FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLANNED PARENTHOOD FEDERATION 

OF AMERICA, INC.; PLANNED 

PARENTHOOD: SHASTA-DIABLO, INC., 

DBA Planned Parenthood Northern 

California; PLANNED PARENTHOOD 

MAR MONTE, INC.; PLANNED 

PARENTHOOD OF THE PACIFIC 

SOUTHWEST; PLANNED PARENTHOOD 

LOS ANGELES; PLANNED 

PARENTHOOD/ORANGE AND SAN 

BERNARDINO COUNTIES, INC.; 

PARENTHOOD CALIFORNIA CENTRAL 

COAST, INC.; PLANNED PARENTHOOD 

PASADENA AND SAN GABRIEL 

VALLEY, INC.; PLANNED 

PARENTHOOD CENTER FOR CHOICE; 

PLANNED PARENTHOOD OF THE 

ROCKY MOUNTAINS; PLANNED 

PARENTHOOD GULF COAST, 

Plaintiffs-Appellees, 

 v. 

TROY NEWMAN, 

Defendant-Appellant, 

and 

CENTER FOR MEDICAL PROGRESS; 

BIOMAX PROCUREMENT SERVICES, 

LLC; DAVID DALEIDEN, AKA Robert 

Daoud Sarkis; ALBIN RHOMBERG; 

No. 20-16068 

D.C. No. 3:16-cv-00236-WHO 

OPINION

FILED

OCT 21 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
SANDRA SUSAN MERRITT, AKA Susan

Tennenbaum; GERARDO ADRIAN 

LOPEZ, 

Defendants, 

______________________________ 

NATIONAL ABORTION FEDERATION, 

Intervenor.

PLANNED PARENTHOOD FEDERATION 

OF AMERICA, INC.; PLANNED

PARENTHOOD: SHASTA-DIABLO, INC., 

DBA Planned Parenthood Northern 

California; PLANNED PARENTHOOD 

MAR MONTE, INC.; PLANNED 

PARENTHOOD OF THE PACIFIC 

SOUTHWEST; PLANNED PARENTHOOD 

LOS ANGELES; PLANNED 

PARENTHOOD/ORANGE AND SAN 

BERNARDINO COUNTIES, INC.; 

PARENTHOOD CALIFORNIA CENTRAL 

COAST, INC.; PLANNED PARENTHOOD 

PASADENA AND SAN GABRIEL 

VALLEY, INC.; PLANNED 

PARENTHOOD CENTER FOR CHOICE; 

PLANNED PARENTHOOD OF THE 

ROCKY MOUNTAINS; PLANNED 

PARENTHOOD GULF COAST, 

Plaintiffs-Appellees, 

 v. 

CENTER FOR MEDICAL PROGRESS; 

BIOMAX PROCUREMENT SERVICES, 

LLC; DAVID DALEIDEN, AKA Robert 

Daoud Sarkis; GERARDO ADRIAN 

LOPEZ, 

No. 20-16070 

D.C. No. 3:16-cv-00236-WHO 
Defendants-Appellants, 

and 

TROY NEWMAN; ALBIN RHOMBERG; 

SANDRA SUSAN MERRITT, AKA Susan 

Tennenbaum, 

Defendants, 

______________________________ 

NATIONAL ABORTION FEDERATION, 

Intervenor.

PLANNED PARENTHOOD FEDERATION 

OF AMERICA, INC.; PLANNED 

PARENTHOOD: SHASTA-DIABLO, INC., 

DBA Planned Parenthood Northern 

California; PLANNED PARENTHOOD 

MAR MONTE, INC.; PLANNED 

PARENTHOOD OF THE PACIFIC 

SOUTHWEST; PLANNED PARENTHOOD 

LOS ANGELES; PLANNED 

PARENTHOOD/ORANGE AND SAN 

BERNARDINO COUNTIES, INC.; 

PARENTHOOD CALIFORNIA CENTRAL 

COAST, INC.; PLANNED PARENTHOOD 

PASADENA AND SAN GABRIEL 

VALLEY, INC.; PLANNED 

PARENTHOOD CENTER FOR CHOICE; 

PLANNED PARENTHOOD OF THE 

ROCKY MOUNTAINS; PLANNED 

PARENTHOOD GULF COAST, 

Plaintiffs-Appellees, 

 v. 

No. 20-16773 

D.C. No. 3:16-cv-00236-WHO 
ALBIN RHOMBERG, 

Defendant-Appellant, 

and 

CENTER FOR MEDICAL PROGRESS; 

BIOMAX PROCUREMENT SERVICES, 

LLC; DAVID DALEIDEN, AKA Robert 

Daoud Sarkis; TROY NEWMAN; SANDRA 

SUSAN MERRITT, AKA Susan 

Tennenbaum; GERARDO ADRIAN 

LOPEZ, 

Defendants, 

______________________________ 

NATIONAL ABORTION FEDERATION, 

Intervenor.

