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Guess Why Liberals Are Worried about the First Amendment

When liberals are worried about other liberals, for once conservatives have to agree with them.

In this case we have two authors who certainly qualify as liberal. Law professors Sherry F. Colb and Michael C. Dorf announce themselves as supporters of legal abortion and of the “important work” of Planned Parenthood.

But they write in their CNN editorial about how the grand jury in Harris County, Texas, not only cleared Planned Parenthood of illegally profiting by organ trafficking, but, “in a stunning act of legal jujitsu,” criminally charged the maker of the video, David Daleiden, and an associate, Sandra Merritt. As they put it, “we find the prosecution of these citizen journalists, however self-styled, deeply disturbing.”

Colb and Dorf recognize that undercover journalistic stings have long been protected speech and essential to informing the public of issues that are important to the public. The First Amendment is supposed to protect this kind of work.

Whatever the precise facts of this case prove to be, the prosecution has broader implications, and not just for abortion and anti-abortion speech. Undercover exposés play a vital role in informing the American public of important facts that would otherwise remain hidden.

They mention Upton Sinclair’s The Jungle as one famous work of undercover journalism. But the courts have not been consistent in protecting journalists from prosecution. Typically, liberals have sided with animal-rights activists who are charged with trespassing for using deception to take footage inside slaughterhouses.

So how can they claim undercover sting videos are fine for animals but off-limits for unborn children? They can’t. Thus, “the criminal prosecution of Daleiden and Merritt, even if they did break the law, could chill undercover journalists and activists everywhere.”

Reading Colb and Dorf is a bit repulsive. They seem incapable of even imagining why people view abortion as an unjustified act of aggression that violates the most basic human right. At the same time, there is evidence of humility in their stance. They seem to have missed the memo to liberals that, when they gain power, they should assume they will never lose it and do whatever they want. They want to have legal principles that they apply consistently, rather than a double standard where animal-rights activists get First Amendment protections and anti-abortion activists get criminal charges.

Even liberals can see, however begrudgingly, that what is happening in Harris County, Texas, is unjust and un-American.

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Joe Scudder

Joe Scudder is the "nom de plume" (or "nom de guerre") of a fifty-ish-year-old writer and stroke survivor. He lives in St Louis with his wife and still-at-home children. He has been a freelance writer and occasional political activist since the early nineties. He describes his politics as Tolkienesque.

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