The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

First Amendment Limits Media Liability for Inducing Breach of Nondisclosure Agreement—Now a Precedent in California

The Court of Appeal has ordered that the formerly nonprecedential decision, which I blogged about four weeks ago, will now be precedential.


As I wrote on May 30, in Jenni Rivera Enterps., LLC v. Latin World Entm't Holdings, Inc. the California Court of Appeal held that the First Amendment sometimes limits creators' liability for tortiously inducing breach of contract by their sources. A quick summary of the facts:

These appeals arise from a dispute concerning a television production based on the life of the Mexican-American celebrity Jenni Rivera, who died in a plane crash in December 2012. The entity that controls most of Rivera's assets, Jenni Rivera Enterprises, LLC (JRE), entered into a nondisclosure agreement with Rivera's former manager, Pete Salgado, that restricted his disclosure and use of certain personal information about Rivera and her family.

Alleging Salgado breached that agreement by disclosing information to the producers and the broadcaster of a television series based on Rivera's life, JRE sued Salgado and the program's producers for breach of contract, interference with contract, and inducing breach of contract. JRE also sued the program's broadcaster for interference with contract and inducing breach of contract….

And a quick summary of the ruling: The court concluded that the plaintiffs' claim against Univision Network & Studios for tortiously inducing Salgado to breach his contract

  • were viable as a matter of California law,
  • but were preempted by the First Amendment, given that "Univision had no knowledge of the nondisclosure agreement at the time it entered into the license agreement with BTF [the producers of the series about Rivera]," and that all Univision did after learning of the agreement appeared to "consist[] of continuing to pay license fees to BTF and promoting Salgado's involvement with the Series."

But the ruling, like over 80% of California Court of Appeal, was "unpublished," which is to say nonprecedential. Most such nonprecedential rulings just apply settled law to the facts of each case; and I expect that this practice of nonpublication may make matters easier for many lawyers and judges (and thus perhaps cheaper for many clients), since otherwise there'd be five times as many precedents that they would need to consider. And in California (as opposed to in the federal system), these cases may not be cited at all to California courts, even as merely persuasive but nonbinding precedent.

This case, though, struck me as pretty important, and not duplicative of existing law. So, leading First Amendment lawyer Floyd Abrams and First Amendment law professors David Ardia (North Carolina), Enrique Armijo (Elon), Dale Cohen (UCLA), RonNell Andersen Jones (Utah), Gregg P. Leslie (Arizona State), Lyrissa Lidsky (Missouri), Mary-Rose Papandrea (North Carolina), Jennifer E. Rothman (Loyola-L.A.), and I filed a letter asking the panel to publish the case; under California law, anyone, whether or not a party or an amicus, may make such a request. And Tuesday the Court of Appeal agreed, and ordered that the case be published. (Many thanks to my cosigners, and to my student Cheryl Wilson, who drafted the letter under my supervision.) I hope the precedent will prove useful to California courts, lawyers, and media organizations, and perhaps even persuasive to courts in other states.