Judge Bars Anti-Abortion Group From Releasing Video… Raising Serious First Amendment Questions

from the have-you-heard-of-prior-restraint dept

What is it with judges and prior restraint lately? A judge in a Los Angeles Superior Court has issued a temporary restraining order blocking an anti-abortion group from releasing a video. And, yes, obviously, anything involving abortion is going to be controversial, no matter what your stance on the issue is — and this also involves the same group that made plenty of headlines recently over some other videos involving Planned Parenthood. I’m hoping that folks here will pay attention to the First Amendment issue, rather than get into any sort of ideological argument over the parties involved or their campaigns because you’re not going to convince anyone, no matter what side you’re on, and you’re likely to just piss everyone else off — so leave those debates for other sites please.

Instead, the real question here is whether or not a court can actually do this. As per usual, Popehat has a good post detailing why this is most likely unconstitutional prior restraint, but might not be. Kinda. Sorta. Barely.

You can read the filing for the restraining order (h/t to Adam Steinbaugh who dug out the complaint), which comes from a life sciences company named StemExpress, and makes all sorts of claims, which can basically be summed up as “we thought our conversations were private!” And you can read the actual temporary restraining order, which is much more limited than what StemExpress requests.

It appears the crux of the argument is (1) that California is a two party consent state for recordings (which is stupid, but that’s another issue for another day) and (2) the representatives for the faux company who were actually a part of this group that set up the meeting signed a non-disclosure agreement. The first part probably doesn’t much matter for the question of the restraining order (it absolutely could lead to other legal issues and problems for the group that made the recording), as it’s still a form of prior restraint. The second issue, however, is at least a bit more compelling because one could make an argument that the group that made the recording proactively waived their First Amendment rights in signing that agreement — and thus the court was effectively enforcing the agreement that the parties had agreed to themselves.

Still, as Popehat notes, there is woefully little discussion of the First Amendment/prior restraint questions:

Remarkably, StemExpress’ TRO application contains no prior restraint analysis whatsoever. Its sole concession to the First Amendment is an argument that (1) this isn’t a First Amendment violation because it’s an illegal recording, and (2) it’s not a First Amendment violation because the defendants are free to speak or write about what happened at the meeting, they just can’t release the recording. We don’t have a transcript of the hearing, and we don’t know what other arguments the court may have considered, but this is troubling.

In my opinion, StemExpress could have made a decent argument if it had focused on the apparent fact that CMP signed nondisclosure agreements and then violated them. First Amendment rights are broad, but can be deliberately waived. That’s why confidentiality and nondisclosure agreements are often enforceable. While the state of the law isn’t perfectly clear, there’s a colorable argument that threatened breach of a nondisclosure agreement may be a basis for prior restraint if the underlying confidentiality interest is strong enough. It’s not a bulletproof argument, but it’s much better than ignoring the prior restraint issue entirely.

In sum: if the court based the prior restraint on a violation of California’s secret-recording law, I think it probably violates the First Amendment. But the order might be sustainable because CMP engaged in the dubious practice of signing a pledge of confidentiality with the intent of breaking it.

Of course, Popehat also notes that if the group already gave the video to someone else — such as a journalist — the court can’t block that group from releasing it, as that is definitely prior restraint.

In short, chances are that this video is going to get out no matter what eventually — and to some extent, this lawsuit and request for a restraining order is only likely to draw more attention to the whole thing in the first place (and the fact that StemExpress doesn’t want it to come out).

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Comments on “Judge Bars Anti-Abortion Group From Releasing Video… Raising Serious First Amendment Questions”

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Roger Strong (profile) says:

Re: ha ha ha

That’s bad advice for activists.

Years ago a friend took a temporary position in an organization in Alaska, filling in for someone who went on vacation. An organization that received both public money and donations.

She discovered that the person she was filling in for was embezzling. While there was no question about being public and open and honest about the crime, they naturally didn’t want a media circus.

This was just after Exxon Valdez, and they were able to get some advice from the publicity firm sent to fight the disaster. (The public relations disaster.)

The advice was to hold a press conference and divulge ALL the information, all at once. It would make big headlines, but only once. The story could only get so much coverage on day one, and after that it was old news.

Any new information trickling out later, however minor, would generate new headlines and stories. The scandal would go on. But with nothing new to report, the press would simply stop reporting on the story.

Snowden and WikiLeaks know this. Release a hundred documents with a hundred important revelations, and it gets reported as one (1) story. Only the top three revelations mentioned. Forgotten in two days. Release them in batches, and you keep getting headlines.

KRA says:

Release the videos

Putting my ideology aside, this kind of “reporting” is becoming more relevant as traditional media cuts back on investigations. I would never question Ken White’s legal take on things, but as a consumer, I like citizen journalism–whether I agree with the motives or not.