PLANNED PARENTHOOD FEDERATION 

OF AMERICA, INC.; PLANNED 

PARENTHOOD: SHASTA-DIABLO, INC., 

DBA Planned Parenthood Northern 

California; PLANNED PARENTHOOD 

MAR MONTE, INC.; PLANNED 

PARENTHOOD OF THE PACIFIC 

SOUTHWEST; PLANNED PARENTHOOD 

LOS ANGELES; PLANNED 

PARENTHOOD/ORANGE AND SAN 

BERNARDINO COUNTIES, INC.; 

PARENTHOOD CALIFORNIA CENTRAL 

COAST, INC.; PLANNED PARENTHOOD 

PASADENA AND SAN GABRIEL 

VALLEY, INC.; PLANNED 

PARENTHOOD CENTER FOR CHOICE; 

PLANNED PARENTHOOD OF THE 

ROCKY MOUNTAINS; PLANNED 

PARENTHOOD GULF COAST, 

No. 20-16820 

D.C. No. 3:16-cv-00236-WHO 
Plaintiffs-Appellees, 

 v. 

SANDRA SUSAN MERRITT, AKA Susan 

Tennenbaum, 

Defendant-Appellant, 

and 

CENTER FOR MEDICAL PROGRESS; 

BIOMAX PROCUREMENT SERVICES, 

LLC; DAVID DALEIDEN, AKA Robert 

Daoud Sarkis; TROY NEWMAN; ALBIN 

RHOMBERG; GERARDO ADRIAN 

LOPEZ, 

Defendants, 

______________________________ 

NATIONAL ABORTION FEDERATION, 

Intervenor.

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted April 21, 2022

San Francisco, California

Before: Mary H. Murguia, Chief Judge, Ronald M. Gould, Circuit Judge, and 

Nancy D. Freudenthal,* District Judge.

Opinion by Judge Gould

* The Honorable Nancy D. Freudenthal, United States District Judge for 

the District of Wyoming, sitting by designation.
SUMMARY**

Federal Wiretap Act / Damages / First Amendment

The panel affirmed in part and reversed in part the district court’s judgment, after 

a jury trial, in favor of Planned Parenthood Federation of America, Inc., and other 

plaintiffs on claims of trespass, fraud, conspiracy, breach of contracts, unlawful and 

fraudulent business practices, violating civil RICO, and violating various federal and 

state wiretapping laws.

Defendants used fake driver’s licenses and a false tissue procurement company 

as cover to infiltrate conferences that Planned Parenthood hosted or attended. Using 

the same strategy, defendants also arranged and attended lunch meetings with 

Planned Parenthood and visited Planned Parenthood health clinics. During these 

conferences, meetings, and visits, defendants secretly recorded Planned Parenthood 

staff without their consent. After secretly recording for roughly a year-and-a-half, 

defendants released on the internet edited videos of the secretly recorded 

conversations. After a jury trial, the district court entered judgment in favor of 

Planned Parenthood and awarded it statutory, compensatory, and punitive damages 

as well as limited injunctive relief.

Affirming in part, the panel held that the compensatory damages were not 

precluded by the First Amendment. The panel held that under Cohen v. Cowles 

Media Co., 501 U.S. 663 (1991), and Animal Legal Def. Fund v. Wasden, 878 F.3d 

1184 (9th Cir. 2018), facially constitutional statutes apply to everyone, including 

journalists. None of the laws defendants violated was aimed specifically at 

journalists or those holding a particular viewpoint, and the two categories of 

compensatory damages permitted by the district court, infiltration damages and 

security damages, were awarded by the jury to reimburse Planned Parenthood for 

losses caused by defendants’ violations of generally applicable laws.

The panel reversed the jury’s verdict on the claim under the Federal Wiretap Act, 

18 U.S.C. § 2511(2)(d), and vacated the related statutory damages for violating this 

statute, which provides that a person may record a conversation in which he or she 

** This summary constitutes no part of the opinion of the court. It has been 

prepared by court staff for the convenience of the reader.
is a party unless the “communication is intercepted for the purpose of committing 

any criminal or tortious act in violation of the Constitution or laws of the United 

States or of any State.” At trial, Planned Parenthood argued that the criminal or 

tortious purpose behind defendants’ recordings was to further their civil RICO 

enterprise with the ultimate goal of harming or destroying Planned Parenthood. The 

panel held that defendants’ violation of civil RICO was not a sufficient criminal or 

tortious purpose to impose liability under § 2511(2)(d) because the criminal or 

tortious purpose must be independent of and separate from the purpose of the 

recording.

