My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

The lawsuit in question came not from Planned Parenthood, the lead target of the CMP's campaign, but a company called StemExpress. StemExpress is a broker — it procures human tissue samples and resells them to researchers. Only July 27, 2015, StemExpress filed a civil complaint against CMP in Los Angeles County Superior Court. The thrust of that complaint is that CMP activists posed as a company called "BioMax Procurement Services, LLC," approached StemExpress as a potential buyer of fetal tissue, secretly recorded a May 2015 meeting with StemExpress representatives, and obtained confidential StemExpress documents under the pretense of a purchase negotiation.

StemExpress is suing for unlawful recording. California is a "two-party" state — under California Penal Code section 632, it's both a crime and a civil violation to record a private conversation without the consent of the participants. They're also suing for receipt of stolen property (the documents), conversion — meaning taking StemExpress' property (the documents again), fraudulent inducement of contract (under the theory that CMP entered into a nondisclosure agreement they indended to break in order to get documents from StemExpress), intentional interference with contract (under the same theory), breach of contract (under the same theory), and unfair competition (under a very annoying California statute that more or less lets anyone sue anyone for anything, anytime, anywhere, for any reason whatsoever, thanks be to God and beach houses for lawyers). StemExpress also asks for injunctive relief — an order prohibiting CMP from releasing a recording of the May 2015 meeting or the documents they obtained by fraud.

As a preliminary matter, note that this case doesn't concern videos that CMP made of Planned Parenthood or its employees. It's only about one video of, and some documents from, one broker that deals with Planned Parenthood.

Earlier this week StemExpress sought a temporary restraining order prohibiting that release. In civil court, a TRO is the first step of injunctive relief: it's meant to maintain the status quo until there can be a full hearing on whether to issue a preliminary injunction, which in turn maintains the status quo until the end of the case when the court may or may not issue a permanent injunction.

CMP's statements suggest that StemExpress first sought a broad TRO from the court and was rebuffed. “They are not succeeding — their initial petition was rejected by the court, and their second petition was eviscerated to a narrow and contingent order about an alleged recording pending CMP’s opportunity to respond,” the group said." We have a copy of one of StemExpress' TRO applications here. They made the application ex parte, meaning with only about 24 hours notice. We also have a copy of the TRO the judge eventually signed. It's here. Notably, the judge narrowed the relief sought by StemExpress significantly, crossing out large parts of its proposed order. Until a preliminary injunction hearing on August 19, 2015, the court prohibited CMP from releasing or sharing in any way the recording of the May 2015 meeting. However, the court refused to prohibit CMP from releasing or sharing documents it obtained from StemExpress, and refused to order CMP to take down such documents that it had already published on its website. This was not a rubber-stamp order; right or wrong, the judge actually evaluated and addressed each request individually. That's heartening.

Therefore, all that is currently prohibited, pending a hearing next month, is the recording of a single meeting. Is that constitutional?

Let's start with the basic principle: prior restraint of publication is generally unconstitutional and highly disfavored. That generally means that courts may punish you for a wrongful publication, but they will only very rarely prohibit you from making it in advance. The Supreme Court has said that prior restraint is "the essence of censorship" and that the "chief purpose" of the First Amendment "is to prevent previous restraints upon publication." Here at Popehat we've written about numerous foolish and unsuccessful efforts to invoke prior restraint, brought by angry scientists and developers. We've also talked about cases of courts imposing clearly unlawful prior restraint, as in the case of Alabama blogger Roger Shuler.

Under this doctrine, if you try to get a court to prohibit a publication in advance — or order it taken down — on the grounds that it's defamatory, you'll almost certainly fail. The remedy is to seek damages afterwards. But StemExpress' complaint isn't about defamation. It's about illegal recording and about violation of a nondisclosure agreement — an agreement that CMP operatives signed, attached to StemExpress' complaint as an exhibit.

Recordings made secretly in violation of California Penal Code section 632(a) are inadmissible — you can't illegally record someone and then use that recording as evidence against them in a case.1 But I see no authority suggesting that the general rule against prior restraint is relaxed when the communication in question is an illegal recording under California law. Courts have generally declined to create broad exceptions to the prior restraint doctrine for illegally recorded materials, particularly in a "investigative reporting" context. The recordings — and maybe even the publications of them — can be punished, but there's not strong authority for them being prevented in advance. So: to the extent this TRO purports to rely upon the fact that the recording was illegal, it is of very dubious constitutionality.

Remarkably, StemExpress' TRO application contains no prior restraint analysis whatsoever. Its sole concession to the First Amendment is an argument that (1) this isn't a First Amendment violation because it's an illegal recording, and (2) it's not a First Amendment violation because the defendants are free to speak or write about what happened at the meeting, they just can't release the recording. We don't have a transcript of the hearing, and we don't know what other arguments the court may have considered, but this is troubling.

In my opinion, StemExpress could have made a decent argument if it had focused on the apparent fact that CMP signed nondisclosure agreements and then violated them. First Amendment rights are broad, but can be deliberately waived. That's why confidentiality and nondisclosure agreements are often enforceable. While the state of the law isn't perfectly clear, there's a colorable argument that threatened breach of a nondisclosure agreement may be a basis for prior restraint if the underlying confidentiality interest is strong enough. It's not a bulletproof argument, but it's much better than ignoring the prior restraint issue entirely.

In sum: if the court based the prior restraint on a violation of California's secret-recording law, I think it probably violates the First Amendment. But the order might be sustainable because CMP engaged in the dubious practice of signing a pledge of confidentiality with the intent of breaking it.

Right now CMP is bound by the order: its options are an emergency appeal or a knowing violation with all the consequences that follow. However, if CMP already provided the video to someone else independent of them, that person has the right to publish the video, and almost certainly can't be subject to prior restraint. The Supreme Court has made it very difficult to prevent the media from publishing illegally-obtained materials of public interest when the media in question wasn't complicit in getting those materials.

Last 5 posts by Ken White