From a strategic standpoint, Planned Parenthood or some surrogate should run some offense here and talk up the stem cell research angle. It always amazes me how conservatives can proudly defend outrageous, backward positions on issues while liberals apologize and run from reasonable and logical positions.

Data indicate that the more people learn about embryonic stem cell research, the more they like it. So talk it up. If PP gathers embryonic tissue for research, they need to own it and tell people why it makes more sense than throwing it away. Running to court to try to get a judge to shut the other guys up is a terrible strategy. Mike is right that the video is going to get out regardless.

Mason Wheeler (profile) says:

Re: Release the videos

the more people learn about embryonic stem cell research, the more they like it.

That depends on what they’re learning. Last I heard–and admittedly this was a few years ago–despite all the research that had been done, and all the endless talk about how much “promise” embryonic stem cell research holds, it has never actually produced a single viable treatment, and even if it did, it would carry with it a lot of the same baggage as donor transplants do. (Rejection and the necessity for immunosuppression, etc.)

Meanwhile, adult stem cell research–essentially cloning the patient’s own tissue–not only uses the patient’s own DNA and carries zero risk of rejection, but has also been shown to actually produce real results, where embryonic stem cell research never has.

I’m not one given to conspiracy theories, but stuff like this just makes me wonder. Adult stem cell technology has been proven to work. Embryonic stem cell technology has been (all but) proven not to work. And yet you always hear people in the media talking about embryonic stem cell research, and you almost never hear them talk about adult stem cell research. It might almost make you think that it’s not about the research at all, but a campaign to alter the public’s perception of the inherent value of the life in an embryo.

But who would be so cynical as to do something like that?

Ruby says:

Re: Re: Release the videos

Fetal, not embryonic, and yes it’s very useful. http://www.slate.com/articles/health_and_science/medical_examiner/2015/07/fetal_tissue_research_for_als_planned_parenthood_videos_leave_out_that_donations.html


In addition to research, researchers are working on transplanting stem cells into people with degenerative conditions, like ALS. Early tests are promising.

* Adult stgem cell are useful in research, but unsafe to transplant.

* Embryonic cells are more useful, but also carry a risk of developing into cancer.

* Fetal stem cells, usually harvested from aborted fetus’ (AKA what Planed Parenthood does), lack this flaw, and thus are safe for transplant. That is what’s used in the early, promising ALS testing.

Roger Strong (profile) says:

Re: What do the words really mean?

Wikipedia: Prior restraint

Prior restraint is censorship imposed, usually by a government, on expression before the expression actually takes place.
Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for slander or libel. In some countries (e.g., United States) prior restraint by the government is forbidden, subject to certain exceptions, by a constitution.

Anonymous Coward says:

Re: Re: What do the words really mean?

Wikipedia: Prior restraint

I don’t think that’s the answer to the question that I had in mind. I myself could’ve pointed to Alexander v United States (1993), a case which is noteworthy as a lucid explanation of stated doctrine.

No, I was focusing specifically on the statement which begins “Any system…”, and asserts “… a heavy presumption against…”.

Anonymous Coward says:

Re: Re: Re:2 What do the words really mean?

It seems pretty clear: The legal system has a heavy presumption against prior restraint.

Well, that’s not exactly what’s happened in the present case is it?

Judge O’Donnell doesn’t seem to be explaining how or why this supposed “presumption against” was overcome here. Is that really how she started her analysis?

Dan (profile) says:

Re: Re: Re:3 What do the words really mean?

Well, no, she doesn’t. She didn’t write the order (which is very common), though she did apparently read it carefully and made significant changes. She could have written an order herself, or she could have decided that she didn’t need to present the analysis in the order, even though she did it (whether in her mind, or in discussion with counsel at the hearing).

I agree with Ken that this TRO is at least questionable, but there are a couple of points to keep in mind:

* It’s a temporary order–it only lasts for about three weeks, until they can have actual briefing and arguments with both parties represented. If the plaintiff has presented a colorable argument, it’s not unusual to enter a TRO to preserve the status quo while the case can be more fully developed.

* It’s very limited in scope–it covers only material relating to one specific meeting.

I also would have liked to see the judge explain, on the record, how she felt that this order met First Amendment muster–and she may have done that at the hearing for all we know. But I also don’t think it’s shown that she didn’t apply that presumption, based only on what’s made public.

Anonymous Coward says:

Re: Re: Re:4 What do the words really mean?

I agree with Ken that this TRO is at least questionable…

First Amendment standards, however, ‘must give the benefit of any doubt to protecting rather than stifling speech.’



??? Simply a different context ???

(Citizens United, citing WRTL, citing Sullivan)

Anonymous Coward says:

Re: Re: Re:6 What do the words really mean?

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.

