Can be stopped from distributing the Center for Medical Progress abortion-related videos?

|The Volokh Conspiracy |

There's a new twist in the story of the surreptitiously recorded Center for Medical Progress videos (via The Post's Morning Mix):

A controversial blogger and an infamous Internet hacker have teamed up to release hours of covertly filmed videos targeting Planned Parenthood officials and affiliates.

The videos, which were filmed by anti-abortion activist David Daleiden and partially released this summer, had been sealed under a temporary restraining order issued by a federal judge.

But neither the blogger, Charles C. Johnson, nor the hacker, Andrew "Weev" Auernheimer, said they were worried about the legal repercussions of releasing the videos.

Johnson's site,, has gotten a demand letter from the National Abortion Federation's lawyers, which argues that the temporary restraining order against the Center also applies to GotNews:

(Photo from site.)
(Photo from site.)

Can that be so?

The answer, I think, has to do with whether Johnson is indeed "in active concert or participation with" the people and organizations named in the injunction. If this release is just part of an agreement between the center and Johnson to circumvent the injunction, then Johnson would indeed be bound by the injunction. (Johnson is a friend of the center's David Daleiden.)

On the other hand, if Johnson got the video—as he says he did—from an anonymous source, who he thinks might be a congressional staffer, then Johnson isn't bound by the injunction and can't constitutionally be bound by it. The mere fact that Johnson's actions frustrate the purpose of the restraining order, or accomplish the center's political purposes, can't get Johnson covered under an injunction that was issued in a case against the center, not against Johnson.

The staffer might be violating his obligations to his employer. (Congress got the videos pursuant to a congressional subpoena, and my understanding is that the subcommittee didn't authorize their release.) But just as the New York Times and the Washington Post couldn't be enjoined from publishing the Pentagon Papers, which were illegally leaked by Daniel Ellsberg, so GotNews can't be enjoined from publishing the videos, even if they were improperly or even illegally leaked by congressional staffers.