Amicus Curiae Brief — Center for Medical Progress, et al., Petitioners v. Planned Parenthood Federation of America, et al.

No. 22-1168

IN THE

Supreme Court of the United States

_____________________________

CENTER FOR MEDICAL PROGRESS, et al.,

Petitioners,

v.

PLANNED PARENTHOOD FEDERATION OF AMERICA, et al.,

Respondents.

_____________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_____________________________

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE

FOUNDATION FOR MORAL LAW IN SUPPORT

OF PETITIONERS

_____________________________

John A. Eidsmoe*

*Counsel of Record

Roy S. Moore

Talmadge Butts

Katrinnah Darden

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

kayla@morallaw.org

talmadge@morallaw.org

katrinnah@morallaw.org

July 3, 2023

Counsel for Amicus Curiae

1

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE

COMES NOW Amicus Curiae, Foundation for

Moral Law, and moves for leave to file the attached

brief in support of Petitioners.

The Foundation for Moral Law is an Alabamabased legal organization dedicated to religious

liberty, freedom of speech and the press, and the

strict interpretation of the Constitution as intended

by its Framers. The Foundation believes freedom of

speech and freedom of the press are God-given

rights, enshrined with religious liberty as a first

priority in the Bill of Rights, not only to protect the

God-given rights of individual persons but also to

check the power of government and others who

might abuse their powers.

Believing that human life is a sacred gift from

God and that life begins at fertilization, the

Foundation has filed amicus briefs in Dobbs v.

Jackson Women’s Health Organization, 142 S. Ct.

2228 (2022), and other cases involving the sanctity

of life.

The Foundation for Moral Law submits this

Motion because, regretfully, its counsel failed to

provide 10-day notice to Respondents of its intent

to file this brief. This error occurred when,

reviewing its list of attorneys in this case and their

contact information, counsel for the Foundation

mistook the contact information for the counsel in

the lower court proceedings as the contact

2

information for the current counsel of record for

Respondents. As a result, Petitioners and

Intervenors were provided with 10-day notice, but

counsel did not realize its mistake as to

Respondents until four days prior to the deadline

for filing this brief.

WHEREFORE, the Foundation for Moral Law

respectfully requests that this Court grants this

Motion to file the attached brief in support of

Petitioners.

Respectfully submitted,

John A. Eidsmoe

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF THE ARGUMENT......................... 1

ARGUMENT ............................................................ 3

I.

Equity will not allow a wrongdoer to profit by

a wrong ............................................................. 6

II.

He who sues in equity must proceed with clean

hands .............................................................. 10

III. The decision below will chill and intimidate

undercover journalism ................................... 15

CONCLUSION ....................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Page

Adler v. Federal Republic of Nigeria,

219 F.3d 869 (9th Cir. 2000) .......................10, 13

Arkansas Writers’ Project, Inc., v. Ragland,

481 U.S. 221 (1987)............................................. 2

Bein v. Heath,

47 U.S. 228 (1848)............................................. 12

Deweese v. Reinhard,

165 U.S. 386 (1897)........................................... 12

Holy Family Catholic School v. Boley,

847 So. 2d 371 (2002) ................................... 10-11

Kendall-Jackson Winery, Ltd. v. Super Ct.,

76 Cal. App. 4th 970 (Cal. App. 5th Dist.

1999) .................................................................. 14

Liu v. Securities and Exchange Commission,

591 U.S. ___ (2020) ............................................. 7

Loughran v. Loughran,

292 U.S. 216 (1934)........................................... 13

Precision Instrument Mfg. Co. v. Auto

Maintenance Machine Co.,

324 U.S. 806 (1945)........................................... 13

Root v. Railway Company,

105 U.S. 189 (1881)......................................... 6, 8

Tilghman v. Proctor,

125 U.S. 136 (1888).......................................... 8-9

iii

Time Warner Cable, Inc. v. Hudson,

667 F.3d 630 (5th Cir. 2012) .............................. 2

Wieman v. Updegraff,

344 U.S. 183 (1952)........................................... 17

Other Authorities

ABC News 20/20, Press Release (Mar. 6,

2000), https://perma.cc/XX3Y-8BWB ................. 9

Alexandra DeSanctis, Big Abortion v. David

Daleiden, ETHICS AND PUBLIC POLICY

CENTER,

May

21,

2021,

https://eppc.org/publication/big-abortionv-david-daleiden/ ................................................ 5

