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.
- Before you ask, when you're law enforcement, nothing's illegal, because TOUGH ON CRIME. ▲
Last 5 posts by Ken White
- Lawsplainer: How the Eleventh Circuit Let Florida Shut Up Doctors About Guns - December 16th, 2015
- My Four Favorite L.A. Times Comments - December 15th, 2015
- The Popehat Week In Review: December 11, 2015 - December 11th, 2015
- The Road To Popehat: Questionable Life Choices Edition - December 10th, 2015
- Trumpeting The Right Not To Be Called A Bigot - December 9th, 2015
To take this to a meta-level: let's put Planned Parenthood aside and consider what legal structure we'd rather live under: one where undercover investigative videos are allowed, or one where they are disallowed?
For purposes of this discussion, perhaps consider that the target of your sting is your worst ideological enemy: an abusive police department, a hunt guiding firm that deliberately targets endangered animals, a firm that purposefully discriminates against LGBT engineers, etc.
I suggest that all in all, I'd rather live in a society where sting videos are legal.
Planned Parenthood partisans: any rebuttals?
*Clicks link to blog post, excited to see what Ken has to say*
*Closes window*
Do we know if CMP appeared at the ex parte hearing or filed an opposition? It's a little unclear how extensively the court considered the First Amendment issues. I'm not surprised that the plaintiff didn't brief them extensively; nor is the absence of a written decision from the court unusual.
Scott Jacobs:
I don't know Adam, so I'm not biased. But why in hell would you leave a comment like that? What's your goal?
Clark, not a partisan to planned parenthood but I think there's a non-crazy case to be made for prohibiting disclosures by people who have agreed not to disclose those things.
For instance, if you hold a classified security clearance, it is clearly proper that the government can punish you, even severely, for breaching the confidentiality to which you agreed.
If the government had information to indicate that someone with a clearance planned to release classified documents, I think it would be proper for them to be able to seek a court order prohibiting that act. Much like I can seek a court injunction prohibiting anyone else from undertaking a criminal or tort act against me if I have good reason to believe they are likely to do so.
The bar for showing this is fairly high, but in the specific facts of the case, where the defendants signed a broad confidentiality agreement (under fraudulent pretenses) specifically with the intent of breaching the agreement, it's not totally implausible.
I think the right course re: sting videos is one party consent. That would make the video itself clearly lawful, and is just a better rule all around. But a sting video in the form of a planted bug I would find disturbing.
@Peter H:
Oh, absolutely! I agree.
This is a fairly deep topic, where fundamental rights conflict (or seem to; perhaps we have to define one right as less fundamental than another). What rights are inalienable? Can one be held to absolutely any contract?
In my more purely ancap days, I'd have said "yes".
"Dubious" practice? Ken, how about "fraudulent inducement"? They signed an agreement with absolutely no intent to comply with it. But, hey, who cares about the rules when you have an agenda to push, amirite?
I think these guys are frauds, and I hope they are sued into a smoking hole in the ground, with personal liability notwithstanding the corporate veil.
But Clark is right that "sting" videos should be considered a necessary tool for in the fight against lies and tyranny.
Investigative journalism is filled with such acts. 20/20 made its bones doing virtually the same thing.
@DP:
That's not what the post is about. But I'm sorry if I didn't emote on that particular issue enough for you. Thanks, at least, for not being the first to be angry that I wasn't pro- or anti-abortion enough.
Oh, I'm not angry. Sorry if it came across that way.
Clark–sting videos are fine and I think they are important to show people what goes on. However, if someone has taken the legal steps to prevent you from disclosing things and you disclose them after entering into an agreement not to (and never intending to abide by that agreement), don't act all self-righteous when they go to court to vindicate their rights (regardless of whether you agree morally with what they are doing). The ends never justify the means. Cons and libs play this game all the time, and I think it is despicable to justify something based on your goal.
@DP: if signing agreements provides immunity, then every firm that discriminates in hiring can just have you sign your paperwork before you join, and then – once you're a member – be very clear "oh, and when you help us interview people, make sure not to hire any n___."
Would you think that a "gotcha" video of that is beyond the pale?
> don't act all self-righteous
People argue in court as a ritualized power display and as a tool to achieve outcomes they like.
It's a category error, IMO, to give this moral or interpersonal weight.
Some of the laws in play here bother me (the "two-party" recording rule takes the right to privacy to ridiculous levels, and "unfair competition" is far too vague) but I'm generally in favor of binding contracts, even when they're NDAs. That said, I'm in favor of a right to break NDAs in order to expose illegal behavior. The trouble that CMP has here is that they haven't found any evidence of illegal behavior (gross and immoral, but not illegal) but they've been telling everyone that they've exposed a criminal conspiracy or something. They're idiots, and I'm not surprised to see that they're (potentially) criminal idiots, too.
@Scott Jacobs: As soon as I'm off probation here, I'm going to replace all of your comments with praise for a randomized list of Breitbart editors.
Clark, this might be a useful comparison.
