Judge Realizing He Probably Can't Block Release Of Surreptitiously Recorded Video

Free Speech

from the slappity-slapp-slapp dept

Last month, we wrote about a judge in California issuing a temporary restraining order barring an anti-abortion group from releasing a video it had surreptitiously recorded of a conversation it held with a life sciences company named StemExpress, where the group pretended to be an organization interested in doing business with StemExpress. You can argue that the group, the Center for Medical Progress (CMP), did something quite shady (it’s the same group that similarly recorded conversations with a Planned Parenthood exec) in misrepresenting who they were, secretly recording conversations, and editing and releasing the videos — but that doesn’t change the fact that the court really can’t bar the release of the video. Because that’s called prior restraint.

As we explained last time, the only possible out for StemExpress was to argue that the group had signed a non-disclosure agreement, which effectively waived any First Amendment rights, but that would be a huge stretch. Our main concern was that in the ruling for the restraining order, there was basically no discussion of the First Amendment/prior restraint question, which deserved a thorough review.

CMP struck back with an anti-SLAPP filing (under California’s pretty good anti-SLAPP law), highlighting the First Amendment questions:

Defendants obtained the recording and the documents in the course of conducting an investigation into possible illegal activity, with the purpose of documenting and exposing this activity to the public to spur action and reform. The complained-of conduct is quintessential newsgathering, protected by the First Amendment. Plaintiffs’ complaint, therefore, is directed at conduct (newsgathering) in furtherance of the exercise of the constitutional right to free speech and petition….

And, as Popehat explains, it appears the judge is now realizing that a restraining order is likely unconstitutional. The decision in response to the anti-SLAPP motion points out that there really isn’t any legitimate reason to block the release of the video.

Plaintiff does not persuade the Court that the discovery it seeks is necessary to obtain the preliminary injunction. That is because it appears unlikely that the Court is going to grant the preliminary injunction. The injunction Plaintiff seeks would prevent Defendants from disseminating the videotapes. First, this proposed injunction would constitute a prior restraint on the Defendants’ rights under the First Amendment and the parallel protections under the California Constitution…. Therefore, it is unlikely that the preliminary injunction will ultimately be granted…. This general prohibition on prior restraints even applies to speech whose publication is false, defamatory, violative of privacy rights or otherwise tortious.

Second, even if Plaintiff’s evidence demonstrates that the videotapes were obtained in violation of Penal Code Section 632, Section 632 does not prohibit the disclosure of information gathered in violation of its terms…. For that reason, the Court is unlikely to enjoin the dissemination of the tapes. Nor does Penal Code Section 637.2 help Plaintiffs. That section permits a person injured by a violation of Penal Code Section 632 ?to bring an action to enjoin and restrain? such violation. It does not permit an action to prevent the dissemination of the unlawfully obtained recording.

This is a procedural step away from a final ruling on the issue, but is rather in response to a discovery request. But, at the very least, it suggests that StemExpress’s attempt to block the release of the video is almost certain to fail. And, of course, it has now called much more attention to the video when it does get released.

Filed Under: first amendment, free speech, prior restraint, video
Companies: center for medical progress, stemexpress