Elizabeth Jane Cochran, Ten Days in a Mad

House (1887)...................................................... 15

Encyclepedia

Brittannica

Nellie

Bly:

American Journalist, https://www.britan

nica.com/biography/Nellie-Bly .................... 15-16

Fact Sheet: Planned Parenthood’s 2019-20

Annual Report, CHARLOTTE LOZIER

INSTITUTE,

Feb.

23,

2021,

lozierinstitute.org/fact-sheet-plannedparenthoods-2019-20-annual-report/ ............... 10

Gloria Steinem Publishes Part One of “A

Bunny’s Tale” in SHOW Magazine,

HISTORY.COM,

Nov.

20,

2021,

https://www.history.com/this-day-inhistory/gloria-steinem-publishes-abunnys-tale-show-magazine ............................. 16

Hunter S. Thompson, Hell’s Angels: The

iv

Strange and Terrible Saga of the Outlaw

Motorcycle Gangs (1996)................................... 16

John Milton, Areopagitica (Jebb ed.) (1644) ........... 2

John Norton Pomeroy, Equity Jurisprudence

and Equitable Remedies (1918) ........................ 11

Joseph Story, Commentaries on Equity

Jurisprudence (14th ed., 1918)......................... 11

Lauren

Gambino,

Second

Planned

Parenthood

video

shows

official

discussing fetal tissue, THE GUARDIAN,

Jul. 21, 2015, https://www.theguardian.

com/us-news/2015/jul/21/second-plannedparenthood-video-abortion ................................. 5

S. Flannagan, The truth About Hunter S.

Thompson’s Time with the Hells Angels,

Grunge.com,

Dec.

9,

2021,

https://www.grunge.com/702003/thetruth-about-hunter-s-thompsons-timewith-the-hells-angels/ ....................................... 16

1

INTEREST OF AMICUS CURIAE1

The Foundation for Moral Law is an Alabamabased legal organization dedicated to religious

liberty, freedom of speech and the press, and the

strict interpretation of the Constitution as intended

by its Framers. The Foundation believes freedom of

speech and freedom of the press are God-given

rights, enshrined with religious liberty as a first

priority in the Bill of Rights, not only to protect the

God-given rights of individual persons but also to

check the power of government and others who

might abuse their powers.

Believing that human life is a sacred gift from

God and that life begins at fertilization, the

Foundation has filed amicus briefs in Dobbs v.

Jackson Women’s Health Organization, 142 S. Ct.

2228 (2022), and other cases involving the sanctity

of life.

SUMMARY OF THE ARGUMENT

[T]o distrust the judgement and the honesty

1 The

Foundation for Moral Law provided timely notice to

Petitioners and Intervenors but failed to provide the 10-day

notice to Respondents. Accordingly, this brief is accompanied

by a motion for leave to file despite this error. Pursuant to

Rule 37.6, no party or party’s counsel authored this brief in

whole or in part, or contributed money that was intended to

fund its preparation or submission; and no person other than

the amicus curiae, its members, or its counsel, contributed

money that was intended to fund the preparation or

submission of this brief.

2

of one who hath but a common repute in

learning, and never yet offended, as not to

count him fit to print his mind without a

tutor or examiner, lest he should drop a

schism or something of corruption, is the

greatest displeasure and indignity to a free

and knowing spirit that can be put upon him.

