Planned Parenthood is under fire because of recently released videos showing senior officials seemingly stating prices the organization charges for selling fetal body parts. Pro-life lawmakers in Congress have seized on the videos as evidence of wrongdoing, while Planned Parenthood has responded that the impression created by the videos is false—a product of highly selective and misleading editing. Planned Parenthood claims—quite credibly—that its officials were not stating prices to be paid for illegal sales of fetal tissue but for legal defrayment of costs associated with collecting, storing, and transporting such tissue.
The Planned Parenthood videos may raise important questions of public policy regarding abortion, but I will put those matters aside here to focus on an issue that transcends the particular content of the videos. To what extent does defamation law provide a remedy for people who appear in deliberately misleading audiovisual recordings? Although Planned Parenthood officials have raised questions about whether the Center for Medical Progress (CMP)—the organization behind the videos—filed fraudulent corporate and tax information, there does not appear to be any current plan by Planned Parenthood officials to sue the makers or disseminators of the videos for defamation. But that could change, and even if it does not, the issue will likely recur as other self-appointed citizen-journalists post their work online.
Free Speech, Defamation, and Misleading Editing
Since the Supreme Court’s landmark 1964 ruling in New York Times v. Sullivan, state tort law of defamation has been limited by federal constitutional principles. Under New York Times and subsequent cases, a public official or public figure cannot recover for defamation for a merely false statement. The plaintiff must show that the defendant speaker acted with reckless disregard for the truth or worse. Nonetheless, the case law construing the First Amendment still permits core defamation cases to proceed. Deliberately false statements that damage the plaintiff’s reputation can give rise to liability.
What about selective editing? The Supreme Court case most closely on point is the 1991 ruling in Masson v. New Yorker Magazine, Inc. There Justice Kennedy wrote for the Court that the use of quotation marks around statements that the plaintiff did not literally say could be the basis for a successful libel action, so long as the requirements of New York Times were otherwise satisfied. He provided the hypothetical example of “a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.”
Does it matter whether the particular quotation is fabricated in its entirety or constructed by selective omissions? It is difficult to see why that distinction should matter.
Suppose Deirdre writes a newspaper article in which she quotes Peter as saying “I committed murder,” when in fact Peter told Deirdre “I never committed murder.” Deirdre should face the same liability as she would face if she wrote that Peter admitted to having committed murder or simply that Peter committed murder. In each case, there is a false statement that causes damage to Peter’s reputation. The deliberate omission of the word “never” is equivalent to a fabrication of the murder admission.
The Masson case involved print, rather than video, but that does not seem like a relevant distinction either. Where the video editing aims at giving the viewer the impression that the persons depicted in the video said something they did not say, it has the same effect as deliberately deceptive print editing. Indeed, the edited video may defame its target more effectively than print because it appears to be a simple record of past events.
Does Simultaneous Dissemination of the Unedited Video Render the Edited Video Protected?
There is, however, one important twist in the Planned Parenthood case. In addition to posting its misleadingly edited videos, CMP has also posted the full, unedited video. Thus, CMP and David Daleiden (the man chiefly behind the videos) could argue that the shorter, edited versions were not meant to mislead but simply to summarize.
Yet that argument should probably fail. For one thing, in addition to the edited and unedited videos, the CMP website contained the statement “Planned Parenthood Uses Partial-Birth Abortions to Sell Baby Parts.” That statement alone could be judged defamatory.
Moreover, even apart from the text, if one version of the video has been intentionally edited to give the false impression that Planned Parenthood sells baby parts (rather than receiving payments in partial defrayment of its costs), and if that video is defamatory standing alone, then the dissemination of the non-defamatory unedited version does not cancel out the defamatory video. To return to our schematic hypothetical example, if Deirdre publishes a defamatory statement that “Peter is a murderer” she cannot escape liability by also publishing a statement saying “Peter is not a murderer.” At most the non-defamatory statement might mitigate damages, as it could reduce the harm to Peter’s reputation.
Finally, traditional tort law recognizes liability for repetition of a defamatory statement. Even if the original posting of the unedited video alongside of the misleadingly edited version somehow eliminated liability for CMP, organizations and individuals who re-posted CMP’s edited video without also posting the unedited version could be liable for the harm caused by what they posted.
Free Speech Protection for Editing
Accordingly, it appears that CMP and other entities and persons could face liability for defamation based on the Planned Parenthood videos. Nonetheless, courts should generally proceed with great caution before finding liability for defamation based on misleading editing.
Although state tort law often provides a remedy for highly misleading as well as outright false statements, there are special dangers for freedom of expression when the misleading is accomplished via editing. Journalists would not be doing their job if they simply dumped all of their raw data into the public domain. Editorial discretion is essential to journalism. Deciding what to exclude from a story is often as important as deciding what to include.
Allowing courts to second-guess journalists’ editorial judgments about inclusion and exclusion would thus pose a grave risk of censorship. In reporting that Donald Trump questioned whether John McCain was a war hero, were journalists under an obligation to report in the same story that McCain had earlier criticized Trump for “fir[ing] up the crazies” with his comments on immigration? If they failed to do so, could they be said to have defamed Trump, by making him look like the sort of person who would launch an unprovoked attack on a war hero? Defamation liability for misleading by omitting context assumes that there is some neutral means of determining what counts as context, but that judgment itself is also an exercise of editorial discretion.
None of this is to say that selective editing could never be the basis for defamation liability. It is to say that courts ought to steer clear of close judgment calls. In the Planned Parenthood case, that might mean letting CMP and others off the hook, but it might not. The federal statute forbidding the sale of organs quite clearly permits defrayment of costs, and the amounts discussed by Planned Parenthood officials in the videos are so low that it is simply false to say that Planned Parenthood profited from sales of fetal organs—as Republican presidential candidates Rick Perry, Rand Paul, and Carly Fiorina nonetheless said in response to the first video that surfaced.
Still, even if one regards the Planned Parenthood videos and associated statements as so far over the line between protected opinion and defamatory false statements of fact that they justify civil liability, in general, it is probably the wiser course for the targets of overzealous citizen-journalists to respond through their own counter-speech. Justice Louis Brandeis famously wrote in 1927 that “the fitting remedy for evil counsels is good ones.” Likewise, in general the fitting remedy for misleading editing is a strong dose of truth.