The U.S. Court of Appeals for the Ninth Circuit again heard oral arguments on December 10, 2018, in Jane Does 1-10, et al v. David Daleiden, et al, a case that pits investigative journalist David Daleiden’s right to see public records under Washington State’s Public Records Act against a group of University of Washington research lab employees and abortion facility personnel who want their involvement in research using aborted baby body parts to remain secret.
Government employees and abortion personnel have gone to court to force heavy redactions to the public documents. However, that is contrary to the law, which says that those documents must be released because they detail their work procuring, processing, and transferring the organs and tissue of aborted babies in connection with the university’s large taxpayer-funded fetal tissue research program. Washington State’s Public Records Act requires full disclosure, but a lower court ordered the redactions, holding that the First Amendment required them.
A panel of the U.S. Court of Appeals for the Ninth Circuit reversed that decision, unanimously holding that the District Court had not provided the facts and law sufficient to make a “clear showing” that the U.S. Constitution requires the heavy censoring of these public records. The case returned to the District Court and is now, again, before the federal appeals court.
In what Circuit Judge M. Margaret McKeown called a “very interesting case,” she, along with Senior Circuit Court Judge A. Wallace Tashima and Circuit Judge Jacqueline H. Nguyen, heard Thomas More Society Special Counsel Peter Breen argue that, “This case has nothing to do with academic freedom or expression – the requested injunction in no way touches research,” and declare, “If this case did not arrive in the context of abortion – we wouldn’t be here.”
Daleiden is best known for his undercover video exposé of Planned Parenthood’s alleged involvement in aborted baby body parts trafficking. Breen stated that Daleiden is the only party in the case that is involved in advocacy protected by the First Amendment.
Breen said, “There is no indication of advocacy on behalf of the class filers (Jane Does 1-10, et al.), just a general claim, no specifics, and no evidence.”
Breen emphasized the significance of the case’s connection to research on fetal tissue obtained via abortion. “The fight over abortion has been going on for 50 years. The university employees claim that their First Amendment rights are being ‘chilled.’ Several of the Does have spoken publicly about their views on abortion. How can you say that you are being ‘chilled’ if you’ve put yourself out there in national media on the abortion issue?”
Breen added, “Facilitating fetal tissue donations is in no way an expressive activity, and is in no way a protected First Amendment activity.”
Of particular concern in this case, Breen explained, is the fact that the workers seeking to hide their identities are in taxpayer-funded jobs. “First Amendment privacy has never been used to cloak government workers on government time. Controversy is reason for sunlight, not for cloaking government activity.” He added that the State of Washington Supreme Court has repeatedly held that the First Amendment cannot be used to shield public records from disclosure. Breen noted that research is not a protected activity and that, even if it were, the taxpayer-funded employees are not asking to have research findings redacted. He also explained that the lawsuit is not seeking to obtain names or other personal identification, merely that job titles and assigned roles not be redacted.
Read the order issued August 14, 2017, by the United States Court of Appeals for the Ninth Circuit reversing the preliminary injunction and remanding Jane Does 1-10, et al v. David Daleiden, et al back to the United States District Court for the Western District of Washington 170814-Daleiden-WA-Ord-Reversing-Prelim-Injunction-dkt-113.