— John Milton2

Freedom of speech and freedom of the press are

God-given rights that protect all persons. All

persons, not just licensed journalists, have the right

to disseminate their messages, not just narrowly

under the Free Speech Clause but also broadly

under the Free Press Clause.3

The First Amendment not only guarantees to

the individual a God-given right; it also checks

government power and checks the power of those

who, because of their wealth or influence or

connections, are able to misuse their power to

suppress the truth. That is another reason the Free

Press Clause protects the right of all persons to

disseminate their messages, not just the

2 John Milton, Areopagitica (Jebb ed.) (1644).630,

3 See Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 638-

39 (5th Cir. 2012), holding that “[l]aws singling out a small

number of speakers for onerous treatment are inherently

suspect.” See also, Ark. Writers’ Project, Inc., v. Ragland, 481

U.S. 221 (1987), invalidating a statute exempting some

publications from a sales tax but denying the exemption to

others).

3

established media.

And when one person’s right to speak or publish

is suppressed, the entire public discourse is

impoverished.

That is the reason this case is before this Court,

and that is the reason this Court should grant

certiorari in this case. This case involves a lone

independent journalist who exposed the corrupt

and

outrageous

practices

of

a

powerful

organization:

Planned

Parenthood.

Planned

Parenthood in response is trying to silence that

journalist in a way that makes sure neither he nor

anyone else will ever challenge them again.

Planned Parenthood comes to this Court with

hands that are not only unclean; they are dripping

with the blood of unborn babies whose organs they

have harvested and sold. They should not be

allowed to profit from their own wrongdoing

ARGUMENT

What is this case all about – really? Why is this

Petition before the Supreme Court?

Beneath the very important issues of circuit

splits, economic vs. reputational damages, and

RICO violations, the basic reason this case has

drawn national attention and is now before this

Court is this:

Planned Parenthood and some of its affiliates

(hereinafter “Planned Parenthood”) have engaged

4

in the illegal and outrageous business of harvesting

the organs of aborted babies and selling them at

great profit.

Their actions were discovered and disclosed to

the public.

And Planned Parenthood’s response is: Shoot

the messenger!

The “messenger” is David Daleiden and those

who work with him (hereinafter “Daleiden”), prolife activists whose views about abortion are

anathema to Planned Parenthood and many of its

allies in California media and government. When

Daleiden became aware that Planned Parenthood

may be harvesting organs and selling them, and

that law enforcement and the media seemed

uninterested, he formed the Center for Medical

Progress

and

through

undercover

means,

documented Planned Parenthood’s activities. He

revealed conversations with Planned Parenthood

officials in which they casually explained which

organs are most in demand, how they modify

abortion procedures to better obtain intact and

therefore more valuable organ and tissue samples

from aborted babies, how they cut through babies’

faces to harvest the brain or cut through other

parts of the body to harvest other organs, how they

work through procurement agencies to sell the

organs, and much more. In one of the Center for

Medical Progress videos, Planned Parenthood

senior executive Dr. Mary Gatter says concerning

5

an abortion to obtain babies’ organs, “The money is

not the important thing for me. But it has to be big

enough that it makes it worthwhile for me. . . . I

want a Lamborghini.”4 In response to charges that

the videos were edited and misleading, Daleiden

has released the entire unedited videos.5

When their deeds were made public, Planned

Parenthood and its co-plaintiffs launched a

campaign of vilification, criminal prosecutions, and

civil lawsuits to teach Daleiden a lesson. In a

California civil trial in which jurors were not

allowed to hear First Amendment defenses,

Daleiden was found liable for $2 million in

economic damages and nearly $14 million in

attorney fees—all for discovering and publishing

the truth.

Planned Parenthood has never claimed, much

less proven, that anything Daleiden published was

untrue, with one exception: They deny that they

actually made great profit selling harvested organs,

although they do not deny that their personnel

made that claim.

4 Lauren

Gambino, Second Planned Parenthood video shows

official discussing fetal tissue, THE GUARDIAN, Jul. 21, 2015,

https://www.theguardian.com/us-news/2015/jul/21/secondplanned-parenthood-video-abortion.