There probably is a strong First Amendment argument against this use of recordings laws. It's broad in application, and indeed it's hard to think of any way to produce evidence of wrong-doing when that evidence requires permission from the subject of the expose. At an even more meta-level, it'll just encourage more of this modern media disaster where we end up with video evidence anyway, but it's been washed through two or three intermediaries who reasonably refuse to provide their sources or any way to judge the veracity of events. That strikes me as even worse
That said, I don't think that sting videos are as obvious a public good as they feel at first. The laws and caselaw here are the same ones used to protect people from peeping toms (see Gibbons 1989) or blackmailing voyeurs, most obviously. If you work in any career field larger than a few thousand individuals, it's not hard to imagine a surreptitious video of someone in that field describing your normal everyday and necessary actions in a manner that would horrify uninitiated outsiders. Yet while many recordings are horrible abuses of privacy, many others are legitimate stings of improper actions: there are sexual actions that are wrong even if done in private, and there are certainly common practices that are.
And we can't just rely on just allowing videos of illegal activity. Neither recorders nor recordees could conceivably understand what is and isn't lawful, and even if they got lucky and managed to hit the sweet spot, many unlawful actions are perfectly ethical (cf Lawrence v. Texas) and many lawful actions often aren't (my personal bet for the Planned Parenthood conduct in question here). If we had a population that cared about sane matters rather than popular ones, perhaps it wouldn't be an issue, but we don't, or even a way to distinguish the two.
I don't have the wisdom of Solomon; I'm not sure how you cut that baby.
Isn't this similar to the ban on secretly recording in agriculture settings to show animal cruelty? i think some states have passed laws under the guise of anti-terrorism to prohibit such recordings.
Clark, I think an agreement not to report illegal activity would likely be held as void as contrary to public policy. With respect to this issue, I don't think – at least if I were the judge (the law isn't completely established here and could probably go either way) – there's enough to justify prior restraint. But I don't see how liability for damages can be avoided unless you're going to say that nondisclosure agreements are categorically unenforceable, which is pretty extreme.
@Tice with a J
Not in agreement with CMP but I have been seeing a lot of people saying that PP is violating National Organ Transplant Act of 1984 though an initial reading seems to indicate that the act prohibits buying or selling organs for transplant purposes explicitly. The legality of selling tissue for other purposes may not be well defined.
But I would imagine PP becomes legal owner of the tissue, limbs, and organs as 'medical waste' though many would find that description alone inflammatory.
@5trange0ne
But there's no evidence in the tapes that they're selling the tissue. The law explicitly permits charging for transportation and storage of donated tissue, and as far as I know, it's standard practice to charge for those things. I haven't heard anything that suggests that PP is doing anything with fetal tissue that isn't done for all donated organs.
But PP isn't trying to encourage people to have more abortions because they turn some kind of profit on this. People come to them for abortions anyway; if the remains can be used in a way that has at least some utility, then why shouldn't they be? We don't disallow organ donation on the grounds that it's icky. And thank the gods for that, otherwise I'd be even more blind than I already am (cornea transplant.) I think that using tissue harvesting as a club to beat PP with plays on irrationality and a misguided sense of propriety among the audience.
…
Oh, hey, Gattsuru! Haven't seen you since you got banned from RPGnet. Glad to see you're still around, man.
@5trange0ne
There's a separate 1993 law that prohibits the transport of specifically fetal tissue for 'valuable consideration', regardless of ownership or purpose, in addition to further restriction allowable transplantation.
The trick is that 'valuable consideration' has been read to allow reimbursement for costs. Since Planned Parenthood is a non-profit and the time of every individual worker acting around the abortions is a cost, it's pretty hard to violate the law here — I'm not sure they could short of spending the income on their non-abortion services or if the recipients of the tissue paid individual people directly.
That said, some of the transcript (the 'break even' language in the first video, for example) could be read as an acknowledgement that they're doing treating the rule unseriously, just as some of the other transcripts seem to show indifference to the ban on partial-birth abortions. That's probably the trickier part : even if the recording individuals actually believed that the described acts were illegal, I'm not sure they had the necessary information or knowledge to evaluate it.
It would be interesting to know if PP has rules/practices in place that would delay abortions in order to harvest bigger, more mature organs – thus increasing risk to the mother. Risks include bleeding, infection, scarring and infertility – not to mention emotional, cognitive and hormonal trauma.
Such practices would increase the legal liability of PP and its sister organizations.
It is known that PP gives women low doses of contraceptives, increasing likelihood of pregnancy with missed pills.
No doubt, in the 9 or so upcoming videos and 300 hours of filming, many of our questions will be answered.
Abortion workers and activist groups with whom I have interacted, are hard-nosed, completely committed, without compunction and self-doubt, willing to lie to media/law enforcement and to bully and punish anyone who gets in their way. They have been to SCOTUS before and they will not hesitate to do it again.
"But there's no evidence in the tapes that they're selling the tissue."
I take it you haven't actually watched the videos? Because that's not how the negotiation comes across; They're clearly not looking for mere compensation for expenses, but all the market will bear.
My first reaction is, NDA, sure, but this looks like a case where the NDA's going to be void as contrary to public policy.
My second reaction is, whether or not he should have issued the restraining order, the stakes just got higher, as they released the video anyway.
"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."
If I understand the TRO process correctly, at this stage there has been no finding that CMP signed such a pledge, just something like that PP has a reasonably likely hood of showing this. Does that make a difference?
@Clark:
Factual correction: You mean, StemExpress partisans. As Ken so plainly put: "The lawsuit in question came not from Planned Parenthood,, the lead target of the CMP's campaign, but a company called StemExpress."
Let's not let our biases obscure facts, yes?
@castaigne
Castaigne, don't correct me when I said exactly what I intended to say and you merely misunderstand it.
