Colorado’s second-highest court on Thursday agreed the former chief medical officer for Planned Parenthood of the Rocky Mountains was correct to label a set of heavily-edited undercover videos as misleading, and her comments did not amount to defamation of the California-based abortion opponent who recorded the footage.

A three-judge panel of the Court of Appeals joined the Jefferson County judge who previously watched the unedited, 2.5-hour recording of Savita Ginde in Planned Parenthood’s Colorado office, and compared it to The Center for Medical Progress’ edited, annotated videos that spread online. All four judges agreed the edited videos portrayed something the raw footage did not.

Specifically, the center and its founder, David Daleiden, made it seem as if Ginde was proposing to sell the tissue of aborted fetuses for profit, in violation of federal law. Therefore, wrote Judge Rebecca R. Freyre for the appellate panel, Ginde could not be liable for defamation when she publicly criticized the way Daleiden had edited the videos.

“Based on our comparison, we conclude that the gist of Dr. Ginde’s statements is true – that the Raw Footage was deceptively edited to create the Edited Videos and to convey the false impression that Dr. Ginde and PPRM were engaged in the illegal sale of fetal tissue for profit,” Freyre wrote in the Feb. 16 opinion.

“Our client, Dr. Ginde, is gratified, but not surprised, that the Court of Appeals correctly affirmed the trial court’s well-reasoned ruling dismissing the frivolous libel claim against her,” said Steve Zansberg, one of Ginde’s attorneys, following the ruling.

Daleiden’s clandestinely-recorded videos of Ginde and other Planned Parenthood employees prompted congressional and state investigations into the alleged illegal sale of fetal tissue beginning in 2015. Officials, including in Republican-led states, found no evidence to back up those allegations about Planned Parenthood.

The videos did have an impact in other ways. The man accused of murdering three people in a late-2015 massacre at a Colorado Springs Planned Parenthood facility subsequently referenced “selling baby parts and all the other crooked deals” during an appearance in federal court.

Several months before the shooting, in April 2015, Daleiden, who identifies as an “investigative journalist,” sat down with Ginde, who was the vice president and chief medical officer for PPRM. He and an associate posed as representatives of a company seeking to procure fetal tissue for research.

Although federal law prohibits the acquisition of fetal tissue for profit, the use of such tissue in research is lawful, provided it meets the legal criteria.

Subsequently, the Center for Medical Progress released two short videos, edited down from the 2.5-hour interaction with Ginde at Planned Parenthood in Colorado. The videos purported to show her “pricing” fetal tissue for a profit and talking about fetal organs as “a baby.” 

“Hold Planned Parenthood accountable for their illegal sale of baby parts,” read on-screen text at the end of one video.

Ginde subsequently published a book in which she addressed “these fictional videos” with words “actually dubbed in.” She also gave a TEDx Talk in which she spoke about the effect the “completely fake” videos had on her life, forcing her family to leave its home amid safety threats.

“On Nov. 27, 2015, my heart was broken and my dream crushed as a deranged gunman entered into the Colorado Springs Planned Parenthood health center and went on a five-hour shooting rampage that resulted in the murder of three people, injuries to at least nine, and the scarring of many of us for life,” she said. “We were advised that similar violence could be planned for our home. And so that sealed the deal. We never returned.”

Daleiden and the Center then sued Ginde, alleging defamation. Daleiden and his video editor submitted statements asserting they did not “add in any extraneous audio or visual content” to the raw footage or otherwise “falsely attribute” statements to Ginde.

Ginde moved to dismiss the claims under Colorado’s “anti-SLAPP” law, which stands for strategic lawsuits against public participation. The 2019 law allows judges to quickly dispose of lawsuits that are based on First Amendment-protected activity, specifically the rights to speech and to petition the government.

In late 2021, District Court Judge Diego G. Hunt agreed to dismiss the case after watching the edited and unedited videos.

“(I)t is beyond dispute that the plaintiffs edited the two hours and forty minutes of video footage that they secretly recorded while posing as representatives of a fetal tissue procurement company in such a way as to falsely suggest that Dr. Ginde and PPRM were engaged in the illegal sale of aborted fetal tissue for profit,” he wrote.

Daleiden and the Center appealed, objecting to Hunt’s evaluation of the raw footage in reaching his decision. However, the plaintiffs’ attorney ultimately conceded “it doesn’t matter” whether the footage was part of the court record or not.

After the appellate panel reviewed the videos, it agreed they showed selective editing on CMP’s part.

“The Raw Footage shows that Dr. Ginde and Daleiden were referencing the reasonable processing fees that PPRM would be entitled to receive for the specific tissue procurement,” wrote Freyre. “The Raw Footage contains no evidence of a criminal act, nor has Daleiden directed us to any record evidence of a criminal act.”

An attorney for Daleiden and CMP noted Ginde had conceded the audio portion of the recording was “not manipulated,” and told Colorado Politics her clients are evaluating whether to appeal.

The federal appeals court based in New York City dismissed a similar defamation lawsuit last year by Daleiden and the Center against Planned Parenthood. In 2019, a federal jury in California decided Galeiden and the Center for Medical Progress owed nearly $2.3 million for violating the law in order to record their videos.

The case is Daleiden et al. v. Ginde.