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:
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.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.
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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Filed Under: abortion, anti-abortion, first amendment, free speech, los angeles, prior restraint, video
Companies: stemexpress
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ha ha ha
Don't dick around... release EVERYTHING AT ONCE! Snowden got lucky due to all of the asshats hunting his shit down with vigor.
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Re: ha ha ha
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.
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Historical Perspective
New York Times Co., Petitioner, vs. United States, Respondent
United States, Petitioner, vs. The Washington Post Company, et al, Respondent
The above-entitled matters came on for argument at 11:00 o'clock a.m., on Saturday, June 26, 1971.
(via GWU)
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Release the videos
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.
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Re: Release the videos
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?
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Re: Re: Release the videos
http://arstechnica.com/science/2014/09/controversial-stem-cell-paper-was-published-over-review ers-objections/
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Re: Re: Release the videos
TL;DR:
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.
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What do the words really mean?
???
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Re: What do the words really mean?
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Re: Re: What do the words really mean?
No, I was focusing specifically on the statement which begins “Any system…”, and asserts “… a heavy presumption against…”.
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Re: Re: Re: What do the words really mean?
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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?
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Re: Re: Re: Re: Re: What do the words really mean?
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.
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Re: Re: Re: Re: Re: Re: What do the words really mean?
??? Simply a different context ???
(Citizens United, citing WRTL, citing Sullivan)
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Re: Re: Re: Re: Re: Re: What do the words really mean?
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Re: Re: Re: Re: Re: Re: Re: What do the words really mean?
???
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Re: Re: Re: Re: Re: Re: Re: Re: What do the words really mean?
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:Of course, Congress undoubtedly has the power to subpoena “any file, media, device, or document” relevant to today's debate in that institution.
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Re: Re: Re: Re: Re: Re: Re: What do the words really mean?
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Re: Re: Re: Re: What do the words really mean?
I'm not particularly happy about the ruling, but in this case, I believe that it is warranted, given the information at hand.
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Re: Re: Re: Re: Re: What do the words really mean?
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.
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You have your First Ammendment - be wise to protect it
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.
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What do the words really mean? part II
???
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Re:
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.
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CBS v Davis (1994) (Blackmun, Circuit Justice)
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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.)
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So?
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Re: So?
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.
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Re: Re: So?
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