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

Supreme Court briefSep 6, 2023

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No. 22-1168

In the Supreme Court of the United States

CENTER FOR MEDICAL PROGRESS; BIOMAX PROCUREMENT

SERVICES, LLC; and DAVID DALEIDEN,

Petitioners,

PLANNED PARENTHOOD FEDERATION OF AMERICA, et al.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Thomas Brejcha

Peter Breen

THOMAS MORE SOCIETY

309 W. Washington,

Suite 1250

Chicago, IL 60606

(312) 782-1680

Heather Gebelin Hacker

Andrew B. Stephens

HACKER STEPHENS LLP

108 Wild Basin Rd.

South Suite 250

Austin, TX 78746

(512) 399-3022

Harmeet K. Dhillon

Mark P. Meuser

DHILLON LAW GROUP

177 Post Street, Ste. 700

San Francisco, CA 94108

(415) 577-2850

Jeffrey M. Harris

Counsel of Record

James F. Hasson

James P. McGlone

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

jeff@consovoymccarthy.com

Charles S. LiMandri

Paul M. Jonna

Jeffrey M. Trissell

LIMANDRI & JONNA LLP

P.O. Box 9120

Rancho Santa Fe, CA 92067

(858) 759-9938

Attorneys for Petitioners

September 6, 2023

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Reply Brief ................................................................... 1

The Ninth Circuit’s decision cannot be squared

with this Court’s First Amendment jurisprudence. .................................................................... 2

II. PPFA cannot plausibly dispute the circuit

splits implicated here ........................................... 6

III. The purported obstacles to review are

illusory ................................................................ 11

Conclusion ................................................................. 13

TABLE OF AUTHORITIES

Cases

Beverly Hills Foodland, Inc. v. United Food & Com.

Workers Union, Loc. 655,

39 F.3d 191 (8th Cir. 1994) ...................................9

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ........................... 1, 4, 5, 10, 11

Compuware Corp. v. Moody’s Investors Services, Inc.,

499 F.3d 520 (6th Cir. 2007) ......................... 7, 8, 9

Food Lion, Inc. v. Cap. Cities/ABC, Inc.,

194 F.3d 505 (4th Cir. 1999) ....................... 4, 7, 10

Hustler Mag., Inc. v. Falwell,

485 U.S. 46 (1988) ..................................... 1, 3, 4, 6

Lopez v. United States,

373 U.S. 427 (1963) ...............................................3

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ...............................................5

McKee v. Cosby,

139 S. Ct. 675 (2019) ........................................... 12

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ....................................... 11, 12

People for the Ethical Treatment of Animals v.

North Carolina Farm Bureau Federation,

60 F.4th 815 (4th Cir. 2023) ............................... 10

Republican Party of Minnesota v. White,

536 U.S. 765 (2002) ...............................................3

iii

Smithfield Foods, Inc. v. United Food & Com.

Workers Int’l Union,

585 F. Supp. 2d 815 (E.D. Va. 2008) .................. 11

Snyder v. Phelps,

562 U.S. 443 (2011) ....................................... 5, 6, 9

Western Watersheds Project v. Michael,

869 F.3d 1189 (10th Cir. 2017) ........................... 11

Zacchini v. Scripps-Howard Broadcasting Co.,

433 U.S. 562 (1977) ........................................... 4, 5

Constitution

U.S. Const. amend. I ............................................. 1-13

REPLY BRIEF

PPFA faces the tall task of defending the constitutionally indefensible, and its only recourse is to mischaracterize the district court’s decision and the

Ninth Circuit opinion affirming it. By its own admission, PPFA sought damages for voluntary expenditures it undertook to “restore ‘confidence’” and “a

‘sense of trust and faith’” among its supporters after

Petitioners published videos exposing PPFA’s sale of

organs from aborted babies. BIO.11. Those are quintessential publication damages that must satisfy First

Amendment scrutiny.

Yet the district court held—and the Ninth Circuit

affirmed—that “[t]he First Amendment is not a defense to [PPFA’s] claims” because PPFA sued under

generally applicable causes of action and labeled its

damages “economic” in nature. See Pet.11-13. Contra

PPFA, Petitioners do not argue that the Ninth Circuit

erred by failing “to expand the actual-malice standard.” BIO.3. Rather, it erred by failing to apply the

First Amendment at all. See Pet.18 n.3. In the process,

the court created one circuit split and deepened another about the proper application of this Court’s dueling precedents in Hustler and Cowles.

