Liberty Counsel asks Court to declare California recording law unconstitutional


WASHINGTON, D.C. — Liberty Counsel, in collaboration with Thomas More Society, LiMandri & Jonna, Dhillion Law Group, American Center for Law & Justice, and Life Legal Defense Foundation, filed a motion asking the Ninth Circuit Court of Appeals to declare that California’s recording law is unconstitutional as it did with a similar Oregon law, and reverse the district court’s decision in the civil cases of Sandra Merritt, David Daleiden, the Center for Medical Progress, Troy Newman, and Albin Rhomberg.

Merritt and David Daleiden, founder of Center for Medical Progress, released videos in 2015 following a 30-month undercover investigation exposing Planned Parenthood and other organ procurement companies regarding aborted baby body parts. The videos showed certain Planned Parenthood affiliated executives haggling over prices of aborted baby body parts and discussing how they change abortion procedures to obtain more intact organs. In October 2022, a three-member panel of the Ninth Circuit ruled against Merritt and Daleiden regarding numerous errors of the trial court, including the award to Planned Parenthood of “damages” involving legally recorded conversations without allowing the jury to hear those conversations, and without requiring Planned Parenthood to prove that the conversations recorded in public places were “confidential.”

However, in Project Veritas v. Schmidt, the Ninth Circuit recently ruled that Oregon’s ban on surreptitious recordings of conversations is a content-based restriction that violates the First Amendment right to free speech and is therefore invalid. The three-judge panel reversed the district court’s dismissal of a complaint challenging, as an unconstitutional restriction of protected speech, Section 165.540(1)(c) of the Oregon Revised Code, which generally prohibits unannounced recordings of conversations, subject to several exceptions. California’s current recording law is substantially similar to Oregon’s law that was struck down.

The U.S. Supreme Court declined to hear these cases. However, the invalidation of Oregon’s recording law occurred after the Ninth Circuit issued its opinion involving the Planned Parenthood litigation. This new development was not before the High Court.

Liberty Counsel Founder and Chairman Mat Staver said, “The recent decision in Project Veritas justifies reversing the previous unconstitutional judgment against Sandra Merritt and others arising from California’s recording law. Since much of the civil trial was premised on the so-called ‘illegal recording,’ a new trial is warranted for the remaining claims. This case is not over.”