Ask anyone who’s seen the undercover videos of Planned Parenthood staffers discussing the donation of fetal tissue.  Somebody did something awful.  But what was awful and who did it depends on who you talk to.    

The folks who are horrified by the practices of Planned Parenthood no doubt think the awful act is selling the fetal tissue.  And in this view of the world, the organization engaged in that awful act is Planned Parenthood.   

But there are two sides to the story.  And other folks think the awful act is the surreptitious recording itself.  And that would make The Center for Medical Progress guilty of the awful act.  And that begs the question whether the Center for Medical Progress violated any law.  And the answer is not entirely clear.  The answer depends in part on where the filing took place.  Most states permit a conversation to be recorded so long as one party to the conversation consents.  And the consenting party is allowed to be party recording the conversation. So here, at least in those “single consent” states, the Center for Medical Progress is probably off the hook.   

But there’s also a question about potential liability for fraud and trespass.  And that depends on what the Center for Medical Progress folks told Planned Parenthood.  If they lied about who they were and why they were there.  It’s conceivable that they could be liable for fraud and even trespass.  A key question is whether the videographers gained access to places where the public was otherwise not permitted to be.  If they lied to get access to some part of the premises not generally available to the public, they may have trespassed.  But if they entered an area open to the public and lied about why they were, they probably didn’t.  The case of  Desnick v. ABC offers the best discussion of this distinction.  And in the Desnick case, the court found ABC had not trespassed when it had producers enter an ophthalmologist’s office and expose his fraudulent practices.     

Assuming the ends don’t justify the means, then it matters a lot about how The Center for Medical Progress went about its investigation.  We will no doubt hear more on this in the days to come.  In the meantime, here’s an interesting discussion on the medical and journalistic ethics it raises.