Alexandra DeSanctis, Big Abortion v. David Daleiden,

ETHICS AND PUBLIC POLICY CENTER, May 21, 2021,

https://eppc.org/publication/big-abortion-v-david-daleiden/.

5

6

They have never denied that they harvested the

organs of unborn babies and sold them. Instead,

they seek to teach a lesson to Daleiden and anyone

who shares his views: Don’t mess with an

organization as powerful and wealthy as Planned

Parenthood, or you will be forever ruined.

If this verdict and judgment are allowed to

stand, Planned Parenthood will have achieved its

objective. Investigative reporting, free speech, and

freedom of the press will be chilled, and few, if any,

will dare publish the truth.

The Foundation will not duplicate Petitioners’

well-drafted arguments that the decisions below

constitute a split with other circuits and violate the

free speech and free press guarantees of the First

Amendment.

Rather, the Foundation will argue that allowing

the Ninth Circuit decision to stand violates two

respected legal maxims: that one should not be

allowed to profit from one’s wrongful actions and

that one who sues in equity must do so with “clean

hands.”

I. Equity will not allow a wrongdoer to profit

by a wrong.

This Court recognized this maxim as early as

1881 in Root v. Railway Company, 105 U.S. 189

(1881), a case involving a party that had allegedly

infringed upon the patent rights of another relating

to a machine and profited from the infringement.

The lower court instructed the jury that the

7

plaintiff was entitled to actual damages for the

profits the plaintiff would have made from the

machine if the defendant had not interfered with

his patent rights. This Court, however, concluded

that the proper measure of damages was the profit

the defendant had wrongfully gained from the

misuse of the patented machine. The Court also

recognized that the principle could be affected by

statute and that, in some cases, expenditures and

reimbursements might be deducted from the

wrongful profits.

And in Liu v. Securities and Exchange

Commission, 591 U.S. ___ ,*6-7 (2020), this Court

ordered “disgorgement” of Liu’s profits from his

illegal scheme to defraud foreign nationals. The

Court noted that disgorgement is authorized by

“works on equity jurisprudence” and stated that

[t]hese works on equity jurisprudence reveal

two principles. First, equity practice long

authorized courts to strip wrongdoers of

their ill-gotten gains, with scholars and

courts using various labels for the remedy.

Second, to avoid transforming an equitable

remedy into a punitive sanction, courts

restricted the remedy to an individual

wrongdoer’s net profits to be awarded for

victims.

A

Equity courts have routinely deprived

wrongdoers of their net profits from unlawful

8

activity, even though that remedy may have

gone by different names. Compare, e.g., 1 D.

Dobbs, Law of Remedies §4.3(5), p. 611

(1993) (“Accounting holds the defendant

liable for his profits”), with id., §4.1(1), at

555 (referring to “restitution” as the relief

that “measures the remedy by the

defendant’s gain and seeks to force

disgorgement of that gain”); see also

Restatement (Third) of Restitution and

Unjust Enrichment §51, Comment a, p. 204

(2010) (Restatement (Third)) (“Restitution

measured by the defendant’s wrongful gain

is frequently called ‘disgorgement.’ Other

cases refer to an ‘accounting’ or an

‘accounting for profits’ “); 1 J. Pomeroy,

Equity Jurisprudence §101, p. 112 (4th ed.

1918) (describing an accounting as an

equitable remedy for the violation of strictly

legal primary rights).

No matter the label, this “profit-based

measure of unjust enrichment,” Restatement

(Third) §51, Comment a, at 204, reflected a

foundational principle: “[I]t would be

inequitable that [a wrongdoer] should make

a profit out of his own wrong,” Root v.

