Underway at Planned Parenthood in Thousand Oaks, Los Angeles Times (Oct. 1, 2015), http://www.latimes.com/local/lanow/la-me-ln-suspicious-fire-planned-parenthood-20151001-story.html; Jessica Glenza, Alleged Arsons at Planned Parenthood Clinics Reported in Wake of ‘sting’ Videos, Guardian (Sept. 4, 2015), http://www.theguardian.com/us-news/2015/sep/04/planned-parenthood-arson-clinics.

[13] Dennis Carter, Vandal Attacks New Hampshire Planned Parenthood With Hatchet, RH Reality Check (Oct. 22, 2015), http://rhrealitycheck.org/article/2015/10/22/vandal-attacks-new-hampshire-planned-parenthood-hatchet/.

[14] Earl L. Kellet, Proof of injury to reputation as prerequisite to recovery of damages in defamation action— post-gertz cases, 36 A.L.R. 4th 807 (1985).

[15] Monique C.M. Leahy, Causes of Action for Internet Defamation, 32 Causes of Action 2d 281 (2006).

[16] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).