It's almost as if I used the word "partisans" in its dictionary sense. Perhaps because I wasn't referring to who filed the lawsuit.
I'm coming to the position of "recording" being "self-defense".
Releasing the recording being a completely separate issue.
But: Self-defense -> Second. "Bear arms" -> doesn't just mean muskets, let's put "cell phones" on that list.
"Eviscerated" is a good word for this case. Does it matter that the conversation occurred in a public place?
You don't buy a Lamborghini off reimbursement for expenses.
Some seem to be of the opinion that everything falls under an NDA. But I don't think this is the case. Even this NDA (see this) identifies it's limits to basically those things that are not public knowledge. But there is another smaller circle that the information must full within, namely, that it's a trade secret. The NDA is not created to protect from social outrage but from unfair competition. If the CEO rolls her Rs or has a lisp, is that protected? Any thoughts?
Isn't "To Catch a Predator" filmed in LA? How do they get around the two party rule?
Looks like StemExpress is attempting the German bankers and jewelers defense….
"We didn't 'know' the gold fillings, Jewish menorahs and money was from the death camps….."
You didn't know because you didn't want to know…..doesn't make you any less culpable.
Can someone clarify the relevance of the order to the fact that this conversation took place (if I understand correctly) in a restaurant?
I'm not sure how this qualifies as a private conversation, given that any random member of the public who happened to be sitting at a nearby table could have heard it. (I'm assuming they didn't take any particular measures to ensure privacy such as taking a private room in the restaurant, etc.) If the recording did not take place in private, does the rationale for restraining its release even apply?
@asdf: I imagine that since they did the initial contact online, they put it in the EULA. "Item 47b: You acknowledge that this website is maintained by a media organization and is used solely to catch online scumbags who want to diddle little children. Item 47c: You acknowledge that you may be filmed at any time and the film is the property of the media company. Item 47d: You expressly give consent to use of your image without compensation, even if it portrays you in a negative light and leads to prosecution and incarceration.
I mean, it'd work, wouldn't it? No one actually reads EULAs
About that Non-Disclose. A person cannot make a contract to perform an illegal act. Can the argument be made that they were (at least arguably) breaking the law and that made the non-disclose an illegal contract?
according to a post over at the Volokh Conspiracy, the NDA with StemExpress was signed about a month after the hidden-camera recording at issue was made.
as an interested non-lawyer, I'm grateful that I can find some cogent legal analysis of this on the web — thanks!
[…and let the Streisand effect begin!]
@Alan S.
Anyone who interacts with the media is learning that. Note that CMP defused the PP partisans by releasing the entire videos, not just parts of them. That hasn't stopped the "heavily edited" mantra that PP and most media outlets keep repeating, though.
I'm reminded of the anesthesiologist who got hit with a defamation lawsuit when the patient recorded his operation (he intended to record the doctor's instructions when came out, worried that he wouldn't remember them and got much more than intended). You may not like what the practitioners of a profession say when they're practicing it, especially so when they have cognitive dissonance about the acts they're doing.
@Nathan M. Easton:
Aye, long time no see.
I don't think it's entirely based on irrationality: there's something particularly ghoulish-feeling about the recorded behavior here (I expected the segue from types of wine to livers to be edited in, nope), but it's also an emphasis on pretty much the least pleasant parts of Planned Parenthood and abortion you can point to. This gets a lot of attention on later-term abortions that poll badly, and on business aspects that are much easier to criticize that individual women.
@Black Lives :
California's law is dependent on 'confidential communication', rather than public-nonpublic place as for the tort of intrusion on private place. That's a complicated test, but Wilkins v. National Broadcast suggest that if the discussed matter was treated as a secret then it probably would count, depending on whether other people could have reasonably overheard.
I would argue that a contract of non-disclosure that has the effect of concealing potentially illegal behavior is contrary to public policy it not enforceable. No one really believes in this case that that plaintiff is protecting legitimate trade secrets or legtimates IP interests generally. They are trying to shield themselves from damning disclosures of business practices that are legally suspect.
As for the CA law, it should be overturned. It is offensive the human dignity on its face by criminalizing behavior without regard to intent ( the main purpose of illicit recordings in many cases is to protect against future false accusations) and as selectively applied ( anyone remember the previous owner of the Clippers getting redress for his private conversations being linked and the damage it did to him, or of cousee the use of recordings by law enforcement). Thanks Justice Kennedy!
Have there been any cases since Wilkins that discuss under Penal Code Section 632(c) what a "communication made in a public place" is?
@Sean D Sorrentino
I think they're separate actions. Consider that if the outcome of the meeting were a decision *not* to consummate the deal, the NDA would still bind.
Now imagine that they did come to an agreement and signed the contract. So your law is triggered, and the contract is invalid. How does this outcome have a different effect on the NDA?
@Nathan M. Easton,
We do however prohibit organ donation from prisoners on death row for various reasons: one of which is the possibility of coercion.
I have been re-reading Paul Linebarger's expert opinions on the sort of law required in a High-Tech futuristic society.
He claims it will be necessary to centralize power in a small, elite group who hold themselves most strictly to account.
Our society has not gotten there, yet, but the Civil-Disobedience-on-steroids of the CMP is an example of truth which
had to be exposed, and acted on (admitted as legal evidence), and punishing _all_ parties as they deserve.
