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 suspected to have been recorded by the Center, also related to abortion. (Courtesy of Center for Medical Progress)

[UPDATE (10:25 pm Friday, July 31): The injunction has been granted. The judge wrote, “Based on the record before me, I find that NAF is likely to prevail on the merits of its claims, the balance of hardships tips in its favor, NAF would be likely to suffer irreparable injury, absent an ex parte temporary restraining order, in the form of harassment, intimidation, violence, invasion of privacy, and injury to reputation, and the requested relief is in the public interest." The Center is now temporarily blocked from “(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings," “(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings," and “(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings."]

The National Abortion Federation has sued the Center for Medical Progress in federal court and seeks a pretrial injunction ordering the center not to publish certain videos that the center recorded. The federation claims that center representatives got access to a federation conference by fraudulently posing as exhibitors and signing a nondisclosure agreement that they had no intention of abiding by:

[A]ll attendees must sign a non-disclosure agreement (NDA) to gain admittance to the meeting. Under the terms of the NDA: (1) attendees must not videotape or record at the meeting; (2) all information distributed or otherwise made available at the meeting is confidential and may only be used “to help enhance the quality and safety of services provided by NAF members and other participants”; (3) attendees “may not use NAF Conference Information in any manner inconsistent with these purposes”; and (4) attendees may not disclose any information learned at the meetings to third parties, without NAF’s consent.

The center’s suspected videorecording, the federation argues, breached this contract and also violated Cal. Penal Code § 632, which bars the audiorecording of “confidential communication” without all parties’ consent. The federation therefore wants the court to forbid the center from releasing the videos, and do so right away, before any trial on the merits.

Here are a few thoughts on the legal question, which borrow from this post about a similar lawsuit. (I set aside here any debate about the moral merits of abortion — I focus here on what I’m relatively expert on, which is the First Amendment question. I also assume, for purposes of this post, that the facts are as the federation 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 the federation’s factual account.)

1. As I noted before, injunctions barring speech — especially before a full trial on the merits at which the court decides whether the speech is protected — are generally 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. But 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. Moreover, contract law is generally viewed as a content-neutral basis for restricting speech, as opposed to content-based restrictions such as libel law or obscenity law. 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), and content-neutral pretrial injunctions might likewise be viewed as subject to lower First Amendment scrutiny.

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). I’m not sure all the reasoning in the DVD Copy Control Ass’n decision is correct, but federal courts are likely to find it persuasive.

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 the confidentiality agreement — again, we’re assuming here that the facts are as the federation says, and the recording and disclosure indeed breaches the agreement — the publication of the recording is protected against a pretrial injunction, though not against civil liability.

3. What about § 632? As I discussed in the previous post, it might be constitutional for courts to issue pretrial orders barring the publication of material recorded in violation of § 632, even if there’s no nondisclosure agreement involved. But here, I’m skeptical that § 632 would apply.

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.” A conversation can be confidential even if it is in a public place, but only so long as the parties reasonably expect that the conversation isn’t being overheard or recorded.

My guess — and to my knowledge there’s no California caselaw on this — is that many conversations at a busy conference would not be treated as “confidential,” even if everyone has signed nondisclosure agreements. Though the attendees might not expect that they will be recorded (indeed, most of us rarely expect that we’ll be recorded, except in specific public places), they probably would realize that their conversations might well be overheard. Some specific conversations, carried on in hushed tones in secluded areas of the conference, might be covered by § 632; but other conversations, for instance at an exhibitor booth when others are routinely walking by, likely aren’t.

Still, I don’t think the federation needs to win on the § 632 claim, assuming the contractual provisions are as they say — the breach of contract claim, and the request for a pretrial injunction to prevent further breach, would be pretty strong (though subject to the uncertain prior restraint objection, which would equally apply as to the § 632 claim).

4. Bartnicki v. Vopper (2001) says that third parties to which even an illegally gathered 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 these videos likely would be). The same logic would apply to unconnected third parties that publish information gathered and leaked in breach of a contract. But the center, which itself signed the nondisclosure and nonrecording contract, wouldn’t be protected by Bartnicki.

5. So the bottom line: It’s not clear whether a pretrial injunction based on the alleged breach of confidentiality agreement 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 the federation alleges (and assuming I haven’t missed something big here).

Thanks to Ken White (Popehat) for the pointer to the federation’s motion.