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).