Railway Co., 105 U.S. 189, 207 (1882). At the

same time courts recognized that the

wrongdoer should not profit “by his own

wrong,”

they

also

recognized

the

countervailing equitable principle that the

9

wrongdoer should not be punished by

“pay[ing] more than a fair compensation to

the person wronged.” Tilghman v. Proctor,

125 U.S. 136, 145-146 (1888).

Let us apply this “foundational principle” to the

case at hand. Planned Parenthood wrongly

harvested body parts from unborn babies and sold

them at great profit. Even Planned Parenthood

acknowledges that this action is wrong. When Chris

Wallace conducted a hidden-camera investigation

and discovered similar acts by another abortion

provider, then-president of Planned Parenthood

Gloria Feldt stated concerning those actions,

“Where there is wrongdoing, it should be

prosecuted and the people who are doing that kind

of thing should be brought to justice.” ABC News

20/20,

Press

Release

(Mar.

6,

2000),

https://perma.cc/XX3Y-8BWB.

Daleiden and the Center for Medical Progress

caught and exposed Planned Parenthood for doing

precisely what Ms. Feldt had publicly condemned.

And now, Planned Parenthood seeks to profit from

its wrongdoing. Planned Parenthood sought, and

the District Court awarded, $366,873 in

“infiltration damages,” $101,048 in “security

damages,” nearly $2,000,000 in punitive damages,

and more than $13,700,000 in attorney fees and

costs. The “infiltration” and “security” damages are

to provide Planned Parenthood a better security

system than it has at present, making Planned

10

Parenthood more secure than before. 6 The nearly

$2,000,000 in punitive damages enhances Planned

Parenthood’s already-enlarged coffers.7

If this award is allowed to stand, Planned

Parenthood will profit from its own wrongdoing,

which is an abomination under common law.

II. He who sues in equity must proceed with

clean hands.

As the Ninth Circuit recognized in Adler v.

Federal Republic of Nigeria, 219 F.3d 869 (9th Cir.

2000), in California, the “clean hands” doctrine

applies in suits at law as well as in equity.

The clean hands doctrine is similar to the

doctrine that one may not profit from one’s own

wrongdoing, but it refers to one who has asked the

court to right a wrong but is complicit in the wrong

he seeks to right. For example, in Holy Family

Catholic School v. Boley, 847 So, 2d 371 (2002), an

employee of Holy Family Catholic School named

Charles W. Boley suffered an on-the-job injury. As

6 One might ask why Planned Parenthood needs an enhanced

security system if it has no intention of engaging in future

unethical or illegal operations.

7 According

to the Lozier Institute, in its 2019-2020 annual

report, Planned Parenthood listed $1.6 billion in income and

over $2.0 billion in net assets. Fact Sheet: Planned

Parenthood’s 2019-20 Annual Report, CHARLOTTE LOZIER

INSTITUTE, Feb. 23, 2021, lozierinstitute.org/fact-sheetplanned-parenthoods-2019-20-annual-report/.

11

part of the settlement, the School was to maintain

an account at Medicine Shoppe through which

Boley could obtain his injury-related medications.

Boley charged unrelated medications to the

account, so the School closed the account. Boley

sued, but the Alabama Court of Civil Appeals ruled

that Boley’s acts of charging unrelated medications

to the account constituted “unclean hands” and

refused to entertain his lawsuit.

As Justice Joseph Story wrote in Commentaries

on Equity Jurisprudence (14th ed., 1918) at section

98:

It is one of the fundamental principles upon

which equity jurisprudence is founded that,

before a complainant can have a standing in

court, he must first show that not only has

he a good and meritorious cause of action,

but he must come into court with clean

hands. He must be frank and fair with the

court, nothing about the case under

consideration should be guarded, but

everything that tends to a full and fair

determination of the matters in controversy

should be placed before the court.

John

Norton

Pomeroy

wrote

in

Equity

Jurisprudence and Equitable Remedies (1918) sec.

397:

whenever a party who, as actor, seeks to set

the judicial machinery in motion and obtain

some remedy has violated conscience or good

12

faith or other equitable principle in his prior

conduct, then the doors of the court will be

shut against him in limine; the court will

refuse to interfere on his behalf, to

acknowledge his right, or to award him any

remedy.

