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Table of Contents

Lying and Law

Stuart P. Green, Rutgers, The State University of New Jersey - School of Law-Newark

Defaming Planned Parenthood: Lying, Cybersmears, and the First Amendment

Kelsey Bain, Vermont Law School

Sponsored by Institute for the Study of the Judiciary,
Politics, and the Media (IJPM) at Syracuse University

"Lying and Law" Free Download
Jörg Meibauer (ed.), The Oxford Handbook of Lying (OUP, Forthcoming)

STUART P. GREEN, Rutgers, The State University of New Jersey - School of Law-Newark

How should the law regulate lies and other forms of deception? Sometimes, it takes a hard line, subjecting those who engage in deception to serious criminal or disciplinary sanctions. Other times, it is quite tolerant, declining to impose sanctions, and even affording certain kinds of deception constitutional protection. This chapter, written for a wide-ranging, interdisciplinary collection of essays on lying, offers a general survey of a very broad topic, focusing primarily on U.S. law, but also attempting, in a selective manner, to contrast that law to the law of other jurisdictions. The discussion begins with a consideration of the various ways in which deception functions as an element in three very different sorts of criminal offenses: perjury, fraud, and rape by deception. It then looks at how the law regulates deception by the police (during interrogations) and by lawyers (to courts and to their adversaries). Finally, it consider the possibility that deception used by the media and in the course of political campaigns might lie beyond the scope of permissible legal regulation. The main point will be to show how the law’s treatment of deception varies depending on the role of the person doing the deceiving (e.g., private individuals vs. government officials) and the social context in which the deception occurs (such as a courtroom, the marketplace, a police station, or a sexual encounter). More generally, it is intended to show the quite nuanced ways in which the law seeks to deter deceptive speech that is truly harmful without “chilling? deceptive speech that is harmless or even socially beneficial.

"Defaming Planned Parenthood: Lying, Cybersmears, and the First Amendment" 

KELSEY BAIN, Vermont Law School

In the summer and fall of 2015, the Center for Medical Progress (CMP, an anti-abortion organization, released several incriminating videos that implied Planned Parenthood was in the business of selling body parts from aborted fetuses for profit. Planned Parenthood, a nonprofit organization, provides reproductive health care and sex education to people in the United States and around the globe. Fetal tissue donations, like those performed by Planned Parenthood, are completely legal, and done with the consent of the mother. Further, the fetal tissue harvested from aborted fetuses is used to study potential treatments for cancer, diabetes, and birth defects, and is used in the actual treatment of Parkinson’s disease.

In the years leading up to the release of these videos, the head of CMP, David Daleiden, created a fake company named Biomax Procurement Services in order to deceive Planned Parenthood employees into attending joint meetings. One of these videos released by CMP was originally over two hours long , but the CMP video that spread like wildfire on the internet was a heavily edited eight-minute version. The video implied that Planned Parenthood profits from the abortions it provides. However, the full version of the video shows Planned Parenthood representatives stating several times that they make no profits from the donated fetal tissue.

Several states and the federal government have initiated investigations into the allegations against Planned Parenthood, but so far the organization has been cleared of any wrongdoing. In spite of this, Planned Parenthood has faced significant political, financial, and social backlash since the release of these videos. The House of Representatives took away $255 million in federal funding for one year, and since August there have been four arson attacks against Planned Parenthood clinics across the country. Further, in October a vandal broke in and, with a hatchet, caused extensive damage to a Planned Parenthood clinic in New Hampshire.

All of this raises the question: Are there steps that Planned Parenthood can take to hold the Center for Medical Progress accountable for their actions? In the age of the Internet, can organizations that release such destructive and false media to the public be held responsible, or are they acting within their First Amendment rights?

Defamation is a promising cause of action for Planned Parenthood against CMP. A defamation suit requires damage to one’s reputation. Clearly, CMP released these videos in an attempt to ruin Planned Parenthoods credibility, and in some ways they have succeeded. Internet defamation is a delicate new area of the law, and various jurisdictions treat it differently. But still, CMP may find refuge within the First Amendment, and maintain that their videos fall within their right to free speech. To overcome this, Planned Parenthood may have to prove that CMP demonstrated a reckless disregard for the truth. In my note, I argue that Planned Parenthood will be able to overcome any defenses, including First Amendment issues that CMP may raise.


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Law, Politics & the Media eJournal

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