The Fourth, Sixth, and Eighth Circuits have held

that plaintiffs cannot evade the First Amendment by

taking injuries allegedly caused by a defendant’s protected speech and creatively relabeling them as something else. But all that matters in the Ninth Circuit is

whether a plaintiff calls its injuries “economic” harms.

Likewise, the Fourth and Tenth Circuits have held

that First Amendment scrutiny is required whenever

a law is enforced against expressive activity, but the

First Circuit and now the Ninth Circuit have held that

the First Amendment is inapplicable if the law is “generally applicable.”

As a last resort, PPFA describes this case as a

“poor vehicle” for this Court to clarify its First

Amendment jurisprudence. See BIO.31-33. It argues

that this Court’s intervention “would not change the

outcome of this case” and, alternatively, that Petitioners “failed to raise or develop multiple arguments critical to their petition.” Neither contention holds water.

Petitioners have raised the same First Amendment

arguments throughout this litigation. Moreover, because PPFA’s claim for damages is subject to First

Amendment scrutiny, and the Ninth Circuit refused

to apply any level of scrutiny, a ruling in favor of Petitioners would necessarily set aside the entire award.

I. The Ninth Circuit’s decision cannot be

squared with this Court’s First Amendment

jurisprudence.

PPFA describes the Ninth Circuit’s decision as a

straightforward application of this Court’s precedents. BIO.26-31. That is incorrect.

A. The Ninth Circuit erred by failing to examine

the underlying cause of PPFA’s purported damages

and categorizing them as “economic” in nature solely

because they involved monetary expenditures. PPFA

concedes that most of those expenditures—which it

euphemistically labels “infiltration damages”—were

designed to restore the “confidence” and “faith” of unrelated third parties in the aftermath of CMP’s videos.

BIO.11; see Pet.8. This Court’s precedents are rife

with the once-unremarkable observation that damage

to the “public confidence” or “public faith” in an organization is synonymous with damage to its reputation.

See, e.g., Lopez v. United States, 373 U.S. 427, 442

(1963) (“the reputation of the individual agent for honesty” aligns closely with “the public’s confidence in his

work”); Republican Party of Minnesota v. White, 536

U.S. 765, 817-18 (2002) (a lack of “public faith” in an

organization is a product of its “reputation”). This case

is no different. PPFA’s expenditures to rehabilitate

the perceptions of third parties cannot be categorized

as anything other than “reputational” in nature. The

Ninth Circuit, however, classified PPFA’s purported

damages as “economic” in nature, simply because they

involved tangible expenditures. See Pet.21 (citing

App.22).

Put differently, the Ninth Circuit used PPFA’s

“costs for increased security measures” as “a stand-in

for direct publication damages.” Br. for Coal. of Free

Speech, Whistle-Blower Protections, and Animal Advocacy Orgs. at 4. That holding cannot be reconciled

with Hustler, or the “long” line of prior cases that “recognized that First Amendment defenses are available

against general tort claims.” Br. for Ethics and Pub.

Pol’y Ctr. at 9 n.3; see Hustler Mag., Inc. v. Falwell,

485 U.S. 46, 50-51 (1988).

The remainder of PPFA’s damages—the so-called

“security damages” reimbursing PPFA for the voluntary private security expenses it incurred—like the

“infiltration damages,” cannot possibly be tied to anything other than the public’s and third parties’ reaction to Petitioners’ protected speech. No one has alleged that CMP or its four associates involved in the

investigation—one of whom is an elderly woman—

posed an ongoing threat to any person identified by

CMP’s investigation. Thus, to the extent PPFA had

any basis for its exorbitant “security” expenses, that

must have flowed directly from third parties who listened to Petitioners’ speech. See Br. for Nat’l Right to

Life at 8.

PPFA contends that the Ninth Circuit’s opinion is

consistent with this Court’s decisions in Cohen v.