This Court held in Bein v. Heath, 47 U.S. 228

(1848) at 247,

It is a principle in chancery that he who asks

relief must have acted in good faith. The

equitable powers of this Court can never be

exerted in behalf of one who has acted

fraudulently, or who by deceit or any unfair

means has gained an advantage. To aid a

party in such a case would make this Court

the a better of iniquity.

And this Court also stated in Deweese v. Reinhard,

165 U.S. 386 (1897) at 390:

A court of equity acts only when and as

conscience commands; and if the conduct of

the plaintiff be offensive to the dictates of

natural justice, then whatever may be the

rights he possesses, and whatever use he

may make of them in a court of law, he will

be held remediless in a court of equity.

In the District Court below, Daleiden raised the

unclean hands defense, arguing that because

Planned Parenthood had engaged in the unethical

and illegal harvesting and sale for profit of the

13

organs of unborn babies, their hands were unclean

and therefore they could not bring this lawsuit.

The District Court granted summary judgment

to Planned Parenthood on Daleiden’s clean hands

defense, noting that the Planned Parenthood’s

“unclean” conduct does not directly relate to its

lawsuit against Daleiden.

It is true that equity “does not demand that its

suitors shall have led blameless lives.” Loughran v.

Loughran, 292 U.S. 216, 239 (1934). There must be

a nexus between the plaintiff’s wrongful acts and

the remedy he seeks in court. If a plaintiff sues a

defendant for wrongful conversion of stocks, and

the plaintiff had committed an act of shoplifting

many years earlier, that would not give rise to the

unclean hands defense because the acts are not

related to one another. But they do not need to be

as directly related as the District Court indicated.

The District Court cited Adler v. Federal

Republic of Nigeria, 219 F.3d 869 (9th Cir. 2000), in

which Adler advanced $5 million for an illegal

contract with Nigeria. Adler performed on the

contract, Nigeria did not. Adler sued, and Nigeria

claimed Adler had unclean hands because the

contract was illegal. The Ninth Circuit held that

the parties were equally at fault, and therefore

they applied the clean hands doctrine as a bar to

recovery. This case actually supports Daleiden’s

clean hands defense.

The

District

Court

also

cited

Precision

14

Instrument Mfg Co. v. Auto Maintenance Machine

Co., 324 U.S. 806 (1945), in which this Court held

that the plaintiff’s misconduct must relate directly

to the cause at issue. Even though both parties’

misconduct were of many kinds, from perjury to

patent infringements, this Court concluded at 819

that the District Court had been correct because

the “inequitable conduct empregnated Automotive’s

entire cause of action, and justified dismissal by

resort to the unclean hands doctrine.” The Court

also noted at 815 that “one’s misconduct need

necessarily have been of such a nature as to be

punishable as a crime or as to justify legal

proceedings of any character. Any willful act

concerning the cause of action which rightfully can

be said to transgress equitable standards of

conduct is sufficient cause for the invocation of the

[unclean hands] maxim by the chancellor.” Again,

this case supports Daleiden’s position more than

that of Planned Parenthood.

The final case cited by the District Court is

Kendall-Jackson Winery, Ltd. v. Super. Ct., 76 Cal.

App. 4th 970 (Cal. App. 5th Dist. 1999). In Kendall,

the California Appellate Court said the issue in a

malicious prosecution claim is whether the relevant

misconduct was limited to that which affected the

other party’s decision to file and pursue the prior

lawsuit. There is no prior lawsuit here, but clearly

the misconduct of Planned Parenthood in

harvesting and selling the organs of unborn babies

is directly related to Daleiden’s decision to do his

15

undercover investigation. It is the only reason he

conducted the investigation. The results of his

investigation, which demonstrated that Planned

Parenthood is engaged in these practices on a wide

scale, is the only reason Planned Parenthood

brought this lawsuit. Like the other two cases cited

by the District court, this case supports Daleiden’s

position more than that of Planned Parenthood.

