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

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

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).

Filed Under: abortion, anti-abortion, first amendment, free speech, los angeles, prior restraint, video
Companies: stemexpress