Google News Front Page today: “Planned Parenthood fight over fetal tissue research hits U.S. Congress”, by Richard Cowan and Alex Wilts, Reuters, Mon Aug 3, 2015:

Planned Parenthood will be the focus of a partisan showdown in the U.S. Senate on Monday…

Congressional Republicans are trying to cut off Planned Parenthood’s federal funding, reinvigorating America’s debate about abortion as the 2016 presidential campaign heats up.…

Of course, Congress undoubtedly has the power to subpoena “any file, media, device, or document” relevant to today’s debate in that institution.

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.

Anonymous Coward says:

Re: Re: Re:2 What do the words really mean?

I’m not sure that this is protected speech. The two videos released prior to this were clearly libelous in intent, with malicious editing and clearly designed with a political agenda in mind.

I’m not particularly happy about the ruling, but in this case, I believe that it is warranted, given the information at hand.

Anonymous Coward says:

Re: Re: Re:3 What do the words really mean?

If it is libelous then it probably isn’t protected speech, although it’s difficult to successfully argue libel in court when they aren’t lying, and having a recording of what you actually said suggests that they aren’t lying.

On the other hand, neither malicious editing nor a clearly designed political agenda are grounds for preventing the speech. The political agenda is actually an argument for it being protected speech. There are (as far as I can tell) no types of speech more highly protected in the US than political speech.

Not a US Citizen says:

You have your First Ammendment - be wise to protect it

Unlike many nations around the world, your first amendment gives you certain fundamental protections. No matter what the specifics of any agreements in this particular situation, you need to be very careful about protecting this constitutional privilege/right (I use both words for their combined meaning).

It has become the feature of today that speech which offends is considered to be worthy of NO protections. The range of speech which offends is becoming broader every day.

JP Jones (profile) says:

Re: Re:

The group that released the videos, the Center for Medical Progress (CMP) has never, as far as I can find, had a member charged with or implicated in violence against abortion providers. There was one murder associated with a different anti-abortion group (Operation Rescue) where the murderer got information from that group and the group’s leader was indicted with a conspiracy to damage an abortion clinic. And by “associated” I mean “shared a legal defense team” and general political stance. That’s sort of like saying Aasif Mandvi is associated with ISIL because both are Muslim and believe in Allah.

I wonder if people would be having the same reaction if someone snuck a camera into a slaughterhouse. For example, previously the Supreme Court has ruled that you can’t prohibit videos of animal cruelty except in very specific circumstances, and not to hide evidence of that cruelty. What if someone released information about government abuse of human rights?

Be careful what you wish for. Even if you are for abortion that doesn’t mean you should ignore any evidence of wrongdoing. I personally am a huge fan of Elon Musk, but if someone released a video of him kicking puppies for sport, I wouldn’t disregard it just because I think he’s awesome.

I’m not saying the videos are accurate or even representative of Planned Parenthood…I think more investigation needs to happen first. But I do believe there needs to be investigation.

Anonymous Coward says:

Re: Re: Re:

I wonder if people would be having the same reaction if someone snuck a camera into a slaughterhouse.

CBS v Davis (1994) (Blackmun, Circuit Justice)

CBS Inc., CBS News Division, a division of CBS Inc., and the television show 48 Hours (collectively CBS) apply for an emergency stay of a preliminary injunction entered by the Circuit Court for the Seventh Judicial District of South Dakota prohibiting CBS from airing videotape footage taken at the factory of Federal Beef Processors, Inc. (Federal), a South Dakota meat-packing company. CBS seeks to televise the videotape this evening on a 48 Hours investigative news program, and contends that the injunction constitutes an intolerable prior restraint on the media . . .

 . . . Although a single Justice may stay a lower court order only under extraordinary circumstances, such circumstances are presented here. . . . .

Anonymous Coward says:

Re: Re: Re: Re:

I’m hoping that folks here will pay attention to the First Amendment issue, rather than get into any sort of ideological argument over the parties involved or their campaigns because you’re not going to convince anyone, no matter what side you’re on…


[W]e have repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ 

Do I really need to view this YouTube video, before concluding that it’s irrelevant to the discussion we’re trying to have here—considering Near v Minnesota (1931) as settled law? Do you want to expand on what you mean by “Evidence of wrongdoing”?

(I normally keep Flash turned off.)

Dan (profile) says:

Re: So?

Assuming the court has jurisdiction over the parties (which it probably does; the meeting took place in LA, which means that representatives of both parties were present in LA, and the case is arising specifically out of that meeting), the court’s jurisdiction covers the acts of those parties wherever they may be done. If CMP were to release the video (after this order was entered) from a server based in SeaLand, they’d still be violating the court’s order and subject to sanctions for contempt or otherwise.

However, if CMP had already given a copy of the video to someone else before the court had made its order, that other party isn’t bound by the order.

Anonymous Coward says:

The only way I see it sticking is if the NDA is completely legal with no loopholes. Plus if the Law in California says you have to have both parties consent just from whats on the books it looks like a slam dunk that the commercial will not air in the USA or Possibly California (gues that depends on Federal law and if it superceeds the California law).

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