That should actually be "communication made in a public gathering," not "place."
It is illegal to sell body parts, or donor tissue, this is in fact what PP has done. They cannot claim this is non-donor tissue. PP can also not claim that they are charging for services rendered in obtaining that tissue – because PP is the processor and seller, they are therefore selling donor tissue. PP would have to have used an independent harvester of the tissue who then charged PP for that service. In that situation, PP could then sell the donor tissue for the cost of the harvesting plus reasonable administrative fees. Since late 1990's large companies have gotten their snouts into tissue banking and have skyrocketed the costs of harvesting by this method and maintain what is often a local monopoly through a corrupt allocation system, often in the hands of federally licensed agencies. PP however is beyond the pale in its practices. What is interesting to me is that the donor relative (the mother) now has a tort case against the PP for selling her donation. PP will owe these women a ton of money, plus punitive damages for emotional distress and other cocked up ideas. PP has a great chance of going into bankruptcy from class action suits.
jaed, if the conversation took place as described by the request for the TRO then most likely it will be found that the conversation was intended to be confidential and it was improper to record it without the permission of all parties. if the conversation happened otherwise and there wasn't silence when severs and others appeared, there was no attempt to keep volume down or something like that then the conversation will likely not be found to have been intended to be confidential and anything which could have been recorded by a passerby is fair game. IIRC (but this is hazy) Cali is one of the states which considers confidentiality to be an all or nothing issue, let one water approach the table without raising a hand for silence and the entire conversation ceases to be confidential.
As for the NDA, I suspect it is a non-starter. Since they apparently had an ex-employee tell them all about the company who took confidential documents and gave them to CMP, clause 2C exempts CMP from a confidentiality obligation under the NDA to any information derived from what the ex-employee told them.
I have no idea what laws exist that might apply to receiving and distributing stolen confidential information. It used to be that receiving stolen goods only applied to tangible property but the field of data as property has been in flux for the past few decades and I suspect even an expert would need to research the issue to have an opinion on that claim.
I'm curious if the NDA is valid since CMP was in possession of information prior to signing the NDA. Which possession is one of the points made in the NDA provided to the court as not applicable.
@Clark:
You're right, I shouldn't assume good faith when you speak. You don't speak in good faith. Sorry about that.
I see. You're asking Planned Parenthood partisans to provide a rebuttal for someone who is not Planned Parenthood, but instead a third-party broker. And you have no ulterior motivation for that. Gotcha. Sure.
Nice use of the association gambit in rhetoric with a loaded question, with an implication of the spotlight fallacy. If you ever wonder why I feel the way I do about you, note that your claim to Catholic piety while engaging in such tactics plays a large part in that disdain.
Ken, the code makes these kinds of recordings inadmissible, but they can be used for impeachment.
As for the comment about TRO's, the threshhold is relatively low. TRO's in California can be obtained on an ex parte basis as Ken explained. That means you get 24 notice and they are intended to maintain the status quo until a noticed motion can be filed with the minimum amount of notice (16 court days in California). At that time, the hearing will be held on the preliminary injunction and the party seeking the PI must show a likelihood of success on the merits and irreparable harm. If money damages will compensate the party for any injury it may suffer, then an injunction is improper.
I don't think this case is amenable to an injunction. The defendant isn't stealing trade secrets in order to steal their business. On the other hand, the plaintiff will suffer reputational damage (with half the population) and perhaps, a criminal referral (although in LA County and California the chances of that are essentially zero). Therefore, I predict this PI will be denied.
On the other hand, the issue of a NDA is a serious one. I tend to agree with the commentors who believe that it may not be enforceable in this context. The ABC News 20/20 example is worse than this. In that case, a producer posed as a job applicant at Food Lion, got the job, proceeded to ignore his supervisor's instructions to replace prepared food in the cases as he was hired to do and then produced a story about how Food Lion sold food that was old and unfit for consumption.* It was along the lines of NBC rigging truck explosions. In this case, the defendant didn't create the issue, it merely videotaped what happened.
* google the video that was produced by Food Lion's lawyers. It was shown to the jury that found ABC News guily of fraud. It is one of the most egregious things I have ever seen. The ABC producer was hired to change out the food and ABC's own cameras video taped the supervisor instructing the producer to change out the food. The producer didn't do so and then blamed Food Lion for it. Dianne Sawyer is a con woman.
@gattsuru and @Lagaya1 –
IANAL, but the "ag gag" laws governing pictures and recordings on farms was the first analogy that came to mind for me as well. It makes for an interesting contrast, because the sort of people who accept undercover stings against conventional farms (ie, so-called "factory farms") and the sort of people who accept undercover stings against abortion providers (ie, so-called "baby killers") generally divide into two different groups. Looking at the principle instead of the principals makes one examine one's priors, it surely does.
Further considering the analogy comparing filming alleged animal abuse and filming conversations about alleged PP bad actions – part of recommended employee contracts for farms (and nursing homes, and schools, and so forth) is a requirement that employees who witness possible abuse immediately report this to a supervisor. (In an ideal world, this allows the employeer to investigate and correct the problem – which might be a mistake on the observer's part, a hole in training, bad procedures, or willful misconduct on the part of an individual employee.) Animal rights undercover activists who stay in a position for weeks or months to gather "evidence" break this contract.
In most cases, farms where the employee violated their contracts in the pursuit of good video have not been subject to civil action – reportedly largely due to the fears of the Streisand Effect.