Planned Parenthood’s unethical and illegal

activities are what this lawsuit is all about. Clearly

they are related, even directly related. One cannot

separate the harvesting of unborn babies from this

lawsuit.

The unclean hands doctrine therefore applies.

Planned Parenthood should not be allowed to bring

a lawsuit in which their hands are not only

unclean, but dripping with blood.

III. The decision below will chill

intimidate undercover journalism.

and

Undercover journalism has a long and

important history in the discovery and exposure of

truth.

Consider Elizabeth Jane Cochran, better known

by her pseudonym Nellie Bly, who in 1887 at the

behest of the New York World checked herself in as

a patient into the Women’s Lunatic Asylum on

Blackwell’s Island, feigning insanity, to report on

cruelty and neglect. Her reporting in the New York

World, followed by her book, Ten Days in a Mad

House (1887), led to a grand jury indictment of the

16

asylum. She engaged in similar undercover

journalism in sweatshops, jails, and the

legislature.8

Or consider Gloria Steinem, who in order to

expose exploitative working conditions in New

York’s Playboy Club applied for and obtained a job

as a Playboy Bunny, worked at the job for eleven

days, and wrote “A Bunny’s Tale” which was

published in Show Magazine in 1963. 9

And consider Hunter S. Thompson, who in 1965

was hired by The Nation editor Carey McWilliams

to go undercover as a member of the Hell’s Angels

motorcycle club in California. His book Hell’s

Angels: The Strange and Terrible Saga of the

Outlaw Motorcycle Gangs was published by

Random House in 1966 and was widely praised for

the information and insights it revealed. 10

Had these undercover journalists, and many

8 Encyclepedia

Brittannica Nellie Bly: American Journalist,

https://www.britannica.com/biography/Nellie-Bly.

9 Gloria

Steinem Publishes Part One of “A Bunny’s Tale” in

SHOW

Magazine,

History.com,

Nov.

20,

2021,

https://www.history.com/this-day-in-history/gloria-steinempublishes-a-bunnys-tale-show-magazine.

Hunter S. Thompson, Hell’s Angels: The Strange and

Terrible Saga of the Outlaw Motorcycle Gangs, (1996); S.

Flannagan, The truth About Hunter S. Thompson’s Time with

the

Hells

Angels,

Grunge.com,

Dec.

9,

2021,

https://www.grunge.com/702003/the-truth-about-hunter-sthompsons-time-with-the-hells-angels/.

10

17

like them, faced the massive retaliation Planned

Parenthood has launched against Daleiden, no one

would have followed in their footsteps. If this

decision stands, would-be investigative journalists

will know not to take on the rich, powerful, and

well-connected, or they will face financial ruin.

Much information and evidence about illegal and

immoral activities will remain hidden from public

view, and the public will not be able to act to

correct these injustices.

This is a classic example of a “chilling effect” on

free speech as described in Wieman v. Updegraff,

344 U.S. 183 (1952).

If the lower court decision is allowed to stand,

not only will Daleiden be deprived of his God-given

rights to freedom of speech and freedom of the

press as guaranteed by the United States

Constitution, the American people will be deprived

of much important information that can be helpful

in public discourse.

CONCLUSION

Rich,

powerful,

and

well-connected

organizations are harvesting the organs of unborn

babies, selling them, and privately bragging about

it. The public and those who make our laws would

know nothing of this, were it not for one man of

courage and integrity who went undercover to learn

and expose the truth.

The Foundation urges the Court to grant

Daleiden’s Petition for a Writ of Certiorari, not only

18

to resolve a circuit split and correct a grave

injustice, but also to ensure that the rich, powerful,

and well-connected are not able to misuse their

power and suppress information that is vital to

public discourse.

Respectfully submitted,

John A. Eidsmoe*

*Counsel of Record

Roy S. Moore

Talmadge Butts

Katrinnah Darden

FOUNDATION FOR MORAL

LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

kayla@morallaw.org

talmadge@morallaw.org

katrinnah@morallaw.org

Counsel for Amicus Curiae

July 3, 2023