The Volokh Conspiracy

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Court temporarily bars publishing allegedly illegally recorded conversation about transactions in aborted fetus body parts

|The Volokh Conspiracy |

Screen shot from video released by the Center for Medical Progress showing Planned Parenthood Federation of America's senior director of medical services, Dr. Deborah Nucatola. This story is about another video apparently recorded by the Center, and related to the same subject matter. (Courtesy of Center for Medical Progress)

The Associated Press reports:

A temporary restraining order has been issued preventing an anti-abortion group from releasing any video of leaders of a California company that provides fetal tissue to researchers. The group is the same one that previously shot viral covert video of a Planned Parenthood leader discussing the sale of aborted fetuses for research.

The Los Angeles Superior Court order issued Tuesday prohibits the Center for Medical Progress from releasing any video of three high-ranking StemExpress officials taken at a restaurant in May. It appears to be the first legal action prohibiting the release of a video from the organization.

The Center for Medical Progress has released three surreptitiously recorded videos to date that have riled anti-abortion activists. The Senate is expected to vote before its August recess on a Republican effort to bar federal aid to Planned Parenthood in the aftermath of the videos' release.

Does such a restraining order violate the First Amendment? I'll set aside here any debate about the moral merits of abortion, the use of fetal tissue, charging for fetal issue and the like - I focus here on what I'm relatively expert on, which is the First Amendment question. And I'll also assume, for purposes of this post, that the facts are as StemExpress alleges. To my knowledge, the center did not file any documents that express its contrary view of the facts, though it will surely file various documents as the case proceeds, and may well contest StemExpress's factual account.

1. Generally speaking, injunctions barring speech - especially before a full trial on the merits at which the court decides whether the speech is protected - are unconstitutional "prior restraints." That, for instance, is why you can't get a pretrial injunction against alleged libels. After a full trial, speech can be punished, the speaker can be required to pay damages, and quite likely repeating the very same speech found to be unprotected can be prohibited (though a few state courts disagree on that last point). But before the finding on the merits, the speech generally can't be enjoined, though there are some exceptions (for instance, copyright cases, despite arguments that those cases should be treated like libel cases in this respect).

2. The question here is whether such pretrial injunctions should be allowed when it comes to allegedly illegally recorded materials - and, relatedly, whether the materials were illegally recorded.

a. Let's begin with whether the materials were illegally recorded (if StemExpress is right in its assumption that the center did indeed record them, and if StemExpress's account of the facts is correct). Most states allow the surreptitious recording of a conversation so long as one party consents to the recording.

In some states, though, including California, such secret recording of "confidential communications" is generally illegal unless all parties to the conversation consent, see Cal. Penal Code § 632. "[A] conversation is confidential," and thus may not be recorded without consent, "if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." And a conversation can be confidential even if it is in a public place, so long as the parties reasonably expect that the conversation isn't being overheard or recorded.

According to StemExpress, the meeting was "in a virtually-empty dining room [in the restaurant] outside of the earshot of other diners, [StemExpress's representative] ensured that the conversation ceased when employees approached the table, and both [StemExpress representatives] asked [the person who later turned out to be a Center for Medical Progress representative] to lower her voice when they believed she might be overheard." If that's true, then Cal. Penal Code § 632 likely applies. Compare Cuviello v. Feld Entertainment Inc., a recent federal trial court case concluding that the California statute could cover a quiet conversation among two protesters on a sidewalk, when they had no reason to expect that it was being overheard or recorded.

b. So let's say that the recording violated § 632; does it mean that the publication of the recording could also be punished? (Save for a moment the question whether it could be prohibited through an injunction.) Well, Bartnicki v. Vopper (2001) says that third parties to which the document is leaked, and who are otherwise unconnected to the illegal recorder, are generally free to publish such recordings, at least so long as they are on matters of "public concern" (which the controversy about the use of aborted fetal issue would be). But what about the actual illegal recorder or those actively conspiring with the recorder (again, assuming the recording was illegal)?

That turns out to be an unresolved question. As the Supreme Court has noted, the famous Pentagon Papers case "raised, but did not resolve, the question 'whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.'" Other Supreme Court cases likewise didn't resolve this question.

c. Finally, we turn to the "prior restraint" question: Even if the recording and the publication was likely illegal, and could potentially be punished criminally - or lead to civil liability - after a full trial on the merits, could the publication be subject to a pretrial injunction (which is generally based on a prediction that the plaintiff is likely to prevail at trial)? Generally speaking, as I mentioned, such pretrial injunctions are unconstitutional.

But here, Cal. Penal Code § 632 - unlike, for instance, libel law or obscenity law - is likely to be treated as a content-neutral restriction on information gathering, and an accompanying content-neutral restriction on the distribution of illegally gathered information. Content-neutral posttrial permanent injunctions are subject to lower First Amendment scrutiny than content-based ones, see Madsen v. Women's Health Center, Inc. (1994). It's possible that content-neutral pretrial injunctions would likewise be viewed as subject to lower First Amendment scrutiny, and adequately justified by the interest in protecting plaintiffs from the consequences of defendants' likely illegal conduct.

Indeed, in DVD Copy Control Ass'n, Inc. v. Bunner (Cal. 2003), the California Supreme Court upheld a pretrial injunction against the publication of a trade secret, where the defendant was found to have gotten the trade secret by violating a license agreement (the agreement banned reverse engineering, which the defendant was found to have engaged in). Though I'm not sure all the reasoning in the DVD Copy Control Ass'n decision is correct, it is the view of the California Supreme Court. And it would likely apply to secret information gotten in violation of Cal. Penal Code § 632 as well.

But on the other hand, the court in DVD Copy Control Ass'n concluded (in my view incorrectly, but that's a separate question) that the trade secret in that case did not "involve[] a matter of public concern." The speech here does involve a matter of public concern. So perhaps even despite DVD Copy Control Ass'n, the content-neutrality of § 632, and the center's participation in the illegal recording - again, we're assuming here that the facts are as StemExpress says, and the recording is indeed illegal - the publication of the recording is protected against a pretrial injunction, though not against criminal punishment or civil liability.

3. As an excellent post by Ken White (Popehat) points out, though, there's another twist to the case: A month after the meeting, the center signed a nondisclosure agreement with StemExpress and got various documents from StemExpress pursuant to that agreement. As I read StemExpress's arguments, StemExpress is not claiming that the agreement applies to the information disclosed in the conversation a month before. But the agreement does seem to apply to the documents that StemExpress gave the center.

First Amendment rights can be waived by contract, even when it comes to matters of public concern (Cohen v. Cowles Media Co. (1991)). State law might sometimes render some such contracts unenforceable, but First Amendment law generally doesn't disturb them, and these sorts of nondisclosure agreements are routinely enforced. And pretrial injunctions against the breach of such contracts are likely constitutional, too.

Yet the trial court expressly refused to block the publication of the documents. It's not clear to me why the court acted this way, though I suspect that is based on some state-law grounds, rather on First Amendment grounds.

4. So the bottom line: It's not clear whether the pretrial injunction is unconstitutional, but there is at least a substantial case in favor of its constitutionality, despite the prior restraint doctrine - of course, assuming the facts are as StemExpress alleges (and assuming I haven't missed something big here). Wish I could give you something more definite, but I can't.