@Clark
You do realize that there is a reason why the fully reversible top swing window doesn’t actually close when fully extended right?
P.S. BTW, you might want to consider copyrighting some of your more deep and original thoughts…
https://www.google.com/?gws_rd=ssl#q=%22People+argue+in+court+as+a+ritualized+power+display+and+as+a+tool+to+achieve+outcomes+they+like.%22
It would be a terrible shame to see you finally come up with your very own rendition of La Complainte du Partisan only to have the more mystical elements of your rendition stolen.
@Castaigne: What do you think a Venn diagram of StemExpress supporters and Planned Parenthood supporters would look like? I think it would just about be concentric circles. Even if that wasn't the case and there was no overlap whatsoever, Planned Parenthood also had secret videos of them taken by the same group, so asking the question of Planned Parenthood supporters would not be out of line.
It really comes down to the nature of the information the company is trying to withhold.
For example, if under an NDA, you get a sting video of a couple of contractors conspiring to fix prices, but in part of the negotiations it is revealed that one of the contractors is has a mechanism to cut 2% of their logistics costs.
The contractor would have a legitimate argument for gagging the part of the video that explained how they cut their logistics costs, but not the parts of the video where they were discussing price fixing.
Now, in this case, it sounds like StemExpress is trying to gag the whole thing using select bits that contained competitive information, and while they will probably get just those tiny bits of the video excised, that's probably not going to get them what they were really looking for.
A: For the NDA to grant StemExpress the right to prior restraint on publication, you would need three things
1: They gave CMP new information at the time of the recording
2: Releasing that new information would harm SE, and the harm wouldn't be adequately compensated for by financial penalties against CMP
3: SE wasn't doing anything illegal, and wasn't aiding another in doing anything illegal.
B: PP's "non-profit" status is entirely irrelevant. The PP President getting paid more because of funds generated by the tissue selling would still be a violation of Federal law.
C: Take the cost of doing the abortion, extracting the organs, and delivering them to SE. Subtract the cost of doing the abortion, and none of the other things. If PP receives more than that for the organs, they're violating Federal law. Anyone want to seriously try to claim that PP isn't getting more than that?
Listening to the folks with agenda on here is almost (almost) funny.
Pro-choice folks are missing the first amendment issue and anti-abortion folks are just spouting random rightwing talking points that have nothing to do with reality or (more importantly) the issue at hand.
sigh….I expect better from this place.
We may know the full extent of evil in our society when we know WHO BENEFITTED from body parts of infants aborted at Planned Parenthood and HOW WERE THEY SELECTED?
@Castaigne: Don't bother trying to reconcile the things Clark says with anything contained in the Gospels. In my experience, citing Scripture in a comment to a post that overtly discusses faith and morality-type subjects gets your comment consigned to deleted oblivion, it's aces.
I was going to stay out of this discussion, but holy shit, Sibyl S.
No. Planned Parenthood do not get women to delay abortions because they'll get a better "harvest". Abortion is, like, three percent of what they do – providing the tissue to medical researchers to *advance medical science* instead of incinerating it, in return for defraying costs to a service that *has no government funding*, is not going to be worth turning into cartoon supervillains over.
They also don't give "low doses" of birth control to try and cause more accidental pregnancies. Accidental pregnancy can happen if you miss a dose, regardless – or if you have a stomach upset, or if you take too much vitamin C one day – and pushing the hormone content of the pills to make that not happen would make for truly horrendous side-effects.
Not to walk face-first into the elephant in the room or anything, but: the whole central basis of this shit is that people object to the fact that Planned Parenthood perform abortions, regardless of all the other vital medical services they provide to women and families who often would otherwise not have those services at all.
Which means you are objecting to their performing medical procedures on women who have decided to have them, which means that apparently you think you should get to make other people's medical decisions. If you think that, you are wrong. You would have no more right to decide for me whether I was going to terminate a pregnancy than to decide for me whether I was going to get a pap smear (another procedure Planned Parenthood do).
Is abortion morally right? That's a difficult question! Personally, I don't think it is, generally speaking… but there are lots of things that I think are immoral which are still legal. Premarital sex is legal! Divorce is legal! Saying hateful things in the name of Christianity is legal! All of these have more Biblical justification for criminality than abortion, but they're legal, and they should be, because laws are not based on religion in a country that's even faintly sane.
And without religion, you're going to struggle to make a case for why a collection of cells, existing parasitically within a woman's body and incapable of survival outside it, is something she shouldn't be allowed to have removed if she wants to.
Hey
now
now now
!
Sami? Hold on.
Granted masturbation is only .35 cents. But seriously, focus! You are mucking things up down here.
Father Guido has something to say about all of this but you have to do the work.
Ok Then….
I guess it is not Friday.
History is translucent! Ken carries water, Clark visits the assumptions as though the modern-day commode, yet to be designed, is but a stones throw.
Salute to you and this post Ken.
Wow!
Not necessarily, or even close, to the outside mastery of your sphere of confidence but certainly with a few gentle extra ounces of flesh.
May you continue to separate the beauty from the beast!
Delicate is… Not very delicate at all.
Cheers!!!!
https://www.youtube.com/watch?v=SRHJiqfwnac
P.S. please excuse the instigation and heckling in your backyard.
