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

from the slappity-slapp-slapp dept

Fri, Aug 14th 2015 12:46pm — Mike Masnick

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.

StemExpress Anti SLAPP Points and Authorities (PDF)StemExpress Anti SLAPP Points and Authorities (Text)

CMPDecision (PDF)CMPDecision (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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

13 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

aldestrawk (profile), 14 Aug 2015 @ 2:34pm

I will point out that when Thomas Kinkade ("Painter of Light") died in 2012, there was a bitter battle between his live-in girlfriend and his ex-wife, the controller of the Thomas Kinkade Trust. one aspect of that battle was that Nanette Kinkade, the ex-wife, asked for, and was granted, a temporary injunction prohibiting the girlfriend, Amy Pinto-Walsh from discussing pretty much anything to do with Thomas Kinkade, his art factory, or his ex-wife. Meanwhile, Nanette was free to make any public criticism she wished to.

"Santa Clara County Superior Court Judge Patricia M. Lucas signed the order on April 16 prohibiting Amy Pinto-Walsh from making statements or engaging in conduct that has the effect of defaming, criticizing, disparaging or discrediting Kinkade, his widow Nanette Kinkade, or any company owned by Kinkade"
http://patch.com/california/losgatos/will-thomas-kinkade-s-girlfriend-speak-after-15-day-i72 b614ff19

This most certainly is prior-restraint and it was applied to only one side in a court battle. The justification for it was that the girlfriend had signed a non-disclosure agreement, the same one that all employees of the art factory had to sign. As far as I could tell, the reason for this part of the NDA was to protect Thomas Kinkade's reputation as a devout and good Christian since sales of his paintings to his Christian devotees relied upon this. In reality he was a philandering alcoholic prone to wild behavior while drunk. For example:

And then there is Kinkade's proclivity for "ritual territory marking," as he called it, which allegedly manifested itself in the late 1990s outside the Disneyland Hotel in Anaheim.
"This one's for you, Walt," the artist quipped late one night as he urinated on a Winnie the Pooh figure, said Terry Sheppard, a former vice president for Kinkade's company, in an interview.
http://articles.latimes.com/2006/mar/05/business/fi-kinkade5

What really bothers me is if this type of prior-restraint becomes accepted. A NDA for a personal relationship is an abuse of the power/wealth imbalance and is outrageous.

The community local to Thomas Kinkade engaged in a lively and colorful debate in the Los Gatos Patch. If you have the time, it is entertaining as well as informative. An example of the terms used on each side are; "thuggish Christian witches" and "gold-digging whore".
[ link to this | view in thread ]
Anonymous Coward, 14 Aug 2015 @ 3:11pm

Even if the initial release of video can't be legally blocked, getting it taken down is child's play.

It seems that the standard method for eradicating from the internet all types of surreptitiously recorded content is by firing off DMCA claims aimed at all the hosting providers such as YouTube. As few companies are going to risk getting slapped with a 150 thousand dollar penalty (even if the copyright claim seems highly questionable) the content will quickly get taken down. Never mind that it's the owner of the recorded media --not the person recorded-- who gets copyright title. And filing fake copyright takedowns is perfectly legal as long as it's not "knowingly" false.

For instance, someone recently went around DMCAing multiple copies of Hulk Hogan doing and saying nasty things that the public was not supposed to witness. (while a determined person can probably find them with a little effort, I soon threw in the towel and lost interest after coming across the first few dmca deletions)
[ link to this | view in thread ]
Anonymous Coward, 14 Aug 2015 @ 3:29pm

Re:
The non-disclosure agreement has virtually become the standard of doing business. It's rather surprising that Planned parenthood did not require an NDA.