The panel addressed defendants’ other grounds of appeal in a separate 

memorandum disposition, filed simultaneously with this opinion.
COUNSEL

William C. Perdue (argued) and Meghan C. Martin, Arnold & Porter Kaye Scholer 

LLP, Washington, D.C.; Avishai D. Don, Arnold & Porter Kaye Scholer LLP, New 

York, New York; Steven L. Mayer, Sharon D. Mayo, Jeremy T. Kamras, and 

Matthew R. Diton, Arnold & Porter Kaye Scholer LLP, San Francisco, California; 

Rhonda R. Trotter and Oscar D. Ramallo, Arnold & Porter Kaye Scholer LLP, Los 

Angeles, California; Amy L. Bomse, Rogers Joseph O’Donnell, San Francisco, 

California; Helene T. Krassnoff, Planned Parenthood Federation of America, 

Washington, D.C.; Beth Parker, Parker Law & Mediation, Inverness, California; for 

Plaintiffs-Appellees.

Heather Hacker (argued), Austin, Texas; Erik M. Zimmerman (argued), Edward L. 

White III, John A. Monaghan, and Christina A. Stierhoff, American Center for Law 

& Justice; Ann Arbor, Michigan; Catherine W. Short (argued), Life Legal Defense 

Foundation, Ojai, California; Michael Millen, Law Offices of Michael Millen, Los 

Gatos, California; Vladimir F. Kozina, Mayall Hurley PC, Stockton, California; 

Charles S. LiMandri, Paul M. Jonna, Jeffrey M. Trissell, and Milan L. Brandon II, 

Freedom of Conscience Defense Fund, Rancho Santa Fe, California; Thomas 

Brejcha, Peter Breen, and Matthew Heffron, Thomas More Society, Chicago, 

Illinois; Harmeet K. Dhillon and Mark P. Meuser, Dhillon Law Group Inc., San 

Francisco, California; Nicolaie Cocis, Law Office of Nic Cocis & Associates, 

Murrieta, California; Horatio G. Mihet, Liberty Counsel, Orlando, Florida; for 

Defendants-Appellants.

Krysten L. Connon, Licheten & Liss-Riordan PC, Boston, Massachusetts; Susan J. 

Frietsche, Women’s Law Project, Western Pennsylvania Office, Pittsburgh, 

Pennsylvania; Christine Castro, Women’s Law Project, Philadelphia, Pennsylvania; 

for Amici Curiae Feminist Majority Foundation, Physicians for Reproductive 

Health, and Abortion Care Network.

Erwin Chemerinsky, University of California, Berkeley, School of Law, Berkeley, 

California, for Amici Curiae Constitutional Law Professors Khiara Bridges, June 

Carbone, Martha Field, Michele Goodwin, Lisa Ikemoto, Kevin Johnson, Sylvia 

Law, Burt Neuborne, and Dorothy Roberts.

Kimberly A. Parker, Emily L. Stark, and Aleksandr Sverdlik, Wilmer Cutler 

Pickering Hale and Dorr LLP, Washington, D.C., for Amici Curiae California 

Medical Association and American Medical Association.

Mark Poe and Samuel Song, Gaw Poe LLP, San Francisco, California, for Amici 

Curiae Journalism Scholars and Journalists.
Matthew J. Geragos, Geragos Law Group, Los Angeles, California for Amicus 

Curiae Former Orange County, California District Attorney Anthony Rackauckas.

Paul J. Orfanedes and Meredith L. Di Liberto, Judicial Watch Inc., Washington, 

D.C., for Amicus Curiae Judicial Watch Inc.

Benjamin Barr, Barr & Klein PLLC, Chicago, Illinois; Stephen Klein, Barr & Klein 

PLLC, Washington, D.C.; for Amici Curiae Project Veritas and Project Veritas 

Action Fund.

Catherine G. Foster, Steven H. Aden, Katie Glenn, and Natalie Hejran, Americans 

United for Life, Washington, D.C., for Amicus Curiae Americans United for Life.

Kristine L. Brown, Denver, Colorado, for Amicus Curiae Live Action.

Justin F. Marceau, University of Denver, Sturm College of Law, Denver, Colorado; 

Christopher O. Murray and Julian R. Ellis, Jr., Brownstein Hyatt Farber Schreck 

LLP, Denver, Colorado; for Amici Curiae Free Speech Scholars and AnimalAdvocacy Organizations.

