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Planned Parenthood Asked Journalists to Agree to NDAs to Attend a Media Happy Hour. Here's Why That's a Problem.

The organization said sending the non-disclosure agreement was a mistake. It was the second time VICE News had been asked to agree to one.

by Carter Sherman
Nov 22 2019, 6:26pm

Planned Parenthood asked reporters attending a happy hour for media professionals this week to abide by non-disclosure agreements, a request that can stifle reporters’ ability to do their job.

Planned Parenthood later said that the request was a mistake, but it was the second time Planned Parenthood had asked me to sign a non-disclosure agreement. In 2018, when I was signing up to cover the organization’s “Power of Pink” volunteer training in Detroit, I realized that the registration included signing an NDA that would restrict me from sharing “confidential information.”

That essentially included anything I learned “through any means of communication or observation” from anyone affiliated with Planned Parenthood, which has positioned itself as a bulwark against an administration that regularly attacks press credibility.

After I pushed back on the NDA attached to the happy hour, scheduled for Wednesday, and said that I’d be writing a story about the organization’s use of the legal agreement for reporters, a Planned Parenthood staffer sent an email to all journalists registered for the event saying none of them would have to comply with an NDA. That email said the NDA, which was sent less than 48 hours before the happy hour and applied to anyone who showed up, was sent in error by a new employee.

I’d pushed back on the NDA for the “Power of Pink” event, too. Initially, a Planned Parenthood staffer assured me that the agreement included “allowances for journalists to report.” They ultimately let me attend without agreeing to it, but it took a few days and the organization’s tech team had to build a special online backdoor to bypass that part of the registration.

Planned Parenthood told VICE News it is not their policy to require NDAs of reporters covering the organization.

READ: Planned Parenthood head says she was ousted in a ‘secret meeting’

"Planned Parenthood is proud of the work we do to ensure that journalists and editors have access to the incredible staff, patients, services, and education that we provide,” Erica Sackin, senior director of communications for Planned Parenthood Federation of America, told VICE News in an email. “We pride ourselves on our transparency, and our support for freedom of the press as a pillar of our democracy.”

But she did concede that the organization had asked reporters for NDAs, but characterized those request as mistakes.

"That said, our interactions with reporters around this have been less than perfect," Sackin said. "It is not — and has not been — our official policy to require any reporter to sign an NDA that would prevent them from reporting an event we’re asking them to cover, or for informal off-the-record events. In instances when we have asked reporters to do so, it has been the result of miscommunication and misunderstanding between staff, or of staff members out of an abundance of caution enforcing rules that should not apply to journalists.”

Planned Parenthood does generally ask non-journalists who attend its events to sign non-disclosure agreements, because it has very real privacy and security fears: The organization is public enemy number one in the eyes of abortion opponents, and it it has seen activists use fake identities to sneak into its gatherings.

In 2015, after the anti-abortion Center for Medical Progress released videos of Planned Parenthood workers who’d been secretly filmed, Planned Parenthood was buffeted by accusations that it illegally sold parts of aborted fetuses for profit. Multiple congressional and state investigations found no evidence to support those allegations, and Planned Parenthood has said that the Center’s videos were deceptively edited. Last week, a federal jury in California awarded Planned Parenthood more than $2 million in damages in a case involving the videos.

The fallout also travelled far beyond courtrooms and the Capitol. The year the videos were released, abortion providers across the country reported receiving 94 death threats — up from just one in 2014, according to the National Abortion Federation.

READ: Clinics are facing an impossible choice because of Trump's 'gag rule'

"I completely understand why they're doing it,” said Jack Doppelt, a professor at Northwestern University’s Medill School of Journalism. “They, I think, trust the media. They don’t trust the fake media. And they’ve been burned."

But, he added, “That doesn’t mean that the journalist should be signing the non-disclosure agreements.”

Reporters, including those at VICE News, regularly agree to conversations that are “off the record” or “on background,” meaning, respectively, that the journalists can’t print what they’ve learned or can only publish it without attribution. All of those negotiations can pose ethical dilemmas, according to Kathleen Bartzen Culver, director of the Center for Journalism Ethics at the University of Wisconsin-Madison. And asking reporters to sign NDAs before they attend events is also not unheard-of, particularly in the tech industry, Culver said.

Still, these requests are uncommon. And agreeing to speak off the record is not the same as signing a legal document.

“It’s easier to punish someone,” Culver said of NDAs. "A reporter thinks, 'Ugh, I signed that NDA; I've gotta be extra careful, I’ve gotta be on the watch.' It’s someone saying, ‘I have a tool of enforcement,’ and then that may make you less courageous."

Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, agreed.

“Whether it’s an association like Planned Parenthood or a corporation, it’s just giving them the ability to essentially control the narrative,” Kirtley told me of asking journalists to sign NDAs. “Putting aside the legitimate concerns that they may have about subterfuge and so forth, for me, the bottom line is organizations like this cannot expect the news media to essentially be an extension of their public relations arm.”

On Wednesday morning, I called a Planned Parenthood staffer to say I wouldn’t be attending their happy hour that night with an NDA hanging over my head. They told me they’d look into it but that having attendees agree to NDAs was standard policy at all Planned Parenthood events.

READ: Planned Parenthood may lose tens of millions in funding on Monday thanks to the Trump administration

That’s also what I was told in 2018, when I emailed a different Planned Parenthood employee, with whom I’d been speaking about attending the convention, and told them I felt uncomfortable signing the NDA.

The staffer promised to ask the legal team if I could get around it. But, they added, “Our policy is to have all people who enter our event spaces people sign an NDA (with allowances for journalists to report) so we would need sign off from our legal department to register you without one.”

What does “allowances for journalists to report” mean? I asked.

“I was just referring to the fact that [the] wording of the NDA doesn't preclude journalists from speaking to folks on the record,” the staffer said. “It's not written as such specifically for journalists, but there's a section on rightfully receiving confidential information from a Third Party.”

When I asked VICE News' lawyer for his help understanding the NDA’s restrictions, he told me that despite those reporting “allowances," I would still likely not be able to report on any information I learned from Planned Parenthood staff or associates — a restriction that could drastically hinder my reporting. Both the NDA I saw in 2018 and the one this week include that language.

Trevor Timm, executive director of the Freedom of the Press Foundation, said signing NDAs can have a chilling effect on journalists’ speech.

“You wouldn’t know for sure if the information you heard from some third party, at this party, was covered. You’re going to have to spend [time] with your legal counsel,” Timm said. “It’s going to be very stressful for you, and, you know, for a lot of people they’re just going to be like, ‘They’re not worth it.’ And that’s what these legal instruments often are used for, for those kind of grey-area situations where the company is not going to sue you but they know just by having you sign this, it will potentially keep you quiet.”

A former Planned Parenthood staffer said Friday that at the time of the 2018 “Power of Pink” convention, similar invitations that included non-disclosure agreements had been sent to other journalists, for other events. The staffer also said Friday that in their experience, reporters hadn’t pushed back on the NDA and had published stories without any problems.

The backdoor that Planned Parenthood created to register me for the convention was used — at least for a time — to register journalists for other events, according to the staffer.

But that policy wasn’t formalized, they said.

In her email, Planned Parenthood’s Sackin reiterated that it had been a mistake to ask reporters to sign a NDA. “We’re taking this opportunity to clarify across all of our internal teams the event requirements for both general attendees and for members of the press,” she said.

Cover: A clinic of Planned Parenthood in Manhattan, New York, US, 15 December 2016. Photo by: Stephanie Ott/picture-alliance/dpa/AP Images

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