MOORLACH UPDATE — AB 1671 — September 2, 2016

It’s not too often that I agree with both the American Civil Liberties Union (ACLU) and the LA Times Editorial Board. But, during the final hours of Session, I did. See "Editorial: New bill to protect Planned Parenthood is bad for whistleblowers" (http://www.latimes.com/opinion/editorials/la-ed-planned-parenthood-video-bill-20160831-snap-story.html).

I’ll save my thoughts about how the Legislature operates during its final minutes for another time. But, voting on a bill that appears so late in the game is rather aggravating. The content of one bill, AB 1671, was even more frustrating. A "messenger" reveals an inconvenient truth and instead of addressing the horrific matter, the Legislature goes after future "messengers." You can’t make this up.

I stood up on the Senate Floor and simply stated three sentences. The final one was "I urge a ‘no’ vote on AB 1671." The first two are provided in the Courthouse News Service piece below. This matter received significant media attention, but this piece seems to address the topic in a thorough manner and I will spare you a lengthy UPDATE.

California Legislature Makes Abortion Sting Videos Illegal

By NICK CAHILL

SACRAMENTO, Calif. (CN) — After a flurry of last-minute amendments addressing free-speech concerns, the California Legislature late Wednesday approved a Planned Parenthood-sponsored bill that criminalizes the distribution of secretly recorded conversations with any health care provider.

Lawmakers approved the contentious bill only after the authors removed broad language that could have implicated journalists and media groups for distributing and publishing — but not participating in — undercover videos.

Planned Parenthood sponsored the bill after sting videos showing doctors discussing fetal tissue sales with fake buyers were released last year.

Assembly Bill 1671 now goes to Gov. Jerry Brown’s desk for final approval after clearing the Senate 26-13 on a party-line vote.

In a victory for California journalists and lobbying groups such as the California Newspaper Publishers Association, lawmakers agreed to add language exempting journalists from criminal prosecution as long as they aren’t involved in the illegal recordings. However, because AB 1671 creates a new crime, opens media outlets up to potentially damaging and often exhausting civil lawsuits.

While the publishers association removed its opposition in the days leading up to Wednesday’s legislative deadline, the Planned Parenthood bill still contains potential landmines for journalists, according to Nikki Moore, legal counsel for the publishers association.

"I think we achieved the goal of removing that fear for reporters and editors that they’re going to be captured in criminal liability by this bill," Moore said. "The civil question is a little fuzzier because any person can bring an action and any person can name the media even if they don’t do so rightfully."

After clearing the Assembly in May, the bill by Assemblyman Jimmy Gomez, D-Los Angeles, faltered in the Senate.

Civil liberty groups such as the Electronic Frontier Foundation and the American Civil Liberties Union of California joined the publishers association in lobbying for structural changes to the bill. The opponents warned the bill could have a "chilling effect" on free speech and dissuade journalists from covering important issues due to the threat of criminal and civil penalties.

In order to sway enough support ahead of Wednesday’s Senate floor vote, Gomez was forced to cooperate with the opponents and agreed to remove the criminal implications for journalists. He amended the bill seven times, including three times in August.

State Sen. Hannah-Beth Jackson, D-Santa Barbara, introduced the bill as being vital to protecting Planned Parenthood employees from the onslaught of threats that followed the notorious undercover videos.

"The nation is looking to California to take the lead on protecting access to care and to the doctors who provide that access," said Jackson. "This measure will protect reproductive health doctors from violence and intimidation."

Other senators argued the bill was an overreaction to the Center for Medical Progress videos and noted that secretly taping conversations in California is already illegal.

"When ’60 Minutes’ uses a hidden camera and discovers a unique story, it’s called outstanding journalism. But when a private citizen does it and unmasks a very, very unpleasant truth, it’s a call for legislation," state Sen. John Moorlach, R-Orange County, said.

Republican state Sen. Joel Anderson said the bill is designed to unduly "protect an industry that destroys life" and that the Legislature is "rushing to ensure that [reproductive health doctors] can operate in secrecy."

The bill’s fate is in the hands of Brown, who has liberally vetoed bills that create new criminal penalties during his fourth term in office. He has 30 days to act on AB 1671.

The publishers association will cease lobbying against the bill while the ACLU said it’s still reviewing the Aug. 30 amendments.

If Brown signs the bill, the new law is apt for legal challenge, Moore predicted.

"If the governor signs this law a court will then have to decide whether this is narrowly tailored," Moore said.

This e-mail has been sent by California State Senator John M. W. Moorlach, 37th District.

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