Drew C. Ensign, Deputy Solicitor General; Brunn W. Roysden III, Solicitor General; 

Robert J. Makar, Assistant Attorney General; Mark Brnovich, Attorney General; 

Joseph A. Kanefield, Chief Deputy & Chief of Staff; Office of the Attorney General, 

Phoenix, Arizona; Steve Marshall, Attorney General, Montgomery, Alabama; Leslie 

Rutledge, Attorney General, Little Rock, Arkansas; Christopher Carr, Attorney 

General, Atlanta, Georgia; Lawrence G. Wasden, Attorney General, Boise, Idaho; 

Todd Rokita, Attorney General, Indianapolis, Indiana; Derek Schmidt, Attorney 

General, Topeka, Kansas; Daniel Cameron, Attorney General, Frankfort, Kentucky; 

Jeff Landry, Attorney General, Baton Rouge, Louisiana; Lynn Fitch, Attorney 

General, Jackson, Mississippi; Eric Schmitt, Attorney General, Jefferson City, 

Missouri; Austin Knudsen, Attorney General, Helena, Montana; Douglas Peterson, 

Attorney General, Lincoln, Nebraska; Dave Yost, Attorney General, Columbus, 

Ohio; Mike Hunter, Attorney General, Oklahoma City, Oklahoma; Alan Wilson, 

Attorney General, Columbia, South Carolina; Jason Ravnsborg, Attorney General, 

Pierre, South Dakota; Ken Paxton, Attorney General, Austin, Texas; Sean Reyes, 

Attorney General, Salt Lake City, Utah; Patrick Morrisey, Attorney General, 

Charleston, West Virginia; for Amici Curiae Attorneys General of Arizona, 

Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, 

Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South 

Dakota, Texas, Utah, and West Virginia.
1

GOULD, Circuit Judge:

Defendants-Appellants (“Appellants”) used fake driver’s licenses and a false

tissue procurement company as cover to infiltrate conferences that PlaintiffsAppellees (“Planned Parenthood”) hosted or attended. Using the same strategy, 

Appellants also arranged and attended lunch meetings with Planned Parenthood

staff and visited Planned Parenthood health clinics. During these conferences, 

meetings, and visits, Appellants secretly recorded Planned Parenthood staff

without their consent. After secretly recording for roughly a year-and-a-half, 

Appellants released on the internet edited videos of the secretly recorded 

conversations. Planned Parenthood sued Appellants for monetary damages and 

injunctive relief. After pre-trial motions and a six-week trial, Appellants were 

found guilty of trespass, fraud, conspiracy, breach of contracts, unlawful and 

fraudulent business practices, violating civil RICO, and violating various federal 

and state wiretapping laws. Planned Parenthood was awarded statutory, 

compensatory, and punitive damages as well as limited injunctive relief. 

Appellants argue that the compensatory damages awarded against them are 

precluded by the First Amendment and that Planned Parenthood did not show that 
2 

Appellants violated the Federal Wiretap Act.

1

 We have jurisdiction under 28 

U.S.C. § 1291. We affirm the awards of compensatory and punitive damages, but

we reverse the jury’s verdict on the Federal Wiretap Act claim and vacate the 

related statutory damages for violating the Federal Wiretap Act. 

I. BACKGROUND

In 2013, David Daleiden, a long-time pro-life activist, started the Human 

Capital Project (“HCP”). Daleiden is well-known in pro-choice circles, and his 

name was on “no access” lists of individuals barred from entering Planned 

Parenthood conferences and affiliated health centers.2

 Daleiden partnered with two 

other long-time pro-life activists, Troy Newman and Albin Rhomberg, to start 

HCP. Newman operated Operation Rescue, which maintains a website that 

publicizes the names, photographs, and personal information of abortion providers. 

Rhomberg has worked on pro-life projects for more than four decades, including 

projects that publicize the names of abortion providers in several countries. 

In February and March of 2013, Daleiden circulated a proposal to Newman 

and Rhomberg outlining an undercover operation to infiltrate organizations, 

especially Planned Parenthood and its affiliates, involved in producing or 

1 In a separate memorandum disposition, filed simultaneously with this opinion, we 

address Appellants’ other grounds of appeal. 

2 In this Opinion, we use the term “pro-life” to describe Appellants because

Appellants refer to themselves using this term. Likewise, we use the term “prochoice” to describe Appellees because Appellees use that term. 
3 

procuring fetal tissue and to expose alleged wrongdoing through the release of 

“gotcha” undercover videos. In March 2013, Daleiden, Newman, and Rhomberg 

formed the Center for Medical Progress (“CMP”) to oversee their operation; 

Daleiden was the CEO, Newman the Secretary, and Rhomberg the CFO. To carry 

out their operation, Daleiden created a fake tissue procurement company, 

BioMax.3

 Daleiden filed BioMax’s articles of incorporation with the State of 

California in October 2013, signing the fictitious name “Susan Tennenbaum.” 

