GUEST POST: The right to lie

By HENRIETTA G. TAVISH

Planned Parenthood has always valued the right to lie over the right to life. The principle is apparent in their recent litigation threat against student journalist Lila Rose for exposing the organization's attempt to cover up child rape. Not surprisingly, to protect its deceptions the abortion provider is invoking the notion of "privacy" as it emanates from the penumbras of some technical provisions of the Califonia Penal Code.

PP's complaint is that Miss Rose recorded her own "confidential communication" with a counselor who told her to "figure out a birth date that works" to circumvent state laws governing the reporting of statutory rape. (Miss Rose, 18, had posed as an 15 year old impregnated by a 23 year old boyfriend). In most states, Rose's conduct would be perfectly legal – the majority have adopted "one party consent" eavesdropping statutes which permit the recording of any conversation so long as any party to it (including the party taping) consents. It's a sensible rule -- after all, "eavesdropping" traditionally involves snooping by an unknown thirty party. But absent some special privilege -- doctor/patient, lawyer/client -- one has no genuine expectation of privacy or confidentiality from a person with whom one voluntarily engages in conversation. Either side can publicize the discussion as broadly as desired. Even where some privilege exists, it generally only binds one side; the patient or client can reveal it freely.

And indeed, Miss Rose was and is perfectly entitled to tell anyone about her chat with the rape-concealing counselor. For all the carping in PP's whiny and disingenuous lawyer-letter, its legal claim is based narrowly on a violation of California's Invasion of Privacy Act, which actually has nothing whatsoever to do with privacy. Penal Code Section 632 prohibits recording, which Rose undeniably did, but nothing prohibited her from going undercover, procuring the counselor's incriminating statement and revealing its substance to the world in any non-electronic form. There was nothing remotely private about the exchange itself.

So what PP is seeking to protect is not its right to privacy but its right to lie effectively. Without the recording, PP would have denied the conversation entirely or claimed that Rose "misheard" or "misinterpreted" what was said. Now, however, it's been reduced to the pathetic claim that it was "manipulated" into violating the rape reporting statutes.

Rose has wisely agreed to return the tapes and thus end the legal aspect of the dispute, despite what I suspect might have been some effective statutory and First Amendment defenses. (Insofar as at least one California appeals court has rejected a free press claim by a television station which videotaped its sting of a physician misprescribing drugs, the litigation would have necessarily been protracted). But as Jill Stanek reports, Rose will be on The O'Reilly Factor tonight. Why PP invited the upcoming avalanche of negative publicity with its lawsuit threat is uncertain, but I have some idea. Most likely, it may be seeking to chill future investigations by spreading lies and confusion on a national forum. Watch for PP flacks who try to demonize Rose by suggesting that her undercover tactics were illegal -- they were not -- and by leaving the misimpression that recording conversations is generally unlawful, rather than just in California and a few other states. With the words "child rape" permeating the air it will certainly be a hard sell, perhaps even for an organization in the business of marketing death.