@Sami: I would remind you that everyone who lives or who has ever lived started out as one of those parasitic lumps of cells. Comparing a fetus to a tumor only makes sense if the tumor has a chance of growing up and gaining voting rights.
@Marc: A fine sentiment, and one I wish to amplify. Thanks for the analysis, Ken and Adam. We appreciate it.
Too many comments trying to justify PP's actions. They are clearly haggling. No one haggles over fixed costs. They are readily known and calculatable. One only haggles over profit margin. What they are doing is clearly unethical and certainly potentially illegal.
It is irrelevant what other services they offer or how much societal good they may provide.
@Sami:
Actually Sami, i believe that most people don't object to the fact that PP performs abortions. I believe they object to the fact that the Feds are giving them ~$500,000,000 to do them with. Granted, my statement is based on anecdotal evidence, gathered from the chatter of friends, family, and co-workers. No one who opposes abortion is going to approve of anyone who does it, whether it's PP or not, so I'm leaving those people out of my purely unscientific survey. I think PP's fetal organ harvesting and sale is what pushed people over the edge.
I don't believe PP is the only supplier of vital medical services to women and families who often would not otherwise have those services at all. They do seem to be the only ones getting a half of a billion dollars to do it with though. I'd be happy to be corrected if some other organization is getting that kind of money for the same medical services, so please post any information you have on those.
You left out the organ harvesting from the late-term abortions where the "collection of cells" is capable of surviving outside the womb.
Honestly, I look at it from a privacy point of view. Giving an absolute right to the press to not just say what they want, but LEARN what they want by any means they choose, removes any semblance of a right to privacy. The public really does not have a right to know – it has a strong DESIRE to know in many cases, but I have a rather strong interest in keeping my own private activities private.
Oddly, this reverses a bit for me when the government does the sting, per footnote 1. Not to say that there shouldn't be VERY strong controls and safeties here, but still: the government is we, the people. It's all of us. It's the democratic instrument. When the people as a whole decide that an investigation is worthwhile, I find this MUCH less onerous than when some individual decides to do that investigation.
Of course, I might think differently if the videos had shown even a single instance of wrongdoing so far, or if idiot politicians weren't taking the normal approach of 'oh gosh, people are mad! Let's use this as an excuse to pursue our political program of taking away fundamental rights to healthcare by denial of healthcare availability!', or even if the author of the videos hadn't flat out explained how this was all part of an attempt to make a necessary medical procedure impossible to obtain, if not outright illegal. Honestly, if one of those two things were not the case, I might feel differently. But in context? We have a bunch of videos showing nothing at all illegal (or even the slightest bit unethical), specifically designed to inflame the passions of people who would rather make something illegal than realize that nothing wrong was done, and a huge number of people reacting in a way that might well crush the organization that was 'stung'. Because actual facts matter less than personal outrage when it comes to healthcare.
Given the results so far? I can hardly blame Stem Express for wanting to keep its private dealings private. And I can hardly blame the court for denying the defendants the 'right' to release an illegally recorded video at least until the case is resolved. Prior restraint being very limited does indeed favor defendants, and it's almost always good to favor defendants. But given that damage done by 'free speech' can honestly never be undone… SHOULD it be so very set in stone that prior restraint is a bad thing?
It would also be interesting to know how much of Planned Parenthood’s considerable injection of federal funds, fees from abortions, funds from the sales of baby parts and the profits of middle man baby parts sales companies are cycled back into politicians’ campaign war chests.
For their part, politicians have assisted in creating the profitable market for infant parts by funding research grants through to NIH.
As Richard commented above, it is a crime to sell the parts and another crime if the mothers were not told their babies’ organs were being sold for Lamborghini-size profits and bonuses for PP directors.
Following the money would open the eyes of the largest group of American voters – those ‘middle Americans’ who still have viable consciences and value human life as something to be cherished and protected, not exploited – or extinguished – for sexual gratification, convenience and financial profit, which is the basis of slavery, prostitution, tyranny, genocide and abortion.
@David C:
I personally don't care. What interests me is the legal issue that Ken put up, which concerns StemExpress.
Last I recall and last I checked, PP has not requested an injunction ala StemExpress. I think conflating the two is, at best, unintentionally ingenuous and confuses the discussion. Clark was not being ingenuous. He's too intelligent; therefore malice.
Just to make my own positions clear, before I get accused of an agenda:
* I think the injunction requested by StemExpress should be shot down and the videos allowed to be released.
* I think if either StemExpress, CMP, or PP have violated the law, the malefactors should be prosecuted mercilessly and subjected to the heaviest fines, jail time, and punishment.
* If PP loses its funding, I will not be sad. They get plenty of private donations anyway.
* I am already aware that the guy who made the videos at CMP made them because he believes the aborted parts are being ground up and put into vaccines to give children autism, and while he's a fucknut, it should have no relevance in future legal proceedings as its not germane to the issue.
You see, unlike Clark, I make myself PERFECTLY clear. No weaseling for me.
@Sibyl:
You do realize that they're not turning a profit on the 'sale' of these donated organs, right? And that they get full consent each and every time, right? And that, frankly, they are selling them BELOW cost (most EASY tissue to collect sells for rather more than $100), right? Heck, COMPARE Stem Express to PP: PP charges $100 for the exact same thing that SE gets several thousand for. PP is NOT turning a profit.