BioMax had a website, business cards, and promotional materials, but was not in 

fact involved in any business activity. Daleiden used the false name “Robert 

Sarkis” while posing as BioMax’s Procurement Manager and Vice President of 

Operations. 

Daleiden then recruited additional associates to participate in the scheme. 

Susan Merritt, another long-time pro-life activist who had previously participated 

in an undercover operation targeting abortion providers, posed as BioMax’s CEO

“Susan Tennenbaum.” Brianna Baxter, using the alias “Brianna Allen,” posed as 

3 Tissue procurement companies obtain human tissue samples, including fetal 

tissue from abortion providers, and provide them to medical researchers. Fetal 

tissue donation to medical researchers is legal under federal law. Federal law 

permits “reasonable payments associated with the transportation, implantation, 

processing, preservation, quality control, or storage of human fetal tissue.” 42 

U.S.C. § 289g-2(e)(3). 
4

BioMax’s part-time procurement technician. Adrian Lopez used his own name 

and posed as a BioMax procurement technician. 

To further the subterfuge, Daleiden created or procured fake driver’s

licenses for himself, Merrit, and Baxter. Daleiden modified his expired California 

driver’s license, typing “Robert Daoud Sarkis” over his true name. Using the 

internet, he paid for a service to produce fake driver’s licenses for “Susan 

Tennenbaum” (Merritt) and “Brianna Allen” (Baxter). Daleiden also had bank 

cards issued for the aliases Sarkis and Tennenbaum. 

To establish their credentials, BioMax “employees” attended several entrylevel conferences. In June 2013, “Robert Sarkis” attended the International 

Society of Stem Cell Research Annual Meeting in Boston. In September of that 

same year, “Susan Tennenbaum” and “Brianna Allen” attended the Association of 

Reproductive Health Professionals conference in Colorado as representatives of 

BioMax. Contacts from this meeting vouched for BioMax’s bona fides, permitting 

BioMax to register as an exhibitor at the National Abortion Federation (“NAF”) 

2014 Annual Meeting. Planned Parenthood Federation of America (“PPFA”) is a 

member of NAF, as are many of PPFA’s affiliates, providers, and staff. 

Daleiden, using Merritt’s alias “Susan Tennenbaum,” signed Exhibitor 

Agreements for the 2014 NAF conference on behalf of BioMax. Daleiden, Merritt, 

and Baxter all attended NAF’s 2014 Annual Meeting in San Francisco on behalf of 
5

BioMax, presenting their fake California driver’s licenses at check-in and posing 

as Sarkis, Tennenbaum, and Allen. All signed confidentiality agreements, that 

among other things, prohibited them from recording. However, they covertly

recorded during the entire conference. 

For over a year, Appellants Daleiden, Merritt, and Baxter (using their false 

names) and Lopez (using his real name), on behalf of BioMax, attended the 2015 

NAF Annual Meeting and three Planned Parenthood conferences held in Florida 

and Washington, D.C. At these conferences, Appellants often signed additional 

exhibitor or confidentiality agreements and secretly recorded persons with whom 

they spoke. 

Daleiden also repeatedly sought a meeting with Dr. Deborah Nucatola, to 

whom he had introduced himself at the 2014 NAF Annual Meeting; Dr. Nucatola 

was then the Senior Director of Medical Services at PPFA and an abortion provider 

in California. She eventually agreed to meet, and Daleiden and Merritt secretly 

recorded Dr. Nucatola throughout a two-hour lunch. Daleiden and Merritt repeated 

this same strategy with Dr. Mary Gatter, the Medical Director of Planned 

Parenthood Pasadena and San Gabriel Valley, Inc.: during a lunch meeting 

solicited by Daleiden, Daleiden and Merritt recorded Dr. Gatter without her 

knowledge. 
6

Daleiden and Merritt also used their conference contacts to secure visits to 

Planned Parenthood clinics in Texas and Colorado. At both, they posed as Sarkis 

and Tennenbaum and wore hidden cameras that recorded the entire time. 

On July 14, 2015, CMP started releasing videos that included footage from 

the conferences, lunches, and clinic visits Appellants had secretly recorded. 

Appellants portray themselves as journalists reporting important and newsworthy 

information, whereas Planned Parenthood argues that Appellants purposefully

conducted a smear campaign using illegal methods. 

In response to the release of the videos, the recorded individuals testified 

that they received a variety of threats. Planned Parenthood provided temporary 

bodyguards to several of the recorded individuals and even relocated one of the 

recorded individuals and her family. Planned Parenthood also hired security 

consultants to investigate Appellants’ infiltration and enhance the security of its

conferences. 

