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In 2015, Planned Parenthood sued the Center for Medical Progress for using undercover investigative techniques to surreptitiously record Planned Parenthood events and publishing those videos as evidence of alleged trafficking in fetal tissue for profit. A California jury found in favor of Planned Parenthood and awarded the organization nearly $2.5 million in compensatory damages. The U.S. Court of Appeals for the Ninth Circuit upheld the award, writing that “[i]nvoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 51 F.4th 1125, 1134 (9th Cir. 2022).

On July 3, FIREjoined other free speech, whistleblower protection, and animal advocacy groups in filing a friend-of-the-court brief with the Supreme Court, urging it to take up this case in light of the significant First Amendment issues at stake. As we argue in our brief, the Ninth Circuit’s decision threatens two significant aspects of First Amendment protections that are vital to newsgathering and reporting. First, undercover investigative reporting on matters of public concern pursued through investigative deception is protected speech under the First Amendment. Second, courts must uphold First Amendment limits on recoverable damages for non-defamation civil claims arising out of investigative reporting to avoid chilling undercover newsgathering and the investigative reporting reliant upon it.

Undercover reporting has led to some of the most explosive and consequential stories in American history—including Upton Sinclair’s graphic exposé of Chicago’s meatpacking industry in The Jungle, Nellie Bly’s undercover reports from a New York insane asylum, or the Washington Post’s reporting on conditions at Walter Reed National Military Medical Center. The Ninth Circuit’s decision threatens the constitutional protections on which these intrepid reporters rely, and the Supreme Court should step in to reaffirm the First Amendment’s guarantees of freedom of speech and freedom of the press.

On October 2, 2023, the U.S. Supreme Court denied the petition for certiorari.