The Perils of Over-Prosecuting Speech

David R. Daleiden and Melissa Click are both villains in the culture war. Both may have broken the law. But there’s no need to charge, try, or jail either one.

Devon Anderson, the district attorney in Harris County, Texas, speaks at a press conference in August 2015. Anderson announced that a grand jury has indicted two anti-abortion activists on Monday. (Pat Sullivan / AP)

On the left, David R. Daleiden is reviled. The anti-abortion activist infiltrated Planned Parenthood, where he took hidden video. He hoped to expose the organization’s treatment of fetal tissue that it acquires after performing abortions. Melissa Click is just as much a villain on the right. The communications professor was caught on video calling for “some muscle” to help her intimidate a photographer. She violated his First Amendment right to snap photos in a public area.

Lots of criticism has been aimed at these culture-war villains. But whether you believe that either behaved inexcusably or are inclined to defend one or both, it should be clear that trying to convict them in the criminal-justice system is the wrong resolution.

Both have been charged with crimes. They may well be found guilty. And in both cases, the charges brought against them should be dropped by the relevant prosecutors.

Not because they’re beyond reproach.

Not because they are necessarily “not guilty.”

But because there’s no compelling reason to involve the courts in either matter. In a country that incarcerates too high a percentage of its citizens, where police struggle with a backlog of unsolved murders and uninvestigated rapes, where innocents sit in jail for months awaiting trial, criminally trying either of these two is a waste.

I excoriated Click at the time of her transgression. She deserved to be censured by the University of Missouri, put on probation, and criticized by her colleagues. Had the photographer sued her, I’d have rooted for a small award in his favor. Here’s her criminal problem:

A university police department warrant, filed in municipal court by the Columbia city prosecutor, Steve Richey, said that on Nov. 9, the assistant professor, Melissa A. Click, assaulted a videographer “by grabbing at his camera with her hand and attempting to knock it from his grasp” and “by calling out and asking for other people in the area at the time to forcefully remove him.”

Even assuming she’s technically guilty, no physical harm came to the photographer, his camera is fine, it isn’t as if Click is likely to reoffend, and it’s hard to imagine other campus photographers suffering due to a failure to prosecute. With all the dangerous fights, scuffles, donnybrooks, fracases, melees, rows, skirmishes, and brouhahas in which no charges are filed, this is the one that’s going to court?

All that said, Click faces a misdemeanor that carries a maximum 15-day jail sentence. It’d best be handled outside the criminal-justice system, but even the maximum sentence would be less time than lots of innocents spend in jail awaiting trial.

David R. Daleiden, the anti-abortion activist, faces a felony charge and a staggering maximum sentence of more than 20 years in prison. Even those who hate his activism should be alarmed by that fact, given the nature of his alleged crimes.

Time explains how he ended up here:

A grand jury in Harris County, Tex., indicted Daleiden, 27, on two counts: one second-degree felony charge of tampering with a governmental record, and a misdemeanor charge related to the prohibition of the purchase and sale of human organs. Under Texas law, the felony charge carries a penalty of up to 20 years in prison.

The allegations stem from a visit Daleiden made last April to the Houston offices of Planned Parenthood Gulf Coast, an affiliate housed in a gleaming new building of blue-tinted glass near the University of Houston. At this point, Daleiden was nearing the end of a 30-month caper, which saw him train a team of undercover activists to help him infiltrate Planned Parenthood by posing as representatives of a fake tissue-procurement company. The goal was to surreptitiously record videos that could prove the organization had illegally sold fetal tissue for profit.

Daleiden and an associate breezed past the building’s metal detector, and allegedly presented as identification a phony California drivers license with the name of an alias, Robert Sarkis. In normal cases, the use of a fake ID would not warrant felony charges; a grand jury would not, for example, throw the book at an underage kid using a phony government ID to pick up a six-pack of beer. But Texas state law includes a provision that elevates this transgression—knowingly using a fake government document—to a second-degree felony if “the intent is to defraud or harm another.” The grand jury decided that Daleiden’s goal was to do just that, by using his cover story to make a covert recording designed to damage Planned Parenthood’s reputation.

Let’s again presume, for the sake of argument, that he is technically guilty—although he maintains that he violated no laws. That doesn’t make the prosecution just. The law prohibiting the solicitation of human organs for purchase was clearly intended to prevent a black market in such things, not to punish people who are so against the sale of human organs that they falsely represent themselves as buyers in hopes of discovering and shutting down illegal activity.

It seems bizarre that the law against buying human organs is the misdemeanor here, while using the fake ID is the felony. Setting that aside, consider the logic of upping the penalty for using a fake ID to a felony when its use didn’t even facilitate a crime that crossed the felony threshold.

Says Kevin Drum, a critic of the Planned Parenthood videos, at Mother Jones:

As much as I dislike what Daleiden did… Texas law seems to make it almost inherently illegal for a reporter or anyone else to try to expose illicit activity. That's often going to require a solicitation to commit a crime; it's frequently going to require some kind of bogus ID; and it's pretty much always done with an intent to harm. But if you put those together, you've automatically got a felony, even if the target of your investigation turns out to be a mafia front.

There’s a growing majority in America that believes the country jails too many people, that its prosecutors are sometimes too aggressive, that its penalties are sometimes too harsh.

To end those excesses, criticism is going to have to expand beyond the drug war (where it is much deserved) to other sorts of cases. The Click and Daleiden cases are both needless prosecutions of people who pose no threat to the public; and the latter is a striking example of the potential punishment not fitting the alleged crime.

The charges against both should be dropped.