Planned Parenthood timely brought a civil action against Appellants in 

January 2016 seeking compensatory, statutory, and punitive damages for claims 

including violation of civil RICO, federal wiretapping law, state wiretapping laws, 

civil conspiracy, breach of contracts, trespass, and fraud. Planned Parenthood also 

sought injunctive relief prohibiting Appellants from carrying out similar future 

infiltrations. 
7 

After a six-week trial, the jury found for Planned Parenthood on all counts. 

The jury awarded Planned Parenthood compensatory and punitive damages, and

the district court later awarded nominal and statutory damages, resulting in a total

damages award of $2,425,084. 

The compensatory damages were divided into two categories: infiltration 

damages and security damages. The infiltration damages, totaling $366,873,

related to Planned Parenthood’s costs to prevent a future similar intrusion. They

included costs for assessing Planned Parenthood’s current security measures and 

exploring potential upgrades, reviewing and upgrading Planned Parenthood’s 

vetting of visitors and attendees at conferences, monitoring social media for 

potential threats, hiring additional security guards for Planned Parenthood’s

conferences, and improving the badging and identification systems at the

conferences. The security damages, totaling $101,048, related to Planned 

Parenthood’s costs for protecting their doctors and staff from further targeting by 

Appellants and from foreseeable violence and harassment by third parties. The 

security damages included costs for physical security and online threat monitoring 

for the individuals recorded in the videos that Appellants released. 

The district court also awarded Planned Parenthood limited injunctive relief 

against all Appellants except Lopez. On August 19, 2020, the district court denied 
8 

Appellants’ motion for judgment as a matter of law, a new trial, and to amend the 

judgment. Appellants timely appealed. 

II. STANDARD OF REVIEW

We review constitutional challenges de novo. Crime Just. & Am., Inc. v.

Honea, 876 F.3d 966, 971 (9th Cir. 2017). “We review de novo a judgment as a 

matter of law.” Spencer v. Peters, 857 F.3d 789, 797 (9th Cir. 2017). Judgment as 

a matter of law is appropriate when the evidence permits only one reasonable 

conclusion. Torres v. City of Los Angeles, 548 F.3d 1197, 1205–06 (9th Cir. 

2008). 

III. THE FIRST AMENDMENT 

“[G]enerally applicable laws 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.” Cohen v. Cowles Media Co., 501 U.S. 663, 669 

(1991).

4

 In Cohen, a campaign worker, Mr. Dan Cohen, provided two newspapers 

with information damaging to his candidate’s opponent. Id. at 665. Cohen 

revealed the information on the condition that his identity as the source be kept 

secret. Id. However, the newspapers subsequently published articles revealing

Cohen as the source of the damaging information, and Cohen was fired from the 

4 We express no view on whether Appellants’ actions here were legitimate 

journalism or a smear campaign because even accepting Appellants’ framing, the 

First Amendment does not prevent the award of the challenged damages. 
9 

campaign. Id. at 666. Cohen sued the newspapers seeking compensatory damages 

under a state promissory estoppel cause of action. Id. at 671. He argued that the 

newspapers’ publication of his name was a breach of promise, which caused him to 

lose his job and lowered his earning capacity. Id. In reasoning that the First 

Amendment did not bar the damages, the Supreme Court explained that “[i]t is . . . 

beyond dispute that ‘[t]he publisher of a newspaper has no special immunity from 

the application of general laws’” and “enforcement of such general laws against 

the press is not subject to stricter scrutiny than would be applied to enforcement 

against other persons or organizations.” Id. at 670 (quoting Associated Press v.

NLRB, 301 U.S. 103, 132 (1937)). 

We recently reiterated this holding, stating that “the First Amendment right 

to gather news within legal bounds does not exempt journalists from laws of 

general applicability.” Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1190 

(9th Cir. 2018). In Wasden, we examined an Idaho statute criminalizing entry into

or obtaining records of an agricultural production facility by force, threat, 

misrepresentation, or trespass; obtaining employment with an agricultural facility 

by force, threat, or misrepresentation with intent to cause harm; or entering and 

recording inside a non-public agricultural production facility without consent. Id.

at 1190–91. In response to facial First Amendment challenges, we held that the 

provisions criminalizing entry and recording violated the First Amendment
10

because the entry provision was overbroad and the recording provision was a 

content-based restriction that was unable to survive strict scrutiny. Id. at 1194–98, 

1203–05. Conversely, the provision criminalizing obtaining records did not

facially violate the First Amendment because it protected the facility owners’ 

property rights from legally cognizable harm. See id. at 1199–1201. The 

employment provision, meanwhile, complied with the First Amendment because 

the Supreme Court had previously held that such speech was unprotected by the 

First Amendment, and the provision was not aimed at suppressing a specific 

viewpoint. Id. at 1201–02 (citing United States v. Alvarez, 567 U.S. 709, 723 

(2012)). Wasden, therefore, repeated that facially constitutional statutes apply to 

everyone, including journalists.5

 