Cowles Media Co., 501 U.S. 663 (1991), and Zacchini

v. Scripps-Howard Broadcasting Co., 433 U.S. 562

(1977). See BIO.26-27. Not so. According to PPFA and

the Ninth Circuit, Cowles stands for the proposition

that the First Amendment is irrelevant whenever a

plaintiff sues under a “generally applicable” cause of

action that regulates conduct as well as speech. See

BIO.27; App.21. PPFA’s only defense of that sweeping

rule is that the defendant’s “publication [in Cowles]

was a but-for cause of the plaintiff’s damages,” and

this Court ultimately upheld a damages award under

a promissory estoppel theory, even though the veracity of the defendant’s speech was not at issue. BIO.2627. But that fundamentally misunderstands this

Court’s holding. As the Fourth Circuit explained in

Food Lion, Cowles can be reconciled with Hustler only

“if we view the challenged conduct in Cowles to be the

breach of promise and not some form of expression.”

Food Lion, Inc. v. Cap. Cities/ABC, Inc., 194 F.3d 505,

521-22 (4th Cir. 1999). 1 In other words, Cowles held

1 To the extent Hustler’s application is unclear in light of

Cowles, see infra, at 9-10, that is just another reason why the

that plaintiffs can recover damages for harmful conduct incidental to speech—it did not hold that speech

itself becomes unprotected whenever a plaintiff

chooses to sue under a “generally applicable” cause of

action.

Zacchini is equally inapposite. There, this Court

merely held that the press does not have a special

privilege to misappropriate “the proprietary interest

of [an entertainer] in his act.” 433 U.S. at 573. That

uncontroversial holding is no different from the tax,

labor, and antitrust laws listed in Cowles that are “enforceable against the press but do not burden expression.” Pet.26-27.

B. The Ninth Circuit alternatively suggested that

PPFA “‘would have been able to recover the [same]

damages even if [petitioners] had never published videos of their surreptitious recordings.’” BIO.28. PPFA

leans heavily on this dictum but cannot identify any

evidence to support it. PPFA argues that it could have

“found out” about CMP’s investigations “through some

other means” if Petitioners had never released their

videos. BIO.28-29. But speculation about what might

have occurred under a different fact pattern cannot

establish a cognizable injury, see Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992), much less compensatory damages. PPFA concedes that it “learned of”

Petitioners’ investigation “through their videos.”

BIO.28. Thus, PPFA’s purported “damages” were

caused solely by “what [Petitioners] said.” Snyder v.

Court should grant certiorari to clarify the First Amendment’s

application to tort claims based on speech.

Phelps, 562 U.S. 443, 457 (2011). Indeed, PPFA spent

“infiltration” and “security” costs solely to remedy its

lost reputational confidence due to public and third

party reaction to what Petitioners said.

In sum, PPFA cannot divorce its claims for damages from the reputational injuries alleged in its complaint. See Pet.10 (listing allegations of reputational

injury). The Ninth Circuit’s distorted definitions of

“economic” damages and “publication damages” do not

“comport[] with the purpose underlying the actualmalice requirement” or any other First Amendment

principle. BIO.26; cf. Hustler, 485 U.S. at 50 (“At the

heart of the First Amendment is the recognition of the

fundamental importance of the free flow of ideas and

opinions on matters of public interest and concern.”).

II. PPFA cannot plausibly dispute the circuit

splits implicated here.

PFFA denies any division among lower courts on

both questions presented in this case: when a damages award is barred as impermissible publication

damages, and whether a plaintiff’s invocation of a

“generally applicable law” against speech eliminates

any First Amendment scrutiny. On both points, PPFA

is wrong.

A. By allowing PPFA to recover for harms allegedly suffered from Petitioners’ speech—including

“damages” from the public’s lost “confidence” and

“sense of trust” in its activities, see Pet.10, 19—the

Ninth Circuit broke with three other circuits on the

definition of publication damages implicating the

First Amendment. There is no dispute that PPFA

suffered its purported harms only after publication,

see App.62 & n.11, yet the Ninth Circuit allowed PPFA

to skirt all First Amendment scrutiny by artfully

pleading non-reputational causes of action. It held

that PPFA’s damages were not “impermissible publication damages” because they were “economic”—i.e.,

involved tangible expenditures—rather than “reputational or emotional.” App.22. The other circuits to decide this question have not drawn such a line, but included economic harms among publication damages

where they were caused by a defendant’s publication.

Pet.16-22.

PPFA attempts to align this case with Food Lion

because that case applied First Amendment scrutiny

“to damage claims for reputational injury from a publication.” 194 F.3d at 523; see BIO.18. But, crucially,

Food Lion never distinguished—as the Ninth Circuit

did here—“economic harms” from publication harms.

