A law applied selectively would probably best not be applied at all. A good prosecutor would already understand that.
Xavier Becerra, the attorney general of California and a former Democratic member of Congress, has decided to throw the book at David Daleiden, founder of the Center for Medical Progress, and Sandra Merritt, a C.M.P. associate. Mr. Daleiden and Ms. Merritt are the controversial investigators and producers of undercover videos that captured Planned Parenthood officials cavalierly bargaining over baby parts two years ago.
The attorney general’s office maintains that the C.M.P. undercover investigators invaded the privacy of 14 medical providers by filming them without consent. With the addition of a conspiracy charge, the two C.M.P. representatives face a 15 count felony indictment.
Many commentators have already pointed out a disturbing and obvious double standard at work here. Animal rights activists, for example, who have similarly used subterfuge to connect with exposé targets and have not sought permission for video recording—that’s the undercover part after all—have not been subject to the same scrutiny as Mr. Daleiden and Ms. Merritt. In fact, most would argue that journalists who uncover instances of abuses like torture or other forms of violence are heroes, not criminals.
Criticizing C.M.P.’s tactics and methods as outside the norms of journalistic practice may be fair. There are also questions to be raised about whether or not, on balance, the approach they chose serves the larger goal of helping people recognize unborn life as worthy of respect. But these failures do not justify criminal prosecution. The videos have drawn back the curtain on a gruesome procedure that most people do not want to spend too much time thinking about—the dismemberment and destruction of human life that is sometimes on the edge or just beyond the viability threshold.
There are many reasons to object to the attorney general’s decision to indict and the severity of the charges his office has issued—primarily that the multiple indictments appear to be the result of an ideological bias, not necessarily balanced prosecutorial judgment. But journalists should be especially outraged by the indictments, whatever they think of C.M.P.’s methods or aims. The indictments continue a decisive weakening of press freedom already under way in California.
Mr. Becerra’s predecessor, Senator Kamala Harris, Democrat of California, who initiated the investigation against Mr. Daleiden and Ms. Merritt, collaborated with Planned Parenthood officials last year to craft a new state law that seems explicitly targeted against C.M.P.’s undercover operations but will have a dampening effect on all such efforts. So far, unfortunately, reaction in the mainstream press to the C.M.P. prosecution has been oddly muted.
An editorial in the Los Angeles Times on March 30 bucks that trend by deploring the attorney general’s actions as an instance of prosecutorial overreach. It calls the indictments “disturbingly aggressive,” arguing that it was unnecessary for the attorney general “to apply this criminal statute to people who were trying to influence a contested issue of public policy.” The Los Angeles Times editors are no fans of the C.M.P., but they recognize the importance of pushing back against prior restraints on journalists who are reporting on controversial matters in the public interest.