Wasden was not novel within the Ninth Circuit. More than fifty years ago, 

we held that journalists could not use subterfuge to gain entry into a private home 

and secretly record an individual suspected of committing a crime. See Dietemann

v. Time, Inc., 449 F.2d 245, 247, 249 (9th Cir. 1971). We noted that “[t]he First 

Amendment has never been construed to accord newsmen immunity from torts or 

crimes committed during the course of newsgathering. The First Amendment is 

not a license to trespass, to steal, or to intrude by electronic means into the 

precincts of another’s home or office.” Id. at 249. 

5 Appellants raise no facial First Amendment challenges. 
11

Adhering to Cohen, Wasden, and Dietemann, we repeat today that 

journalists must obey laws of general applicability. Invoking journalism and the 

First Amendment does not shield individuals from liability for violations of laws 

applicable to all members of society. None of the laws Appellants violated was

aimed specifically at journalists or those holding a particular viewpoint. The two 

categories of compensatory damages permitted by the district court, infiltration 

damages and security damages, were awarded by the jury to reimburse Planned 

Parenthood for losses caused by Appellants’ violations of generally applicable 

laws. As required by the Supreme Court in Cohen, and our court in Wasden and 

Dietemann, Appellants have been held to the letter of the law, just like all other 

members of our society. Appellants have no special license to break laws of 

general applicability in pursuit of a headline. 

Appellants are incorrect in arguing that the infiltration and security damages 

awarded by the jury are impermissible publication damages. In Hustler Magazine, 

Inc. v. Falwell, the Supreme Court held that a public figure could not recover 

damages for emotional distress or reputational loss caused by the publication of an 

ad parody about him absent a showing of falsity and actual malice. 485 U.S. 46,

56 (1988). However, the facts before us are distinguishable from Hustler 

Magazine. The jury awarded damages for economic harms suffered by Planned 

Parenthood, not the reputational or emotional damages sought in Hustler 
12

Magazine. See id. at 50; see also Cohen, 501 U.S. 663 (1991) (distinguishing 

between economic damages and “damages for injury to [one’s] reputation or his 

state of mind”); Veilleux v. NBC, 206 F.3d 92, 127–29 (1st Cir. 2000) (same). 

Further, Planned Parenthood would have been able to recover the infiltration 

and security damages even if Appellants had never published videos of their 

surreptitious recordings. Regardless of publication, it is probable that Planned 

Parenthood would have protected its staff who had been secretly recorded and 

safeguarded its conferences and clinics from future infiltrations by Appellants and 

third parties. Appellants’ argument that, absent a showing of actual malice, all 

damages related to truthful publications are necessarily barred by the First 

Amendment cannot be squared with Cohen. In Cohen, the Supreme Court upheld 

an economic damage award reliant on publication—damages related to loss of 

earning capacity—even though the publication was truthful and made without 

malice. See Cohen, 501 U.S. at 671. 

Our decision does not impose a new burden on journalists or undercover 

investigations using lawful means. From the beginning of their scheme, 

Appellants engaged in illegal conduct—including forging signatures, creating and 

procuring fake driver’s licenses, and breaching contracts—that the jury found so 

objectionable as to award Planned Parenthood punitive damages. Journalism and 

investigative reporting have long served a critical role in our society. See Wasden,
13

878 F.3d at 1189. But journalism and investigative reporting do not require illegal 

conduct. In affirming Planned Parenthood’s compensatory damages from 

Appellants’ First Amendment challenge, we simply reaffirm the established 

principle that the pursuit of journalism does not give a license to break laws of 

general applicability. 

IV. THE FEDERAL WIRETAP ACT 

At trial, Planned Parenthood alleged that Appellants recorded Planned 

Parenthood’s staff forty-two separate times at conferences, lunches, and health 

clinics without their consent in violation of the Federal Wiretap Act, 18 U.S.C. § 

2511(2)(d). Planned Parenthood argued that the criminal or tortious purpose 

behind these recordings was to further Appellants’ civil RICO enterprise with the 

ultimate goal of harming or destroying Planned Parenthood. Planned Parenthood 

also contended that Appellants’ civil RICO scheme served the same purpose: 

harming and destroying Planned Parenthood.6

 

The jury agreed with Planned Parenthood and determined that Appellants 

had illegally recorded Planned Parenthood staff in all forty-two of the pled 

6

 “To state a civil RICO claim under 18 U.S.C. § 1964(c), a plaintiff must allege

(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity

(known as predicate acts) (5) causing injury to the plaintiff’s business or property.” 