Quite the opposite: the plaintiff company’s reputational injury chiefly consisted of “lost sales.” 194 F.3d

at 523. The Fourth Circuit thus refused to constrict

the reach of the First Amendment, as the Ninth Circuit has, by categorically immunizing claims for “economic harms.” See App.22.

PPFA also fails to distinguish Compuware Corp.

v. Moody’s Investors Services, Inc., 499 F.3d 520 (6th

Cir. 2007); see BIO.17-18. It cannot deny that Compuware rejected a “backdoor attempt to recover damages

for the harm allegedly caused by Moody’s protected

expression of its opinion of Compuware’s financial

condition.” 499 F.3d at 531. And PPFA ignores that

the Sixth Circuit’s First Amendment analysis began

from the fact that plaintiff sued because it was

“[u]nhappy with the contents of the [defendant’s] publication and the corresponding” economic injury, in

the form of a “ratings downgrade.” Id.

That court’s analysis unequivocally supports Petitioners here. The Compuware defendant’s (like Petitioners’) “opinion and its publication are matters protected by the First Amendment.” Id. Consequently

“the very subject matter and corresponding duties”

disputed in the case were “intimately tied to speech,

expression, and publication.” Id. The Sixth Circuit

also saw “no material difference” between the claim

before it and tort claims which concededly require

First Amendment scrutiny. Id. at 532. This conclusion

rested on the fact that the plaintiff “essentially assert[ed]” claims against the defendant’s “compiling

and evaluating its publication of protected expression”—i.e., that the claimed injury arose from the content the defendant chose to publish. Id. Compuware

further noted that the “injury” complained of was “not

contractual in nature,” even after the plaintiff

amended its complaint to seek only “rescission of its

agreement” with the defendant. Id. Likewise here,

PPFA “has not been injured by [Petitioners’] failure to

perform [their] contractual obligations,” but by Petitioners’ “negative statements about [PPFA].” Id. at

533.

The Ninth Circuit’s holding cannot be squared

with this analysis of publication damages, and PPFA’s

rejoinder that Compuware concerned “a repackaged

defamation claim” simply begs the question. BIO.16. 2

It is common ground that defamation-type damages

implicate the First Amendment even when a plaintiff

seeks them through some other cause of action against

publication. But when are damages (as the Ninth Circuit put it here) “impermissible publication damages”?

App.22. Compuware and other circuits’ decisions answer that the First Amendment applies when the injury is based on protected speech. Cf. Phelps, 562 U.S.

at 457 (“It was what [the defendant] said that exposed

it to … damages.” (emphasis added)).

B. The Ninth Circuit below also took the aggressive position that “the First Amendment does not

shield individuals from liability for violations of laws

applicable to all members of society.” App.21. It reduced the First Amendment analysis to a narrow inquiry into whether the law at issue is “aimed specifically at journalists or those holding a particular viewpoint.” App.21. In so holding, the Ninth Circuit joined

the First Circuit against the Fourth and Tenth Circuits. Pet.27-31.

PPFA attempts to minimize this conflict, but as

with the scope of publication damages, its efforts fail.

2 PPFA is correct that the Eighth Circuit’s approach in Beverly Hills Foodland “aligns with Compuware,” BIO.19, but only

because that case, too, is at odds with the Ninth Circuit’s holding.

Like the Sixth Circuit, the Eighth Circuit counted an economic

injury—harm to “business relations with customers”—as a publication injury implicating the First Amendment. Beverly Hills

Foodland, Inc. v. United Food & Com. Workers Union, Loc. 655,

39 F.3d 191, 196 (8th Cir. 1994).

At the outset, the Fourth Circuit has attempted to reconcile Cowles with this Court’s other cases by holding

that “the challenged conduct in Cowles” was “not some

form of expression” but simply a “breach of promise.”