As for the lamborghini? It was a joke. That's really, truly all it was. And even on the off chance it wasn't? The woman explained how very low throughput the PP under her jurisdiction were, and how they hadn't even done donations recently. At the suggested reimbursement rate (consider that, at the $75 she requested, $50 of that goes straight to overnight shipping), that's $25 per specimen (in that particular video, the doctor claimed that the fee was 'per patient', not 'per part'). There are about a million abortions a year in the US, of which roughly a third occur at planned parenthood clinics. And in the US, about 5% of abortions occur in the second trimester (eg: when useful organs have any reasonable chance of being harvested). And a lamborghini costs $200,000. So, at BEST, assuming that every single woman in the country has an abortion at the same clinic, and every single one having an abortion late enough to generate useful organs grants consent, and every single such operation DOES generate useful organs, and every penny not being paid to UPS instead went into the car fund… then yes, she could afford 2 such cars by the end of the year. But that's a LOT of assumptions that need to be made. If we consider that there are over 800 such clinics in the US, and assume something approaching an even spread of patients between them, then it would take 1 clinic over 400 years to buy such a car. And, again, this assumes that every single penny that doesn't go to paying for shipment of tissue samples goes into the car fund.
It really, really is not illegal to charge a modest fee to recoup expenses. If you don't LIKE the idea of people donating medical waste from medical procedures to science, that's fine, and arguably even reasonable. Granted that a lot of people would be dead without those donations, but hey, what's death really, it comes eventually no matter what, right? But really: don't pretend that PP is making a profit off of donations, or selling them in some illegal way. They're not. In all likelihood, they don't even break even, and do it only because the patients want it done, and to help the research community at large.
Yeah, I had heard a Lambo cost an arm and a leg…
@Sami thank you
My recollection (admittedly based on experience a decade old) is that the unlimited standing provision of California's unfair competition law you characterize as "annoying" only applies to suits on behalf of the general public for injunctive relief to stop false advertising. This makes sense, because the primary purpose of the law as stated in the law itself is to protect consumers, and any potential consumer having the knowledge to know that an advertisement is false and therefore to bring suit would not himself be in any danger of being misled by it, and would therefore not ordinarily have standing to sue for injunctive relief under ordinary principles of standing. I would say that the anti-SLAPP statute would serve to circumscribe potential abuses of this limitless standing, except that (1) in the case I was involved in the anti-SLAPP statute was itself applied abusively to a meritorious claim, and (2) I believe the anti-SLAPP statute was subsequently amended (too late to help us; and I have to wonder whether the amendment was enacted in response to our case) so that it no longer applies to suits brought on behalf of the public interest.
Of course… It's not like the request was from a prosecutor or something…
A disturbing observation from the videos of Planned Parenthood staff conversations is the indication that some of the infants are alive after delivery is induced, immediately prior to (or during?) the dissection of their organs.
In one video, the person dissecting the human fetus exclaimed with delight, "It's a boy!" In past investigations, abortion clinic staffers have been known to exult in the extermination of males.
The CMP investigation is providing sociological/cultural evidence as well as criminal/legal evidence.
Hm.
I've certainly got my biases, but I always respect and appreciate your approach to these issues based on what the law is instead of what side any individual person may be rooting for. I'm inclined to agree with your analysis that prior restraint based on wiretapping laws isn't likely to pass constitutional muster while prior restraint based on the signing of an NDA might.
Clark raises some valid questions on the latter, though; there are certainly cases where violating confidentiality in the public interest is defensible. In those cases, I'm inclined to think that the correct approach is to allow publication and determine later whether it was illegal, rather than to impose prior restraint.
I'm also inclined to think that, whatever your views on Planned Parenthood, StemExpress, CMP, the abortion debate, or this case in particular, attempting to suppress the videos isn't going to do Planned Parenthood or StemExpress any favors — though if there were a way to compel CMP to release the full, unedited videos, that might get us closer to an objective analysis of what actually happened.
It seems to me here on the NAF injunction they went with violating non-disclosure.
http://prochoice.org/naf-files-for-injunction-against-the-center-for-medical-progress-cmp/
"You do realize that they're not turning a profit on the 'sale' of these donated organs, right?"
My experience in speculating suggests that it is in fact possible to sell an item for no profit.
"And that, frankly, they are selling them BELOW cost (most EASY tissue to collect sells for rather more than $100), right? Heck, COMPARE Stem Express to PP: PP charges $100 for the exact same thing that SE gets several thousand for. PP is NOT turning a profit."
Let's say a manufacturer makes a case of widgets and sells them to a retailer. The retailer then sells them for triple the price he paid the manufacturer. Are you telling me the manufacturer could not have profited from his transaction? I hope not; that would be bad news for nearly every factory in existence because this is the normal model for retailing.
Thad :
I believe they released the full, unedited videos right from the start.
@Sibyl
You got your bookmarks mixed up, this isn't your Kitten Burning Coalition LARP boards. This is a discussion about the real world, not your fantasies about being oppressed by evil people who want to do evil because they are evil. Also while Culture Warrior is a fun class they aren't very effective in group content, you should play a Social Justice Wizard instead – same DPS but way more utility.
Wow – a talking/typing ape. Must be from some experiment with PP spare parts…yet despite all that effort, it still has the mind of an ape.
Now that's a new one, suggesting there are people who get sexual gratification from abortions.
@Careless: I can clarify. The accusation is that people who don't want to be pregnant after having sex get abortions to avoid the natural consequence of their action.