Abcarian v. Levine, 972 F.3d 1019, 1028 (9th Cir. 2020) (internal quotations and 

citation omitted). Planned Parenthood alleged that Daleiden’s production and 

transfer of the three fake driver’s licenses, in violation of 18 U.S.C. § 1028(a)(1) 

and (a)(2), served as the civil RICO predicate acts. 
14

instances. The jury awarded Planned Parenthood damages based on these 

recordings, and, pursuant to the jury’s findings, the district court awarded statutory 

damages to various Planned Parenthood entities for these same violations.7

 

On appeal, Appellants contend that they could not have violated the Federal 

Wiretap Act because their violation of civil RICO is not a sufficient criminal or 

tortious purpose to impose liability under § 2511(2)(d). We agree. 

The Federal Wiretap Act generally prohibits any person from intentionally 

recording an oral communication. 18 U.S.C. § 2511(1)(a). One exception to this 

broad prohibition is that a person may record a conversation in which he or she is a 

party unless the “communication is intercepted for the purpose of committing any 

criminal or tortious act in violation of the Constitution or laws of the United States 

or of any State.” § 2511(2)(d). 

A recording has a criminal or tortious purpose under § 2511(1) when “done 

for the purpose of facilitating some further impropriety, such as blackmail.” 

Sussman v. Am. Broad. Companies, Inc., 186 F.3d 1200, 1202 (9th Cir. 1999). 

This criminal or tortious purpose must be separate and independent from the act of 

7 The jury awarded Planned Parenthood approximately $100,000 in compensatory 

damages related to the Federal Wiretap Act claim, and the district court awarded 

statutory damages of $90,000. Additionally, the jury awarded Planned Parenthood 

$870,000 in punitive damages for claims of fraud, trespass, breach of Maryland 

wiretapping law, and breach of federal wiretapping law. The jury did not specify 

which claims the punitive damages related to.
15

the recording. Id. (“[T]he focus is not upon whether the interception itself violated

another law; it is upon whether the purpose for the interception—its intended

use—was criminal or tortious.”) (citation omitted). Put another way, the

independent purpose must be “essential to the actual execution of an illegal wiretap

. . . [and] directly facilitate the criminal conduct.” United States v. McTiernan, 695 

F.3d 882, 890 (9th Cir. 2012); see also Caro v. Weintraub, 618 F.3d 94, 99–100 

(2d Cir. 2010). The recording party must also have the independent criminal or

tortious purpose at the time the recording was made. See Sussman, 186 F.3d at

1203; see also Caro, 618 F.3d at 99 (“There is a temporal thread that runs through 

the fabric of the statute and the case law. At the time of the recording the offender 

must intend to use the recording to commit a criminal or tortious act.”).

With this understanding, it is clear that Appellants’ violations of civil RICO 

could not have served as the criminal or tortious purpose required by § 2511(2)(d). 

Planned Parenthood alleged that the criminal or tortious purpose of Appellants’ 

civil RICO violation was to destroy Planned Parenthood. Planned Parenthood

similarly argued that the purpose of the secret recordings was to further 

Appellant’s civil RICO scheme, which sought to destroy Planned Parenthood. 

However, § 2511(2)(d) requires that the criminal or tortious purpose be

independent of and separate from the purpose of the recording. Planned 

Parenthood runs afoul of this requirement by reusing the same criminal purpose—
16

furthering the civil RICO scheme to destroy Planned Parenthood—as both the 

purpose of the civil RICO claim and the independent criminal or tortious purpose 

of § 2511(2)(d).8

 And, Planned Parenthood’s argument is circular: according to 

Planned Parenthood, the civil RICO conspiracy is furthered by the recordings, and 

the recordings themselves further the ongoing civil RICO conspiracy. Such 

reasoning is not permitted by § 2511(2)(d). See Sussman, 186 F.3d at 1202. 

V. CONCLUSION

For the above reasons, we affirm the award of infiltration and security 

damages and the award of punitive damages. We reverse the jury’s verdict on the 

Federal Wiretap Act claim and vacate the related statutory damages awards.

9

 

AFFIRMED IN PART, REVERSED AND VACATED IN PART.

8 Planned Parenthood briefly suggests that Appellants use of the secret recordings 

for fundraising can serve as an alternative independent purpose under § 2511(2)(d). 

However, fundraising is not a criminal or tortious purpose. 9 Other than the statutory damages, all of Planned Parenthood’s damages related to 

the Federal Wiretap Act are duplicative of damages affirmed in the 

simultaneously-filed memorandum disposition. This opinion vacates the statutory 

damage awards related to the Federal Wiretap Act.