The
California Attorney General just issued a criminal complaint against
two anti-abortion documentary journalists for their undercover videos
about Planned Parenthood activity concerning aborted baby parts. It may
be the liberal Attorney General assumes his highly selective choice to
only prosecute anti-abortion documentarians will allow journalists to
turn a blind eye to the extraordinary application of this law to
undercover reporting that is common-place in California.
Section 632 of the California Criminal code makes it a crime to
“intentionally” and “without the consent of all parties” record a
conversation if that conversation is a “confidential communication.” A
conversation is, by law, not confidential if there is not a reasonable
expectation it cannot be overheard. A conversation is, by law, not
confidential if it concerns certain kinds of criminal conduct —
colloquially known as the “extortion exemption” but also applicable to
other crimes, such as violent crimes against a person.
Under clear California law, the First Amendment protects the publishing
of any recording of public interest. Additionally, up until yesterday,
it was assumed the First Amendment prevented criminal prosecution for
news-gathering investigative undercover recordings in aid of First
Amendment activity. A California court already recognized the activity
of these two anti-abortion investigative journalists as First Amendment
protected activity when denying an injunction against their publishing
the results of the recordings.
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