The Volokh Conspiracy

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Free Speech

Court Upholds Injunction Barring Distribution of Material Recorded at National Abortion Federation Conference

The defendants, the court held, had "knowingly, voluntarily, and intelligently waived any First Amendment rights in disclosing the information they obtained at the NAF conferences" by agreeing to that as a condition of being admitted to the conference.


In National Abortion Fed'n v. Center for Medical Progress, decided Friday, the Ninth Circuit (Judges Sidney Thomas, Margaret McKeown, and Richard Clifton) upheld the constitutionality of a permanent injunction that ordered the Center for Medical Progress and David Daleiden not to distribute material that they had recorded at NAF conferences:

The Supreme Court has held that First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary, and intelligent. Janus v. AFSCME (2018). Defendants knowingly, voluntarily, and intelligently waived any First Amendment rights in disclosing the information they obtained at the NAF conferences by signing the agreements with NAF. Daleiden voluntarily signed the agreements, and testified that he was familiar with the contents. The agreements unambiguously prohibited him from making records, disclosing recordings, and from disclosing any information he received from NAF. His waiver of First Amendment rights was demonstrated by clear and convincing evidence….

I think this is likely correct, for reasons discussed here and here. Here's a portion of an earlier District Court decision quoting the specific nondisclosures agreements:

It is NAF policy that all people attending its conferences (Attendees) sign this confidentiality agreement. The terms of attendance are as follows:

1. Videotaping or Other Recording Prohibited: Attendees are prohibited from making video, audio, photographic, or other recordings of the meetings or discussions at this conference.

2. Use of NAF Conference Information: NAF Conference Information includes all information distributed or otherwise made available at this conference by NAF or any conference participants through all written materials, discussions, workshops, or other means….

3. Disclosure of NAF Materials to Third Parties: Attendees may not disclose any NAF Conference Information to third parties without first obtaining NAF's express written consent ….

The court also upheld the district court's finding that defendants had violated the injunction and were thus guilty of contempt of court:

The district court did not err in finding that Daleiden created a video containing the enjoined footage and uploaded that video to CMP's YouTube channel….

Cooley and Ferreira were bound by the preliminary injunction, as Daleiden's attorneys, agents, and as parties in active concert or participation with Daleiden…. Cooley and Ferreira received adequate notice. They were apprised of the possibility of civil sanctions in late May, and the contempt hearing was held in mid-July. They had approximately six weeks to prepare. Shortly before the hearing, they were informed that the district judge was only considering civil sanctions…. Cooley and Ferreira were subject to civil sanctions—not criminal ones…. Thus, they were not entitled to procedural safeguards beyond notice and an opportunity to be heard…. Cooley and Ferreira do not fall within the "narrow circumstances" that would permit them to contest the legality of the underlying injunction by disobeying it…. The district court did not err in concluding that Cooley and Ferreira did not have an objectively reasonable basis for believing that the injunction did not apply to them.