There has been a bit of a "kill the messenger" response in some corners directed toward the Center for Medical Progress, the group that filmed the secret videos showing how Planned Parenthood treats fetal tissue it gathers from the abortions it provides. California Attorney General Kamala Harris has promised to look into whether the organization broke state law. California is a "two-party" state requiring both sides to agree to be recorded.
This is a stupid idea on Harris' part that would backfire if she actually attempts to pursue charges against Center for Medical Progress (my prediction is that she won't and that this is just for show for Democratic votes for her Senate run).
Now a judge has weighed in and has granted a narrow restraining order against the Center for Medical Progress to keep them from releasing certain videos or materials. It is not a complete ban, as we can see from the release of a fourth video today. The injunction is focused on a broker service named StemExpress who works with Planned Parenthood and has filed a civil suit this week against the Center for Medical Progress. StemExpress accuses the Center for Medical Progress of all sorts of fraudulent behavior in order to obtain the videos and information they've released.
StemExpress asked for an injunction from a judge to stop the group from releasing the information they have gathered. The judge has agreed to temporarily forbid the group from releasing the recording of a secret meeting.
Ken White and Adam Steinbaugh at Popehat note that the judge didn't actually rubber stamp this request. He narrowed it down much further than StemExpress asked for. The company wanted to prevent the Center for Medical Progress from releasing any of the documents they had obtained from StemExpress and force them to remove any documents they had already posted online. The judge declined a request that broad.
But even so, the judge's order is obviously a version of prior restraint, judicially preventing something from being published. The First Amendment takes a dim view of such actions. White explains:
Prior restraint of publication is generally unconstitutional and highly disfavored. That generally means that courts may punish you for a wrongful publication, but they will only very rarely prohibit you from making it in advance. The Supreme Court has said that Prior restraint is "the essence of censorship" and that the "chief purpose" of the First Amendment "is to prevent previous restraints upon publication." Here at Popehat we've written about numerous foolish and unsuccessful efforts to invoke prior restraint, brought by angry scientists and developers. We've also talked about cases of courts imposing clearly unlawful prior restraint, as in the case of Alabama blogger Roger Shuler.
Under this doctrine, if you try to get a court to prohibit a publication in advance — or order it taken down — on the grounds that it's defamatory, you'll almost certainly fail. The remedy is to seek damages afterwards. But StemExpress' complaint isn't about defamation. It's about illegal recording and about violation of a nondisclosure agreement — an agreement that CMP operatives signed, attached to StemExpress' complaint as an exhibit.
Recordings made secretly in violation of California Penal Code section 632(a) are inadmissible — you can't illegally record someone and then use that recording as evidence against them in a case. But I see no authority suggesting that the general rule against prior restraint is relaxed when the communication in question is an illegal recording under California law. Courts have generally declined to create broad exceptions to the prior restraint doctrine for illegally recorded materials, particularly in a "investigative reporting" context. The recordings — and maybe even the publications of them — can be punished, but there's not strong authority for them being prevented in advance. So: to the extent this TRO purports to rely upon the fact that the recording was illegal, it is of very dubious constitutionality.
Read more of their argument here.
Read Elizabeth Nolan Brown's lengthy analysis of efforts to defund Planned Parenthood here.