Free Speech

No Temporary Restraining Order Against Airing of Discovery's The Lost Lincoln

A federal district court rejects the argument that the documentary will violate trade secret rights related to "a long-lost photograph that purportedly depicts Abraham Lincoln lying wounded on the night of his assassination."

|The Volokh Conspiracy |

The opinion is Spolar v. Discovery Communications, LLC, handed down today by Judge Stephen V. Wilson:

Discovery describes the documentary, entitled The Lost Lincoln, as "follow[ing] professional authenticator Dr. Whitny Braun as she leads an investigation to determine whether or not a newly discovered photograph could be the 131st and final image of the president following his fatal shooting in 1865."

Plaintiffs own the photograph, and claim that Dr. Braun's work violated his nondisclosure agreement with them. The court notes, though, that Discovery has no contract with the plaintiffs, and that the plaintiffs' research into the photograph isn't the sort of trade secret whose disclosure can be enjoined in this kind of situation.

The court's decision doesn't rest primarily on First Amendment doctrine:

Whether and how the prior restraint doctrine applies to protectible trade secrets—especially those covering matters of public concern—remains murky. In CBS, Inc. v. Davis, Justice Blackmun granted a television network's application to stay an injunction prohibiting a broadcast that would allegedly disclose a meat packing company's trade secrets. 510 U.S. at 1318; see also Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 753 (E.D. Mich. 1999). However, it is well recognized that the prior restraint doctrine is routinely relaxed in the field of intellectual property. See Smolla & Nimmer on Freedom of Speech § 15:60 ("[C]ourts have often exhibited a blind spot for normal prior restraint and preliminary injunction standards when it comes to enforcement of copyright interests."); see, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir. 2001); Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 n.11 (9th Cir. 1997).

But the court recognizes that its analysis of the factors used to decide whether to grant an injunction should be "informed by an extra layer of First Amendment scrutiny," and concludes that ultimately the plaintiffs' trade secret claim appears too weak to warrant a temporary restraining order.


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  1. This seems to indicate that a private person may not grant access to private information conditioned on an agreement to keep that information private.

    Can a government entity do the same thing?

    1. I would think there could still be penalties for breaching such an agreement, just not using the power of government to prevent disclosure.

    2. “This seems to indicate that a private person may not grant access to private information conditioned on an agreement to keep that information private.”

      No, that’s not at all what it indicates.

      What it indicates is that such an agreement is only enforceable against a party to the agreement.

      Discovery is not a party to the agreement.

      Had the plaintiff found out soon enough they might well have been able to get a court order prohibiting Dr. Braun from disclosing anything to Discovery.

      At this point, they likely have a strong case against Dr. Braun for breach of the agreement, but that would be for monetary damages only. The court has no power to claw back information already disclosed to Discovery.

      1. If the information was a trade secret, they probably would be able to enjoin Discovery, not withstanding that they are not a party to the agreement.

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