Food Lion, 194 F.3d at 522. The Fourth Circuit recently doubled down on this narrower reading of

Cowles in People for the Ethical Treatment of Animals

v. North Carolina Farm Bureau Federation, 60 F.4th

815 (4th Cir. 2023) (“PETA”), petitions for cert. filed,

Nos. 22-1148 & 22-1150 (May 24, 2023). PETA holds

that Food Lion did not “read Cowles to mean that generally applicable laws may escape the First Amendment.” Id. at 826. The court returned to Cowles’ statement that “generally applicable law[s] … do not offend

the First Amendment simply because their enforcement against the press has incidental effects on its

ability to gather and report the news.” 60 F.4th at 825

(emphasis added). That rule, the court said, “is true,

so far as that goes,” but does not mean “[l]aws that

implicate a variety of conduct … need not pass First

Amendment scrutiny even when applied to speech.”

Id. at 825-26. Instead, the court listed “abound[ing]”

examples—drawn from the both the civil and criminal

context, but see BIO.21—in which a “generally applicable law” implicated the First Amendment when

“triggered … by ‘communicating a message.’” 60 F.4th

at 826.

PPFA downplays the conflict between this case

and PETA, but fails to engage with any of this analysis or the case’s foundation in Food Lion. BIO.24. It

instead tries to sweep this all away by focusing on differences between the laws at issue in each case.

BIO.24. But the divergence is unmistakable. Whereas

the Ninth Circuit here insisted that any First Amendment scrutiny would specially immunize “journalists”

from “laws applicable to all members of society,”

App.21, the Fourth Circuit has rejected this expansive

reading of Cowles to reconcile it with this Court’s

other decisions.

PPFA also fails to distinguish the Tenth Circuit’s

decision in Western Watersheds Project v. Michael,

striking down a law against trespassing on private

property to survey public property. 869 F.3d 1189,

1194 (10th Cir. 2017). The challenged law applied to

“journalists” and “all other members of our society”

alike, which would have averted any First Amendment scrutiny under the Ninth Circuit’s approach

here. App.21-22. Yet the Tenth Circuit ruled (in a preenforcement challenge) that the law’s potential application to protected speech transgressed the First

Amendment. PPFA cannot reconcile these two conflicting approaches.

At bottom, the lower courts have failed to resolve

the longstanding “analytical uncertainty” around the

First Amendment’s application to claims like those

here. Smithfield Foods, Inc. v. United Food & Com.

Workers Int’l Union, 585 F. Supp. 2d 815, 822 (E.D.

Va. 2008).

III. The purported obstacles to review are illusory.

PPFA repeatedly refers to the actual-malice

standard for defamation claims set forth in New York

Times Co. v. Sullivan, 376 U.S. 254 (1964). E.g.,

BIO.2, 16, 19, 22, 26. And PPFA argues that this case

is unfit for review because some members of this

Court have recently criticized Sullivan’s test. Id. at

33. But this case presents distinct First Amendment

questions that neither depend on Sullivan nor call for

a reassessment of its holding.

Petitioners have already explained that this case

does not present what “specific standard of First

Amendment scrutiny … would apply to speech-related

damages, whether falsity, actual malice, or something

else.” Pet.18 n.3. But PPFA ignores this altogether.

Instead, PPFA asserts that Petitioners “seek to reaffirm, clarify, and expand the applicability of” the actual-malice standard. BIO.33.

Not so. Sullivan concerned what level of protection the First Amendment provides against certain

defamation claims. 376 U.S. at 279-80; cf. McKee v.

Cosby, 139 S. Ct. 675, 677, (2019) (Thomas, J., concurring in denial of certiorari). This case, though, is about

whether the First Amendment applies at all to the

damages PPFA has claimed. The district court instructed the jury it did not. Pet.11 (citing 16-ER4274). The Ninth Circuit agreed. Pet.12-13; App.1923. This Court could grant review and reverse on that

core question without either extending or repudiating

Sullivan.

Finally, PPFA argues that reversal by this Court

“would not change the outcome of this case.” BIO.31.

But that argument depends on continued acceptance

of PPFA’s self-serving description of its relief as nonpublication damages—the very premise in dispute

here. See Pet.13. And it is premised on dicta by the

court of appeals, see supra, at 5, not any factual finding that could impede review. Properly applying the

First Amendment to a claim for injuries a plaintiff suffered after publication, App.62 & n.11, in the form of

harm to public “confidence” and “a ‘sense of trust and

faith’” in the plaintiff, BIO.11, would manifestly require reversal of the judgment below. This Court

should do so by clarifying its own caselaw and vindicating the First Amendment.

CONCLUSION

This Court should grant certiorari.