Well, I read the underlying docs.
1) per the complaint the recording took place a month prior to StemExpress getting an NDA. Bit hasty to say *someone* *some corp entity* signed an NDA without intent to abide by it don't you think?
2) NDA has a merger clause and does not mention the convo one month earlier. So that's on StemExpress.
3) Dyer can say that they had a prior oral agreement convo would be confidential – if she's not telling the truth there's always the tape!
Also, NDA doesn't cover all communications, see also objection 1. Is the NDA relevant to disclosing Planned Parenthood supplies some whole, fresh baby corpses??? I don't see it…
4) CMP is not BioMax – they're separate duly organized corp entities. Did CMP sign an NDA? Nope.
On the policy issue, baby brokers are…scum. There's no reason to commodify the human remains of those who died unnaturally and with no say in the matter, save for the reason that some American persons are morally bankrupt or Pfizer.
Liberals: you down with executing death row inmates in ways that preserve their organs for the highest bidder…which might be PepsiCo.
All I'm trying to say is this fine country needs to immediately investigate the death of Cecil the Lion. Peace out.
hey, Sibyl – you know humans are apes, yes? We're also mammals, and vertebrates.
(oh, and for the record, you can't dissect anything that's still alive. By definition, it's vivisection. If you're going to froth at the mouth, be terminologically accurate.)
@Clark I am quite definitely strongly pro-choice (which I'm guessing is where you were going with 'PP partisans') but would still be in favour of the video's release simply on the grounds of "lots of investigative journalism relies on this". I would also be in favour of the people who took the video then getting sued for violating their NDA and losing simply on the grounds of "you signed the contract, hello?" (though I have no thought out opinion on how punitive damages, if any, should then be).
I find the specific issue the video's trying to highlight incredibly difficult to care about though, since I really don't honestly care what happens to the remaining meat after brain death has occurred.
Hopefully this is the sort of response you were intending to solicit (I'm genuinely confused by all the people saying your request was disingenuous, since it read pretty straightforwardly to me).
@Matt S Trout (mst):
Matt, it was an excellent response. I admire people who adhere to principle, not just tactical advantage.
Thank you.
@Guest Poster:
Your naiveté is endearingly charming.
"And that, frankly, they are selling them BELOW cost (most EASY tissue to collect sells for rather more than $100), right? Heck, COMPARE Stem Express to PP: PP charges $100 for the exact same thing that SE gets several thousand for. PP is NOT turning a profit."
Which, if true, leads to another question: Is StemExpress paying off individuals at Planned Parenthood to make sure the SE gets the 10x markup, rather than someone else? Because where you have a gov't regulated market leading to 10x markups, it's "really f'n valuable" to be the one who gets the price controlled goods.
Perhaps PP is totally legal in its pricing, and she "wants a Lamborghini" as a kickback for sending business their way.
Does PP "profit" ?
If you listen closely, PP has several times acknowledged that they believe the federal prohibition accepting valuable consideration limits them to accepting a reimbursement for actual costs incurred – which appears totally true.
The statute itself gives an exhaustive list of the types of **reasonable** costs that can be reimbursed – those related to "transportation, implantation, processing, preservation, quality control, or storage."
PP has several times – corroborated by the ex-StemExpress employee – cited use of the space of its clinics as the permissible basis for getting reimbursed, since procurement company workers are the ones doing the processing, transportation, consenting of patients, etc.
So, does the statute require the clinics to have incurred a ***unique***, actual cost in donating tissue or may they slough off part of their operating expenses by essentially charging tissue procurement companies for the use of their space?
Defining the only permissible payments as reimbursements suggests strongly that PP needs to be incurring a unique expense and cannot just offer a spare back room to StemExpress employees for them to work in while accepting from StemExpress a Ritz Carleton high rate for the rental of that space.
@Clark:
Cute attempt to cover your biases and sneering at pro-choice individuals – of which I am not, to be plain, unlike yourself – but it doesn't work when people can read your previous posts and your Twitter and know your actual agenda. What is most irritating that you like to hijack posts not your own to do it.
For a member of the Dread Ilk, you are an awful liar. But not as bad as Cernovich.
I will grant the legitimacy of Ken's argument under the Near v. Minnesota rationale, but I wish he were making it on behalf of any other party but this one.
To answer asdf's question above, the sting in To Catch A Predator is run by the police, and the Predator people are just filming. That's how they get around the two party rule; it's a police undercover investigation.
(The first few shows were not, but they were not in two-party jurisdictions. All of them since then have had police involvement and generally end in arrest.)
The sting I would hate to see would be one that harms an individual, irreparably. From what I see, news outlets wind up existing to sell advertising, not present the news. I can imagine such a sting video in the context of a priest and child (or teacher and student, or any other similar relationship) and then said video being pulled apart and put back together to create something scandalous that people would want to watch – and giving an impression of something is just totally untrue. In this case, the sting video will ruin the life of the priest (or teacher, or or or) and very likely it would stay ruined no matter what was done later to clear his name. I suppose prior restraint wouldn't be the answer even in a case like this, since we can see how important it is to bring things like this to light when they're true. All we can really do is make the probability of a plaintiff being able to recover an astronomical award so high that cases of reckless or wilful speech are chilled. I can't help but think of Rolling Stone right now and how much I hope everyone involved in publishing that UVA story rots. So, you can tell, not biased.