You can bet that any genetic research facility (such as the fictitious one the "gotcha" actors/videographers were supposed to be working for) would have required an NDA for contractors and other visitors before being allowed behind the Iron Curtain.
[ link to this | view in thread ]
Anon, 14 Aug 2015 @ 4:01pm

truth will out
Can't StemExpress demand discovery of the original, un-edited, videotape as part of this case? Comparison of the 2 versions would be pretty devastating to CMP. If CMP destroyed the original, that would be all the more reason to suppress the edited work.
[ link to this | view in thread ]
John Snape (profile), 14 Aug 2015 @ 11:24pm

Re: truth will out
CMP has released all of their unedited tapes to the public, which is why I tend to stop reading news stories when they lie and say they only released "misleadingly edited tapes."
[ link to this | view in thread ]
aerilus, 15 Aug 2015 @ 12:29am

isnt california a two party consent state when it comes to recordings?
[ link to this | view in thread ]
Dan (profile), 15 Aug 2015 @ 4:47am

Re:
Yes, it is. That fact may provide for civil, or even criminal, penalties against the folks who did the recording, and would most likely prevent the recording from being used as evidence for most purposes, but it doesn't mean that prior restraint of the recording is constitutional. Ken's initial post at Popehat explains why.
[ link to this | view in thread ]
Mike C. (profile), 15 Aug 2015 @ 7:40am

Re: Re: truth will out
CMP may be releasing all versions of their videos, but the media tend to "report" only on the edited version. It's like most "news" these days - the only story we get is the one that generates clicks/eyeballs. You actually have to spend time digging and researching if you want to know the real story.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2015 @ 10:28am

Re: Re:

isnt california a two party consent state when it comes to recordings?
That fact may provide for civil, or even criminal, penalties…
In its short, three-paragraph, per curiam opinion in New York Times v United States (1971) (the Pentagon Papers case), the Supreme Court wrote little more than a citation to three precedents, Bantam Books, Near, and OBA, for the proposition—
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint."
In the Pentagon Papers case, of course, as in those previous cases, the Court held that the burden had not been carried.

In that historic case, we must turn to the various, fractured opinions of the several Justices for more insight. It has been pointed out that Justices Stewart and White were, in effect, “the swing votes”.

Justice White, in his concurrence (joined by Justice Stewart), wrote:
The Criminal Code contains numerous provisions potentially relevant to these cases. . . . I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.
The import of Justice White's reasoning here should be clear enough: The potential imposition of criminal penalties for publication —even in a case involving the national defense— is not sufficient to enjoin that publication.
That matter must await resolution in the context of a criminal proceeding if one is instituted . . . In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.
[ link to this | view in thread ]
Ben (profile), 15 Aug 2015 @ 7:19pm

Edited Videos
Hi Mike,

Thanks for covering this issue. I know that it's main topic is not often discussed here on Techdirt.

I wanted to point out that in you opening statement you said that CMP edited then released their videos. This is true, but they also released the full unedited videos at the same time.

one example is:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&a mp;uact=8&ved=0CCQQtwIwAWoVChMI6-61gcOsxwIVBHQ-Ch25iwqL&url=http%3A%2F%2Fwww.youtube.com%2Fw atch%3Fv%3DvwAGsjoorvk&ei=EfHPVauiL4To-QG5l6rYCA&usg=AFQjCNEQnEb98ukQ3ON6oztCfHaoxeRraQ& sig2=hWcd8GWgtZ9GXoECXAAH0w&bvm=bv.99804247,d.cWw

Fill free to look around, every short edited video has been accompanied with the full unedited video as well.

Just say'en
[ link to this | view in thread ]
AnonCow, 16 Aug 2015 @ 5:32am

Call it "revenge porn". The wave of new revenge porn laws have been able to avoid the exact same First Amendment issues.
[ link to this | view in thread ]
Stoatwblr (profile), 16 Aug 2015 @ 8:08am

Re:
"It seems that the standard method for eradicating from the internet all types of surreptitiously recorded content is by firing off DMCA claims aimed at all the hosting providers such as YouTube."

Making such claims is running very close to the perjury provisions in the DMCA. I know that "big media" do an end run around that by not actually claiming copyright over the item in question but small fry won't usually be smart enough to do that.

I'd love to see a DMCA perjury case actually hit the courts. It'd definitely be popcorn time.
[ link to this | view in thread ]
Bergman (profile), 17 Aug 2015 @ 1:28am

Re: Re:
No one has ever been prosecuted under that clause, as far as I know. Even in absurdly blatant cases where perjury is the only possible conclusion, nobody goes to court and nobody goes to jail.

I'd love to see one hit the courts too, but so far it doesn't look likely.

Which is one reason I'm often tempted to go find someone who knows NOTHING about copyright and convince them to take Disney down via a backbone provider or something -- if they honestly don't know the claim they file is not true...
[ link to this | view in thread ]